087-NLR-NLR-V-67-S.-R.-VAN-TWEST-Appellant-and-U.-D.-LEWIS-APPUHAMY-Respondent.pdf
1964Present: Alles, J.
S. R. VAN TWEST, Appellant, and U. D. LEWIS APPUHAMY,
Respondent
8. C. 34j1963—C. R. Colombo, 83,249
Rent Restriction Act—Sections 18 (b) and 15—Money paid in advance by tenant—Presumption that it was given to be set off against future arrears of rent.
Any stun of money paid in advance by a tenant to his landlord at the com-mencement of a tenancy must be presumed to be an advance against futurearrears of rent unless it can be unequivocally related to a deposit claimed by thelandlord or is held by the Court to be an illegal payment in contravention ofsection 8 (6) of the Rent Restriction Act.
PPEAL from a judgment of the Court of Requests, Colombo.
J.A. L. Cooray, with L. W. Atkidathmudali, for defendant-appellant.B. J. Fernando, for plaintiff-respondent.
Cur. adv. wU.
1 (1944) 45 N. L. R. 251 at p. 253.
October 9, 1964. Ai.i.es, J.—
The plaintiff in this case sued the defendant, his tenant, for ejectmentfrom the premises in question on two grounds :
(а)that the defendant had been in arrears of rent from 1.3.62 to the
date of the action (16.10.62) and
(б)that the premises were reasonably required as a residence for the
plaintiff’s eldest daughter.
On the question of reasonable requirement the learned Commissionerhas held in favour of the defendant but in giving judgment for theplaintiff the learned Commissioner decided that the defendant was inarrears of rent. The only question that arises in this appeal is whetherthe Commissioner was justified in coming to the conclusion that the rentwas in arrear for the relevant period on the evidence led in the case.
Briefly, the facts that gave rise to the present appeal are as follows :—
The defendant became the plaintiff’s tenant in January, 1960. Thepremises in question were described in the schedule to the plaint as a
house bearing Assessment Nos. 100/1 and part of No. 100/2 standing on
the land called Delgahawatta It is not in dispute that the
authorised rent of the premises was Its. 25 per month, and that thedefendant paid rent at the rate of Rs. 30 per month. The plaintiff’sposition is that he charged Rs. 25 for the house and an extra Rs. 5 forthe produce of the coconut trees on No. 100/2. In July, 1962, theplaintiff says that he took possession of the coconut trees and that there-after the rent was reduced from Rs. 30 to Rs. 25 per month. Counselfor the defendant-appellant submits that as the authorised rent for thepremises was only Rs. 25 it was not open to the plaintiff to charge anextra sum for the produce of the coconut trees, as the defendant wasentitled to the produce without any extra payment. The learned Commis-sioner has given judgment to the plaintiff on the basis that the rent wasRs. 30 even though he has held that the authorised rent was Rs. 25. TheCommissioner has therefore misdirected himself on this point and notgiven the defendant credit for the excess rent paid by him. This amountsto Rs. 130 for the duration of the tenancy. Counsel submits that whenthis sum is added to the advance paid by the defendant in January 1960,there is a sum of Rs. 265 to the credit of the defendant which, whendeducted from the sum of Rs. 200 claimed as arrears of rent, leaves abalance of Rs. 65 in the defendant’s favour. He therefore maintainsthat the defendant is not in arrear of rent.
In this appeal, Counsel also challenged the true character of the
advance ’ of Rs. 135 given by the defendant to the plaintiff at thecommencement of the tenancy.
In giving evidence at the trial the plaintiff stated that he took thissum as a deposit from the defendant and said that he was prepared toreturn this money to the defendant when he vacated the premises. Thedefendant stated that the plaintiff asked him for an advance of six monthsrent at Rs. 55 a month but was prepared to accept a lump sum of Rs. 300.The sum of Rs. 135, he said, represented the balance due after thededuction of three months r nt at Rs. 55 per month. Although thelearned Commissioner has rejected the defendant’s evidence that hepaid Rs. 300 to the plaintiff, the defendant has at least given an explana-tion as to how the sum of Rs. 135 was computed. The plaintiff on theother hand is unable to give any explanation as to how this sum wascalculated. The plaintiff in his plaint ' was prepared to give credit tothe defendant in the sum of Rs. 135 paid by him on 2.1.60 as an advance ’but in his evidence he said he was only prepared to return this sum afterthe defendant vacated the premises. I have no doubt that the plaintiff’sposition in Court with regard to this sum, which was the same positionadvanced before me by Counsel on his behalf, was an after-thought.Counsel for the plaintiff cited in support, the decisions of this Court inDavid Appuhamy v Subramaniam 1 and Meera v Jayawardene 2. In theformer case, the tenant paid the landlord two months rent in advanceand also deposited a sum of Rs. 500 on the agreement that it was to beheld by the landlord and paid back to the tenant when the premiseswere handed over to him. Pulle, J. held that:
‘ the holding of the deposit by the landlord to be returned in terms ofthe tenancy agreement did not constitute a debt which could be setoff against the rent. ’
The case of David Appuhamy v. Subramaniam was considered and dis-tinguished by T. S. Fernando, J. in the later case of Meera v. Jayawardene.In that case there was clear and unequivocal evidence that a sum ofRs. 750 was ‘ to be taken and accounted as and for the rent of the lastsix months of the term. ’ and T. S. Fernando, J. said that the decision inDavid Appuhamy v. Subramaniam was clearly inapplicable to the factsIn Meera v. Jayawardene as the latter case was not * concerned with asum of money agreed to be received as a deposit but with a sum of moneyaccepted to be accounted as and for rent
"What therefore is the true character of the advance of Rs. 135 paid bythe defendant to the plaintiff at the commencement of the tenancy ?The receipt D2 given by the defendant to the plaintiff is in the followingterm 8 :—
' Received from S. R. Van Twest a sum of Rs. One Hundred andThirty-five (Rs. 135/-) only being deposit as advance for house No. 100/1,Kawdana Road, Dehiwela. ’
The plaintiff came into Court praying for * judgment against the defend-ant in the sum of Rs. 90/-…. ’ This sum of Rs. 90/- was com-
puted after giving credit to the defendant for the sum of Rs. 135 paidas advance. As I said earlier, this position is different from the evidencegiven by the plaintiff in Court. He was only prepared to return this sum
* (1953) 55 N. L. R. 397.* (1955) S3 N. L. R. 159.
after the premises were vacated and this he could only achieve after hehas succeeded in this appeal. Even the learned Commissioner under-stood that this amount was to be set off against the arrears of rent due.It seems to me therefore that having regard to all the evidence availablethe plaintiff is not entitled to claim this sum as a deposit to be refundedafter the defendant vacates the premises. In dealing with the characterof any payment made by a tenant at the commencement of a tenancythe Court must have due regard to the provisions of Section 8 (b) of theRent Restriction Act which deals with the payment of unauthorisedadvances. It will be only in the exceptional case that a landlord wouldask for a deposit from a tenant. One can envisage such a situation when,for instance, there is a possibility of damage to the leased premises as aresult of the tenant’s occupation. Otherwise, the demand for a depositcan ordinarily be only construed as an advance against the rent dueunless of course the tenant is in pari delicto and makes payment to thelandlord in contrav- ntion of Section 8 (6). Our Courts have held that atenant is precluded from receiving from the landlord any premium paidby him in contravention of Section 8 as a condition of he grant of thetenancy—Vitharne v. deZylva 1—and that payment of key money is illegaland cannot be set off by the tenant against arrears of rent—see Dahalan v.Yoosoof 2.
Unless therefore any advance c n be unequivocally related to a depositclaimed by the landlord or has been held by the Court to be an illegalpayment in contravention of Section 8(6) of the Rent Restriction Ordin-ance it must be presumed that the payment is an advance against thearrears of rent. Applying the maxim omnia praesumuntur rite esse actasuch an inference would be reasonable, rebuttable only by clear and cogentevidence to the contrary. I am satisfied in the present case that the sum ofRs. 135 was given by the defendant to the plaintiff as an advance againstthe rent due and was a lawful deduction under Section 15 of the Act.The defendant is therefore not in arrears of rent and is entitled to succeedin this appeal. The appeal is allowed with costs in both Courts.
Appeal allowed.
1 (1954) 56 N. L. R. 57.
– (1964) 66 N. L. R. 143.