Adamjee LuJcmanjee da Sons, Ltd. v. Ponniah Pitted
1959Presmt:Basnayake, C.J.ADAMJEE LIJKMANJEE fe SONS, LTD., Appellant, and A. PONNIAHPHiLAI, Respondent3. G. 73—G. R. Colombo, 66,760
Landlord and tenant—Monthly tenancy—Late when rent must be paid—Rent Res-triction Act, No. 29 of 1948—Section 13 (a)-—Arrears of rent—Practice oflandlord to accept late payments of rent—Effect on right of landlord to ejecttenant—Prevention of Frauds Ordinance, sr 2.
In the case of & monthly tenancy the rent must be paid monthly either atthe beginning of the m031th, -when there is a stipulation to that effect, or at theend of it, when there is no stipulation that the rent should be paid in advance.
For the purpose of section 13 (1) (a) of the Rent Restriction Aet, ISTo. 29 of1948, a tenant would be liable to be ejected if the rent is in arrear for one monthafter the due date, although it has been the practice for the landlord to acceptthe rent once in several months.
towopian v. jaAjmd'bOth (±t j «>o !N. h H. 4/9, not xcllcwcd.
1 43 G. W. N. 6S9 P. C.
132 BASNATAKE, C. J.—Adamjee Lukmanjee <fc Sons, Ltd. v. Ponniah Pillai
J^^-PPEAXi from a judgment of the Court of Requests, Colombo.
B. W. Jayewardene, Q.G., with B. 8. G. Ratwsfte, for Plaintiff-Appellant.
Clarence de Silva, with R. D. B. Jayasekera, for Defendant-Respondent.
April 24,1959. Baskayakjs, C.J.—
The plaintiff is a limited liability company which owns a number ofhouses in a place known, as liukmanjee Square. The defendant has beena tenant for a number of years in house No. 14 owned by the plaintiff inthat Square. The monthly rent was Rs. 25/28. It would appear fromdocuments PI to Pll that the defendant did not pay his rent monthly,but had got into the habit of paying the overdue rent once in three or fourmonths, whenever reminded by the plaintiff that he was in arrear. FromOctober 1951 till November 1955 the plaintiff had from time to time senteleven notices drawing the attention of the defendant to the fact that heWas in arrear. The plaintiff seeks to come within the ambit of proviso (a)of section 13 (1) of the Rent Restriction Act, No. 29 of 1948, whichenables a landlord, without the authorisation of the Board, to institutean action for the ejectment of a tenant, where the rent has been in arrearfor one month after it has become due. The plaintiff states that thedefendant had been in arrear in respect of the rent for each of the monthsApril, May, June, August and September 1956 for more than a monthafter it became due. The overdue rent was paid after the notice termi-nating the contract of tenancy was given. The defendant claimed thatthe rent was payable by him not monthly, but at irregular intervals:once in three or four months or even once a year. The Secretary andAccountant of the plaintiff stated that under the contract of tenancy thedefendant was obliged to pay rent every month at the plaintiff’s office atGrandpass, but that though the defendant was irregular in his payments,the plaintiff was indulgent, and sent reminders to him to pay the rentwhenever it fell into arrear.
The learned trial Judge seems to have wrongly inferred that there wasno obligation to pay rent monthly from the fact that the plaintiff wasindulgent and permitted the defendant to fall into arrear and pay his rentwhenever demanded. It is not denied that the tenancy was a monthlytenancy, and in the case of a monthly tenancy the rent must be paidmonthly either at the beginning of the month, when there is a stipulationto that effect, or at the end of it, where payment of rent in advance isnot stipulated. In the instant case there was no stipulation that the rentshould be paid in advance ; the defendant was therefore in law bound topay the rent immediately upon the termination of each month (Pothier,Letting and Hiring, Part III s. 134 p. 55, Mulligan’s Translation). Ad-mittedly he did not do so and was therefore in arrear for one month afterthe rent had become due. The plaintiff was therefore entitled to bringthis action to have him ejected.
Sinnathamby v. YoJrammah
Learned counsel for the respondent relies on the case of Suppiah v.Kandiah x. In that case my brother H. N. G. Fernando held that wherethe practice had been for the landlord to accept the rent once in severalmonths, the question whether the tenant is in arrear must be consideredin terms of that practice. With great respect to my brother I find myselfunable to agree with that decision. As stated above it is settled law thatin the case of a monthly tenancy the rent becofnes due immediately uponthe expiration of a month unless there is an agreement to pay monthlyin advance. Payment of rent at greater intervals than a month is in-consistent with a contract of monthly tenancy. A contract which pro-vides for payment of rent at greater intervals than a month would be of noavail in law unless it is in writing and signed by the party mailing it inthe presence of a notary and two witnesses (s. 2 Prevention of FraudsOrdinance). Such a contract cannot be implied. The indulgence of thelandlord does not have the effect of altering the law, nor is the tenantentitled to claim any benefit from his own laches to the prejudice of thelandlord. For the purpose of section 13 (1) (a) of the Rent RestrictionAct, No. 29 of 1948, the rent would be in arrear if it is not paid on thedue date, and if it is in arrear for one month after the due date, the land-lord becomes entitled to institute an action in ejectment.
I think the learned trial Judge is wrong in holding that the plaintiffhas failed to establish that the rent had been in arrear for one monthafter it had become due. I accordingly allow the appeal with costs, anddeclare the plaintiff entitled to an order as prayed for in the plaint.