BASNAYAJtE, C.J.—Cooke, v. Per era
I960Present :Basnayake, C. J., and H. N. G. Fernando, J.A. V. M. COOKE, Appellant, and 3D. K. W. PERERA, Respondent
8. C. 328—D. C. Kandy, 7465J MR
Rent Restriction Act, No. 29 of 1948—Excessive rent paid in advance—Right oftenant to recover it—Illegal contract—Sections 8, 15.
In an action brought by a landlord for arrears of rent due from tbe tenant,tbe tenant is not entitled to claim a deduction of any excessive rent paid in ad-vance by him in contravention of section 8 of the Kent Kestriction Act. In sucha case the maxim in pari delicto potior est conditio defendentis is applicable.
Appeal from a judgment of the 3District Court, Kandy.F. G. Perera, for Plaintiff-Appellant.jR. Manikkavasagar, for Defendant-Respondent.
March 16, 1960. Basnayake, C.J.—
This is an action for arrears of rent due from the defendant to theplaintiff. The plaintiff states that one P. U. de La Motte, acting forand on behalf of her, let to the defendant premises bearing assessmentNo. 2, Asgiriya Road, Kandy, at a rental of Rs. 51 /08 per month ; thatP. U. de La Motte died on the 3rd of June 1957 and that there is due tothe plaintiff a sum of Rs. 919/44 as arrears of rent from the defendant forthe period 1st February 1957 to 31st July 1958. The defendant admitsthe tenancy and states that no rent was paid after the death of P. IT. deLa Motte as he was unaware on whom the property devolved and to whomrent had to be paid. • He further stated that to secure the tenancy hepaid a sum of Rs. 1,500 to P. XJ. de La Motte and prayed that the rentdue from him be set off against the sum of Rs. 1,500 paid by him and thathe be given credit in that sum. The learned District Judge has heldthat the defendant is entitled to have the sum of Rs. 1,500 deductedfrom the rent due from him. It is submitted in appeal that section 15of the Rent Restriction Act, No. 29 of 1948, authorises the recoveryby a tenant of only any amount in excess of the authorised rent of thepremises paid by the tenant, and that as the payment of the sum ofRs. 1,500 was in contravention of section 8 which provides that—
** No person shall, as a condition of the grant, renewal or continuanceof the tenancy of any premises to which this Act applies, demand orreceive, or pay or offer to pay—
(a) as an advance of rent, any amount exceeding the authorised rentfor a period of three months ; or
BASNAYAKE, C. J.—Coohe v. Perera
(6) in addition to the rent of such premises, any premium, commission,gratuity or other like payment or pecuniary considerationwhatsoever. ”
the defendant is not entitled to recover the excess amount paid by himto the landlord. Section 15 provides—
. ** Where any tenant of any premises to which this Act applies haspaid by way of rent to the landlord, in respect of any period commencingon or after the appointed date, any amount in excess of the authorised"1rent of those premises, such tenant shall be entitled to recover theexcess amount from the landlord, and may, without prejudice to anyother method of recovery, deduct such excess amount from the rentpayable by him to the landlord. ”
The payment of the sum of Rs. 1,500 is described in the receipt producedby the defendant as being an te advance undertaking to rent to himpremises No. 6 Asgiriya Road, Kandy, owned by me. ” The contentionof learned counsel for the appellant is therefore entitled to succeedas section 15 of the Rent Restriction Act does not authorise the recoveryof such an advance. Both parties having acted in contravention of sectionS and the recovery of the illegal payment not being authorised the courtswill not entertain an action for recovery unless it appears that the partieswere not in pari delicto. In the instant case the parties were in paridelicto for both the landlord and the tenant were acting in contraventionof the statute which forbids a person to receive or pay a premium. Themaxim in pari delicto potior est conditio defendentis would thereforeapply.
It has been brought to our notice by learned counsel that the reporteddecisions of this court on this point are in conflict. In the case ofVithame v. de Zilvax it has been held that section 15 does not authorisethe recovery of any payment made in contravention of section 8 of theRent Restriction Act. In the case of Amarasehara v. A beygunawardene 2a contrary view has been taken. We are unable to agree with the decisionin Amarasehara's case (supra). The decision in Vithame v. de Zilva(supra) accords with our view.
The appeal is therefore allowed and the defendant’s claim of Rs. 1,500against the plaintiff is dismissed. We accordingly enter judgment forthe plaintiff for a sum of Rs. 919/44 as prayed for with costs. Theplaintiff is entitled to the costs of the appeal.
H. N. G. Fernando, J.—I agree.
1 (1954) 56 N. L. It. 57.
* (1955) 56 N. L. B. 561.
A. V. M. COOKE, Appellant, and D. K. W. PERERA, Respondent