102-NLR-NLR-V-55-A.-H.-M.-SIDEEK-Appellant-and-A.-R.-M.-SAINAMBU-NATCHIYA-Respondent.pdf
GRATIAEN' J.—Sideek v. Sainambu Natchiya
367
1954Present : Gratiaen J.
A. H. M. SIDEEK, Appellant, and A. R. M. SAINAMBUNATCHIYA, Respondent
S. C. 87—C. R. Kalutara, 1,604
Lessor and lessee—Expiration of notarial lease—Right of lessee to continue in occu-pation as statutory tenant—Duty to pay rent as it falls due—Tender of rent—Instance when it is not necessary—Rent Restriction Act, No. 29 of 1948,88. 13 (1) (a) and 14.
A tenant who enjoys, under the Rent Restriction Act, a statutory right ofoccupation notwithstanding the termination of the earlier contract of tenancymust continue to pay “ rent ” at the original monthly rate ; if he fails to honourthis obligation and is in arrear of “ rent ” for one month after it has becomedue, section 13 (1) (a) may be brought into operation to eject him.
A tenant need not formally tender payment of rent due when the landlordhas in anticipation refused to accept it.
^^.PPEAL Horn a judgment of the Court of Requests, Kalutara.
. H. W. Jayewardene, with A. C. M. Uvais, for the defendant appellant.
H. W. Tambiah, with S. Sharvananda and A. M. Ameen, for the plaintiffrespondent.
Cur. adv. vult.
April 8, 1954. Gratiaen J.—
This is an action for the ejectment of a tenant from premises to whichthe Rent Restriction Act, No. 29 of 1948, applies.
The plaintiff had placed the defendant in occupation of the premisesas her tenant under the terms of a notarial lease for a period of threeyears commencing on 1st February, 1949. The agreed rent of Rs. 1,000for the entire period of three years was paid in advance.‘
Under the general law, the lease automatically expired by effluxionof time on 31st January, 1952, and the plaintiff had taken the additionalprecaution of serving a notice on the defendant calling upon bim to quiton that date because “ she required the premises thereafter for the useof her sons Nevertheless, the plaintiff’s cause of action was postponeduntil she could prove that one or other of the conditions laid down bysection 13 of the Act had been satisfied.
A Divisional Bench of this Court has authoritatively decided (1) thatthe protection of the Act is equally applicable where the tenant’s con-tractual rights of occupation, having been created under a notarial lease,come to an end, and (2) that in rent restriction legislation the word“ tenant ” must generally be construed as including “ a person who hasat one time occupied the position of a tenant, even though at the time ofaction the tenancy was no longer in existence ”—Guneratne v. Thelenis x.
. 1 (1946) 47 N. L. R. 433.
368GRATIAEN J.—Sideeh v. Sainanibu Nalchiya
Tiie present action was instituted on 5th. April, 1952, i.e., two monthsand six days after the termination of the notarial lease The plaintiffclaimed that the provisions of section 13 were satisfied because :
she reasonably required the premises “ for her own trade and
business ” within the meaning of section 13 (1) (c) ; and
the rent had been “ in arrears for one month after it-had become
due ” within the meaning of section 13 (1) (a).
On both these grounds she asked for a decree of ejectment, and fordamages from 1st February, 1952, at the rate of Rs. 27-69 per mensem.
With regard to the first ground relied on by the plaintiff, the evidenceclearly established that she required the premises for a proposed “tradeor business on behalf of her sons and not for her own purposes. Section13 (1) (c) does not work a forfeiture of the statutory rights of the tenantin such a case.
As for the second ground relied on by the plaintiff, the learned Com-missioner held that the defendant had lost his statutory protection by(at the latest) the end of March, 1952, because he had neither paid nortendered the “ rent ” for the previous month—i.e., after the contracthad been terminated. He accordingly ordered a decfee for ejectment.
It is a nice question whether a so-called “ statutory tenant ” whosecontractual rights have come to an end can fairly be said to be under anobligation to pay “ rent ” within the meaning of section 13 (1) (a). Asit is now settled law that in many contexts the word “ tenant ” in theAct includes a .statutory tenant, I certainly find it difficult to imaginethat Parliament could have intended to place such a protected person(in regard to the making of regular payments for his continued occupationof the premises) in a more favourable position than he had previouslyenjoyed under the terms of the contract. It is for this reason that inEngland section 15 of the corresponding Act of 1920 provides that astatutory tenant must, in order to retain his statutory protection, observeall the terms of the original contract. The local Act is, however, silenton this all-important point, although section 14 expressly provides fora revival (both prospectively and retrospectively) of the earlier contrac-tual rights and occupation after an action for ejectment has been dismissed.Possibly, the remedy lies in a “ broad, practical common-sense interpre-tation so as to effect the intention of the legislature ”—Read v.v Goater 1.
It seems to me implicit in the Act that, so long as a tenant enjoys astatutory right of occupation notwithstanding the termination of theearlier contract, a statutory obligation is imposed on him to pay monthly“ rent ” at the original contractual rate ; and if he fails to honour this obli-gation, section 13 (1) (a) may be brought into operation to deprive him ofthe protection which he had previously enjoyed. Iij the case of an or-dinary monthly tenancy, the amount payable as monthly “ rent ” andthe date it falls due can be ascertained without much difficulty. In acase such as the present, however, the problem is less easily solved, but isnot incapable of a reasonable judicial solution should the parties fail toagree aB to the measure of their mutual rights and obligations.
1 {1921) 1 K. B. 611 at 615.
Premathiratne v. Elo Fernando
3(ii)
I am satisfied that the defendant was liable to pay or at least to tenderto the plaintiff statutory “ rent ” for February 1952, and succeedingmonths at the rate of Rs. 27-77 per mensem (i.e., calculated by dividingthe previous contractual rent of Rs. 1,000 for three years by 36) in orderto keep his statutory protection intact. Although no such paymentswere actually made even at the end of the relevant month, I have cometo the conclusion that, upon the evidence, the defendant was stillentitled to claim his statutory protection. Let me explain why.
Luring the months of February and March, 1952, frequent discussionstook place at which the defendant consistently asked to be permittedto remain in occupation on payment of the original rental or an evenhigher rental, but the plaintiff’s husband (who was acting on her behalf)made it clear that she insisted on being restored to possession immediatelyfor the benefit of her sons.
Having examined the evidence, I am perfectly satisfied that the defen-dant had expressed his willingness to pay the rental for February, 1952,and for succeeding months, and that he would have done so except forthe fact that the plaintiff’s husband made it clear that no payment ofany kind would be accepted (for fear, no doubt, that acceptance mightprejudice the result of the contemplated proceedings for ejectment).After the action commenced, the defendant has regularly brought intoCourt the amounts which the plaintiff claims as “ rent ” for each month.
A formal tender of payment is not necessary where the creditor inanticipation refuses to accept it—Wessels : Law of Contract, Vol. 1,p. 706, para. 2341. A “ refusal in anticipation ” is the only reasonableinference which can be drawn from the attitude adopted by the plaintiff’shusband during his negotiations with the defendant who, to his knowledge,was perfectly willing and able to pay Rs. 27-77 per mensem (or evenmore) for his continued occupation either as contractual tenant undera fresh agreement or in the alternative as a statutory tenant protected bythe Rent Restriction Act.
I allow the appeal and dismiss the plaintiff’s action with costs in bothCourts. The plaintiff is however entitled to a payment order for allsums deposited as “ rent ” by the defendant during the progress of theaction.
Appeal allowed.