123-NLR-NLR-V-65-A.-L.-M.-SANOON-Appellant-and-K.-V.-K.-THEYVANDERA-RAJAH-Respondent.pdf
574H. 17. G. 'FJ3R£!A2T£)0, J.—Sanoort t>. 1'J^nxrndsraTojcJi
1963Present: S&zmm, J ., and H. N. 0. Fernando, J.
A. L. M. SALOON, Appear, and K. V. K. EHEYVANDBRA-_-BkLXAH, ^Respondent
5. a. 433—D. C. Colombo, 766/Z
Lease—Lessee in arrears of rent—Power of Court to grant equitable relief againstforfeiture.
Where a leSBde ia in arrears of rent the Courts in Ceylon have jurisdiction togrant him equitable relief against forfeiture if he pays up the arrears.
Appeal from a judgment of the District Court, Colombo.
V. Perera, Q.C.. with H. D. Tambiah, C. G. Weeramantry and
N.S. A. GunatiUeke, for the Plaintiff-Appellant.
C. Ranganathan. with 3. Sharvananda and MissSuriya Wider emasinghe,for the Defendant-Respondent.
Cur. adv. vult.
November 14, 1963. H. N. G. Febjtahdo, J.—
The Defendant in this action has since 1948 been in occupation assub-tenant and thereafter as tenant of certain business premises inColombo. The property was formerly owned in half shares by twopersons, Junaid and Mrs. Kuthdoos. In July 1956 Junaid transferredhis half share to the Plaintiff and requested the Defendant by letterto pay the rent to the Plaintiff. On September 26th 1957 Mrs. Kuthdoossold her half share to the Plaintiff and wrote the letter P6 (a) of thesame date to the Defendant. In this letter she stated that the Defendantwas in arrears of rent for the months of July, August and September1957 and requested the Defendant to settle the arrears with the Plaintiffand to pay the future rents to him. This letter was transmittedwith a covering letter from the Plaintiff’s Proctor also dated 26thSeptember 1957 requesting payment to the Plaintiff of the unpaid andfuture rents. The proctor added that the Defendant was in arrearsof rent to the Plaintiff since July 1956, referring presumably to thehalf share of rent which had become payable to the Plaintiff by reasonof the earlier transfer of July 1956. This letter was followed immedi-ately by the Proctor’s letter of 27th September 1957 giving the Defendantnotice to quit and surrender the premises on the 31st October 1957.
On the 1st of November 1957 the defendant's proctor wrote to theplaintiff’s proctor on behalf of the defendant’s wife, stating that theplaintiff was well aware that defendant had been a lunatic for sometime and stating also that he had been adjudged of unsound mind onthe 23rd September- 1957. Subsequently on 8th November defendant’sproctor a ant a cheque for Rs. 450 which was accepted witbtmc prejjS,oe.
H. 1ST. G. FERNANDO, J.—Sanoon v. Theyvanderarajah
575
The learned District Judge held on the evidence that the defendanthad been in arrears of rent from January to September 1957 in respectof one half share and from July to September 1957 in respect of theother half share. He held also that the payment of Rs. 450 made inNovember 1957 was more than-suificient-to cover the amount in arrears.He dismissed the plaintiff’s. action on the ground that the Court hasjurisdiction to grant equitable relief against forfeiture if in fact a tenantdoes pay up the rent in arrears. The only question for considerationin the appeal is whether this jurisdiction exists; if it does there is nodoubt that on the proved facts the defendant is entitled to that relief.The earliest reported case is referred to in Rajaratnam's Digest andin a judgment of this Court in 2 Supreme Court Reports at page 35:(Sandford v. Peter). Withers J. states in the judgment that in the 1875case reported in Bevan and SiebeVs Reports Cayley C.J. and Dias J.affirmed a judgment which “ granted relief to a lessee against forfeiturefor non-payment of rent”. Rajaratnam’s note is to the effect that thetenant was in equity entitled to possess the land on paying the arrearsof rent.
In Sandford v. Peter, Lawrie A.C.J. acted upon the principle ofEnglish law that “ In equity the construction put on a clause offorfeiture of a lease on non-payment of rent is that it is a mere securityfor the payment of rent, and that as the breach of that covenant iscapable of a just compensation a Court of equity may award thecompensation and abstain from enforcing the forefeiture.”
The above mentioned decision was much criticised in Silva v. Dassa-nayake 1 by Bonser C.J., and Withers J.- sitting on the same Benchhad to confess that he could find no authority in the Roman-Dutch Lawfor granting such relief to a tenant.
Nevertheless in 1904 (Perera v. Thaliff a) this Court granted relief ina case where the tenant had failed to perform his covenant to pay theMunicipal rates on the leased property.
In 1905 (3 Balasingham Reports 215), Layard C.J. and Moncrieff J.again granted relief stating that “ Courts of Law and Courts of Equityare always now very loth to decree forfeiture for a term in a lease, andwhen a party pays the amount due, even where the. proper’ time forpayment has expired, it is usual to accept such payment and allow theterm of the lease to continue.” In 1907 [Perera v. Pereraz) WoodRenton J. also referred at some length to the jurisdiction of the Courtsin England to grant equitable relief against forfeiture. He thoughtalso that the same power could be exercised under the Roman-DutchLaw, but reference to the passage in Voet (19. 2. IS) upon which thelearned Judge appeared to rely does not support the view that reliefwould be granted against forfeiture for non-payment of rent.^
[1898) 3>N. L. R. 248.
(1907) 10 N, l. 2?, 230.
3 (1904) 8 N. h. R. 118,
576H. iT. G. 3?B®HA2?rDO,^L—&femoon v. ThtyvcmSeratagcA
In Agar v. Ranewaka1, L&seallss C.J. 'with Wood Beufcoa J. agreeingstated that “ it is bey#a& qnae&on. that tbs Efeghsh pmnmplae of givingrelief against a fmfaiturs on the gTonnd pf noQ^Baj^eap.. of rent havebeen introduced into Ceylon and are now a part of our law,s. lastly,there is the high authority of the opinion of Wijeyewardene J. (1940)41 N. L. B.. 499, that in an action for cancellation of a lease a defendantis no doubt entitled to ask for equitable relief.
Counsel for the Plaintiff in the present appeal has argued that theobservation of Wijeyewardene J. was made obiter. It appears from thejudgment however that the arrears had been paid up by the defendantafter the due date and even after the institution of the action forcancellation of the lease. It may be that upon the facts of the particularcase the Court would not in any event have granted relief, but it is clearthat Wijeyewardene J. himself would have considered a ^ant of reliefand only declined to do so because the tenant in that case had failed toask for the relief and the Court was accordingly nob obliged to give it.There was therefore in the judgment clear acceptance of the principlethat under our law as declared in previous judgments of the SupremeCourt the jurisdiction to grant relief against forfeiture for non-paymentof rent does exist.
Having regard to this long line of decisions to which I have referred,I must take it as well settled law that the principle which obtained underthe English Law is followed in Ceylon, and I do not think it necessaryto accede to Counsel's request that the question be considered by a fullerBench.
The appeal is dismissed with costs.
SaisSOsti, J.—I agree.
Appeal dismissed.
* un*) is if, l. r. m.