014-NLR-NLR-V-50-ALIKANU-Appellant-and-MARIKAR-Respondent.pdf
WIJEYTEVVAEDENE S.P.J.—Alikanu v. Marikar.
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1948Present: Wijeyewardene S.P.J.ALIKANU, Appellant, and MARIKAR, Respondent.
S. G. 188— C. R. Colombo, 9,787.
Rent Restriction Ordinance—Notice, to quit by tenant—Agreement to deliverpossession—Ordinance No. 60 of 1942—’Section 8 (6).
An agreement by a tenant to deliver possession or determine thetenancy by a certain date is not such a notice to quit as is contemplatedby section 8 (b) of the Rent Restriction Ordinance.
A.PPEAL from a judgment of the Commissioner of Requests, Colombo.H. W. Tambiah, for defendant, appellant.
M.S. Abdulla, for plaintiff, respondent.
Our. adv. vult.
November 29, 1948. Wijeyewardene S.P.J.—
The defendant was a tenant under the plaintiff of the properties bearingassessment Nos. 126 and 128, Bankshall Street. In 1947, the plaintiffasked the defendant to quit both the properties. The defendant gave1 (1893) 3 Ceylon Law Reports 91.2 (1926) 28 N. L. R. 314.
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WIJKY EWABDESTE S.P.J.—Alikanu v. Marikar.
plaintiff quiet possession of No. 126 and gave a writing Pi with, regard toNo. 128 at the request of the plaintiff. That writing reads :—
“ I {the tenant) do hereby engage from (the landlord) the premisesNo. 128, Bankshall Street, Colombo, as from the 1st day of September,1947, for a period of two months.
And I have deposited with the landlord Rs. 150 to be held by himand accounted for at the termination of the tenancy on my redeliveryof quiet and vacant possession of the premises to my landlord on the31.JL0.47.
And I further agree to deliver or cause to be delivered quiet andvacant possession of the said premises on the 31.10.47 -withoutinvoking the benefits of the provisions of the Rent Restriction Ordinanceor provisions of any other Ordinance or Ordinances restricting theright of landlord to collect rent or to sue the tenant in ejectment.
And I do hereby give notice that I will quit on the 31.10.47 anddeliver or cause to be delivered quiet and vacant possession as aforesaidand the notice hereby given is deemed to be a notice under section 8 (a)of the Rent Restriction Ordinance, No. 60 of 1942, now in force.
And I shall pay the monthly rental of Rs. 75 on or before the 1st dayof each and every month.
In the event of one month’s rent being in arrear and unpaid I shallimmediately quit and deliver peaceful possession of the said premisesto my landlord his agent or nominee without any dispute whatever.”The question to be decided on this appeal is whether PI could beregarded as a notice to quit as contemplated by section 8 (a) of the RentRestriction Ordinance, No. 60 of 1942. Reading the document as awhole and bearing in mind the fact that it was given at the plaintiff’srequest I have reached the decision that PI is merely an agreementembodying the terms on which the plaintiff was willing to permit thedefendant to continue in occupation of No. 128. No doubt, the defendanthas said expressly that PI should be regarded as a notice to quit undersection 8 (a) of the Rent Restriction Ordinance. But that cannot alterthe true nature of the document. To quote the words of Scrutton L.J.in Barton v. Fincham1, a Court should be slow tc to hold out anyencouragement that a landlord may make it a term of all his lettings ”that section 8 of the Ordinance shall not apply.
The appellant’s Counsel cited De Vries v. Sparksa. That is a casedecided under section 5 (1) (c) of the Increase of Rent and MortgageInterest (Restrictions) Act, 1920, as amended by the Act of 1923. It istrue that the English Act differs from our Ordinance in requiring,in addition to a notice to quit given by a tenant, proof of some seriousprejudice of a particular nature that would be caused to the landlord,if the plaintiff failed to quit the premises. But, in spite of thatdifference I think the case of De Vries v. Sparks {supra) is an authorityfor the proposition that “ a notice to quit and an agreement to surrenderor determine a tenancy are essentially different in their nature ”.
I allow the appeal and set aside the decree entered by the Commissioner.The appellant will have the costs here and in the Court below.
Appeal allowed.
■ {1927) 137 Law Times Reports 441.
1 {1921) 2 K. B. 291.