Slrisena v. Mutukumarana and Others
v.MUTUKUMARANA AND OTHERS
COURT OF APPEALWEERASURIYA, J. (P/CA) ANDBALAPATABENDI, J.
CA NO. 850/94 (F)
DC HAMBANTOTA NO. 169/RENOVEMBER 12, 13 AND 15, 2001
Rent Act, No. 7 of 1972 – Subletting – Waiver – Acquiescence – Consent -Condonation – Applicability – When there is no prior written consent – Is theright to a decree for ejectment extinguished by condonation?
The plaintiff-respondent instituted action against the 1st defendant-respondent and2nd defendant-appellant seeking their ejectment on the ground that the 1stdefendant-respondent has sublet the premises to the 2nd defendant-appellantwithout prior written authority. The 1st defendant-respondent averred that hehanded over the premises to the plaintiff-respondent, the 2nd defendant-appellantclaimed that he was the tenant of the premises.
The District Court held with the plaintiff-respondent.
On appeal –
The plaintiff-respondent on her own admission knew for certain in 1981,that premises had been sublet to the 2nd defendant-appellant, she madeno protest of any kind and continued to accept rent from the 2nddefendant-appellant.
It was open to the plaintiff-respondent to terminate the tenancy which wasnot availed of.
Condonation or waiver would operate as a bar to the exercise of thelandlords statutory rights to secure the ejectment of the tenant on the groundof subletting.
Sri Lanka Law Reports
 2 Sri LR.
There was privity of contract established between the plaintiff-respondentand the 2nd defendant-appellant.
There is overwhelming evidence of waiver of the statutory right of theplaintiff-respondent to have the 1st defendant-respondent and 2nd defendant-appellant evicted.
APPEAL from the judgment of the District Court of Hambantota.
Cases referred to :
Robert v. Rashad – 55 NLR 517.
Pigera v. Mackeen – 59 NLR 21.
Chettlnad Corporation v. Gamage – 62 NLR86.
Hyde v. Pimley – 1952 2 All ER 102.
Elphinstone v. The Monkland Iron and CaneLtd.-198611AC332.
Abdul Cader v. Menike – 1983 BASL Journal Reportsvol.IpartI.
Fernando v. Samaraweera – 52 NLR 278.
Rohan Sahabandu with Ms. Sitari Jayasundera for 2nd defendant-appellant.
W. Dayaratne with Ms. K. Kulatunga, Ms. Ganga Kumarasinghe for the plaintiff-respondent.
Cur. adv. vult.
February 22, 2002
WEERASURIYA, J. (P/CA)
The plaintiff-respondent brought this action against the 1st defendant-respondent and 2nd defendant-appellant, seeking their ejectment fromthe premises morefully described in the schedule to the plaint on theground that 1st defendant-respondent had sublet the premises tothe 2nd defendant-appellant without prior written sanction.
The 1st defendant-respondent in his answer averred that he handedover the premises to the landlord and that from 09. 10. 1990, he hadceased to be in possession. The 2nd defendant-appellant in his
Sirisena v. Mutukumarana and Others (Weerasuriya, J. (P/CA) 255
answer, claiming that he was the tenant of the premises from 1979prayed for dismissal of the action.10
This case proceeded to trial on 9 issues and the learned DistrictJudge by his judgment dated 04. 10. 1994, entered judgment for theplaintiff-respondent. The present appeal is from the aforesaid judgment.
At the hearing of this appeal, learned Counsel appearing for the2nd defendant-appellant submitted that learned District Judge hasfailed to consider the question whether the plaintiff-respondent’s rightto a decree for ejectment of the tenant and the subtenant on theground of subletting of the premises is extinguished by condonationon the part of the plaintiff-respondent.
The parties had admitted the following matters at the commencement 20of the trial in the District Court.
That the plaintiff-respondent’s mother SamarawickremaSumanawathie by deed of lease bearing No. 2209, dated09. 09. 1974, had leased the premisies for a period of 15years to the 1st defendant-respondent.
That the said Samarawickrema Sumanawathie by deed ofgift bearing No. 2034, dated 30. 05.1980, gifted the aforesaidpremises to the plaintiff-respondent and by operation of lawshe became the landlord of the premises.
That the 1st defendant-respondent was the tenant of the 30plaintiff-respondent.
That the 1st defendant-respondent abandoned the premisesand that he had ceased to possess the said premises.
That the notice of termination had been received.
Sri Lanka Law Reports
 2 Sri L.R.
In the light of the above admissions what was in issue was whetherthe 2nd defendant-appellant was in unlawful possession of thesepremises from 09. 09. 1989.
It is not in dispute that Samarawickrema Sumawathie, the motherof the plaintiff-respondent died on 06. 08. 1980, having given a leaseof the premises for a period of 15 years to the 1st defendant-respondent, in terms of the lease bond No. 2209, dated 09. 09. 1974(P1).
It is necessary to ascertain the 2nd defendant-appellant’s date ofentry into the premises as a subtenant under the 1st defendant-respondent.
The 2nd defendant-appellant in his testimony asserted that he cameinto the premises in 1974 and that the 1st defendant-respondent lefthis business in 1979 handing over all the utensils at the premises.The position of the 2nd defendant-appellant was that, from 1979 hecarried on the business without the 1st defendant-respondent withthe knowledge and acquiescence of Samarwickrema Sumanawathie.
Several rent receipts were produced by the 2nd defendant-appellantmarked 2D2 – 2D11, covering the period from 1979 – 1989. Theplaintiff-respondent conceded that 2nd defendant-appellant brought therent money and that rent was accepted on behalf of the 1st defendant-respondent. It is to be noted that except in the rent receipt marked2D4, no express reference has been made in other receipts that moneywas accepted from the 1st defendant-respondent. The other receiptsindicate that money was being accepted as rent on account of thedeed of lease given in favour of K. A. Danny (1st defendant-respondent).Therefore, it is to be seen that the assertion of the 2nd defendant-appellant that he paid rent money has been substantiated bydocumentary evidence as well as oral testimony of the plaintiff-respondent.
Sirisena v. Mutukumarana and Others (Weerasuriya, J. (P/CA) 257
This plaintiff-respondent conceded that after the death of her motherin 1980, she met Danny, 1st defendant-respondent at Colombo andasked him to attorn to her and that she came to know that he hadsublet the premises to 2nd defendant-appellant. She stated that shenever consented to this arrangement and the 1st defendant-respondent 70has committed a wrong on her.
It was the position of the 2nd defendant-appellant that bothSamarawickrema Sumanawathie (mother) and the plaintiff-respondentknew in 1978 that premises in suit had been sublet by the 1stdefendant-respondent to him.
The plaintiff-respondent admitted that in 1981, after the death ofher mother, she met the 1st defendant-respondent at Colombo torequest him to attorn to her and that she came to know that thepremises had been sublet to 2nd defendant-appellant. Taking intoconsideration the evidence of the plaintiff-respondent, it would bemanifest that at least from 1981, she knew that the 1st defendant- sorespondent had sublet the premises to 2nd defendant-appellant.
The assertion that premises were governed by the provisions ofthe Pent Act has not been disputed by the plaintiff-respondent. Theparties seem to have proceeded on the basis that premises in suitwere governed by the provisions of the Rent Act.
However, the question to be examined is whether the plaintiff-respondent’s right to a decree for ejectment of the 1st defendant-respondent and the 2nd defendant-appellant is extinguished bycondonation on the part of the plaintiff-respondent.
In the case of Robert v. RashacP) where a tenant wrongfully sublet 90a portion of the premises without the landlord’s prior written consent,it was held that –
Sri Lanka Law Reports
12002) 2 Sri L.R.
“When the landlord becomes aware of the contravention, hemust forthwith elect whether or not to treat the contract as terminated.
If he elects to enforce this statutory remedy, the tenant's statutoryprotection under section 13 is automatically forfeited. But, if he doesnot so elect, the contravention is condoned, and the contractualtenancy continues.”
This decision was followed in Pigera v. Mackeen. However, acontrary view was taken in the case of Chettinad Corporation v. 100
Gamage on the basis that reasoning in Robert v. Rashad (supra)was based on the English case which construed an enactment differentfrom our own to cover a case of implied consent. In Robert v. Rashad(supra) Gratien, J. referred to certain dicta in English cases of Hydev. Pimle^A) and Elphinstone v. The Monkland Iron and Coal, Ltd.®in support of the principle that the conduct of the landlord in acceptingrents for subsequent periods with clear knowledge of the sublettingamounts to a waiver of his statutory right to forfeit the tenancy andalso to an implied consent.
It is to be observed that decision in Hyde v. Pimley (supra) was nobased not only on consent but also on waiver. Therefore, the decisionin Robert v. Rashad (supra) was founded on sound reasoning.
The decision in Robert v. Rashad (supra) was further explainedby Sinnathamby, J. in Pigera v. Mackeen (supra) in the followingmanner :
“I do not take the view that Gratien, J. intended to state thatthe landlord should immediately file action. He may elect forthwithto terminate the tenancy and nevertheless give the tenant time.
All that is required is that election should be made forthwith andnot so long afterwards as to suggest condonation."120
Waiver is the voluntary abandonment with full knowledge of therelevant facts of a right or benefit. The waiver would be express when
Sirisena v. Mutukumarana and Others (Weerasuriya, J. (P/CA) 259
the person entitled to the right or benefit expressly and in terms givesit up and implied when such person does or acquiesces in somethingwhich is inconsistent with the right or benefit to which he is entitled.(Vide Abdul Cader v. Menike).i6)
It was held in Fernando v. Samaraweeram:
“An intention to waive a right or benefit to which a person isentitled is never presumed. The presumption is against waiver forthough everyone is under our law at liberty to renounce any benefit 130to which he is entitled the intention to waive a right or benefitto which a person is entitled cannot be lightly inferred, but mustclearly appear from his words or conduct. The onus of proof ofwaiver is on the person who asserts it. Where the tenant allegesthat the landlord waived his rights he must prove that the landlordwith full knowledge of his rights decided to abandon them eitherexpressly or by unambiguous conduct inconsistent with anintention to enforce them."
The question before us is whether there was a condonation orwaiver established in the present case.140
The plaintiff-respondent on her own admission knew for certain in1981, that premises had been sublet to the 2nd defendant-appellantby the 1st defendant-respondent.
However, she made no protest of any kind and continued to acceptrent from the 2nd defendant-appellant purporting to issue receiptsin the name of the 1st defendant-respondent. It was open to theplaintiff-respondent to terminate the tenancy which was not availedof.
It could be contended that mere delay to seek the enforcementof statutory right should not deprive a landlord from seeking its 150invocation. However, this is not a mere delay on the part of the plaintiff-
Sri Lanka Law Reports
 2 Sri L.R.
respondent in that she has allowed the 2nd defendant-appellant topay rent from 1979-1989 purporting to issue receipts in the name ofthe 1st defendant-respondent. Therefore, she has accepted the factthat 2nd defendant-appellant was the subtenant under the 1st defendant-respondent. The fact that lease bond would expire in 1989 is no barto the plaintiff-respondent to terminate the tenancy agreement, in 1981when she found that the premises had been sublet without her writtenconsent. Therefore, condonation or waiver should operate as a bar
to the exercise of the landlord’s statutory right to secure the ejectmentof the tenant on the ground of subletting.
The 2nd defendant-appellant has gone further to assert that hehas established privity of contract with the plaintiff-respondent. Hiscontention was that he paid the rent out of his money and that henever paid rent to the 1st defendant-respondent. To decide this appeal,it is not necessary to go into the question whether there was a privityof contract between the plaintiff-respondent and the 2nd defendant-appellant since there is overwhelming evidence of the waiver ofstatutory right of the plaintiff-respondent to have the 1st defendant-respondent and 2nd defendant-appellant evicted.
Learned District Judge has failed to consider the question of waiver.He has answered issue No. 6 in the negative which was the issuerelating to the question of waiver by the plaintiff-respondent withoutany consideration of the evidence.
For the above reasons, the judgment of the learned District Judgedated 04. 10. 1994 is set aside. This appeal is allowed without costs.
BALAPATABENDI, J. – I agree.
SIRISENA v. MUTUKUMARANA AND OTHERS