BASNAYAKLE J.—Alles v. M.uthuaamy
1948Present: Basnayake J.ARLES, Appellant, and MUTHUSAMY, Respondent8. C. 112—C. R. Colombo, 6,647
Landlord and tenant—Action for ejectment—Settlement—Acceptance thereafterby landlord of rent in excess of what was due—Failure by defendant tokeep terms of settlement—Right of landlord to execute decree—Newtenancy—Rent Restriction Ordinance, section 9.
The mere acceptance of a payment in excess of what is due -to thelandlord during the current period of tenancy does not create a newtenancy at the expiration of that period. A tenant who has paid morethan the authorized rent has his statutory remedy in section 9 of theRent Restriction Ordinance.
■A-PPE.AL from a judgment of the Commissioner of Requests,'Colombo.
8. Subramaniam, for the plaintiff, appellant.
H. W. Tambiah, for the defendant, respondent.
Cur. adv. vult.
December 20, 1948. Basnayake J.—
The plaintiff-appellant (hereinafter referred to as the plaintiff) and thedefendant-respondent (hereinafter referred to as the defendant) arelandlord and tenant. The plaintiff instituted this action in order torecover arrears of rent and to have the defendant ejected from thepremises of which he was tenant. The defendant did not file answerand the learned Commissioner entered judgment by default against him.The defendant appeared later and moved under section 823 (3) of theCivil Procedure Code to have the judgment set aside. Oh July 8, 1947,the date fixed for inquiry into the defendant’s motion, both parties were
BASNAYAKE J.—Alles v. Al'ithusamy
represented by counsel who informed the court that the parties hadarrived at a settlement. The learned Commissioner’s record of thesettlement reads :
“ It is agreed that all rents and damages to December, 1946, havebeen paid and settled. Of consent judgment for plaintiff for Rs. 462being rent and damages up to the end of June,' 1947. Ejectment andfurther damages at Rs. 77 per month from 1.7.47. If defendant payseach month’s damages together with Rs. 77 out of arrears by the 25thof each month as from 25.7.47 writ of ejectment not to be executedtill 31.12.47. Defendant undertakes to give vacant possession on31.12.47. Defendant says he is living in the premises with boardersbut when he leaves he will give vacant possession.”
On July 8, 1947, decree was entered in terms of the agreement. Thedefendant failed to keep his xmde^taking to vacate the premises onDecember 31, 1947, and on February 27, 1948, the plaintiff applied forexecution of his decree under sect on 224 of the Civil Procedure Codestating the particulars required therein. That application was allowedon the same day. It must be assumed that it was allowed after thecourt had satisfied itself as required by section 225 of the Civil ProcedureCode that the application was substantially in conformity with thedirections in section 224 and that the applicant was entitled to obtainexecution.
On March 1, 1948, the defendant’s proctor moved to recall the writ andstay execution, but not in accordance with section 343 (2} of the CivilProcedure Code, for no petition as required therein was filed. –
The main ground of objection was that the plaintiff had demanded andreceived a sum of Rs. 6 in excess of the amount due to him for the monthsof October, November, and December, 1947, and that a new tenancyhad been created thereby.
On April 22, 1948, the learned Commissioner heard the parties in regardto the defendant’s motion and dismissed the plaintiff’s application forwrit which he had allowed on February 27, 1948. The defendant statedin his evidence that after the decree was entered the plaintiff demanded,a sum of Rs. 6 in excess of the amount of Rs. 77 per mensem awarded asdamages for the peridd July, 1947, to December, 1947, during which thedefendant was permitted to remain in occupation of the premises, andthat he paid each month by cheque Rs. 160 being Rs. 77 out of at rearsand Rs. 83 by way of damages. Under cross-examination he states thatthe plaintiff asked for a higher amount by way of monthly damages inOctober, 1947,. after he had paid for three months at the rate of Rs. 154per mensem. The plaintiff denies that he asked for Rs. 6 more than the. amount of monthly damages awarded. He says that after making threepayments of Rs. 154 each in cash the defendant began in October to sendthrough his proctor to the plaintiff’s proctor cheques of Rs. 160 eachmonth for October, November and December, 1947, although the amountpayable was Rs. 154. Three such payments had been made by December,1947. He denies that there was a fresh contract of tenancy and that heasked for higher damages.
BASUTAYAKE J.—Alles v. Muthusamy
I am unable to agree with the learned Commissioner that the acceptanceby the plaintiff of a few rupees in excess of the minimum amount thedefendant was obliged to pay under the decree constitutes a new tenancy.Although out of the arrears of Rs. 462 due to the plaintiff the defendantwas bound under the decree to pay only Rs. 77 each month, there wasnothing to prevent his paying more each month if he was so minded,as he would be entitled to credit in respect of whatever amount he paidin reduction of arrears. There is no evidence that each remittance wasaccompanied by a note stating how it was made up. Even if there hadbeen such a note, the plaintiff was entitled to appropriate any extrasum that was remitted to him each month against the arrears due tohim.
Sub-section (1a) of section 3 of the Rent Restriction Ordinance, No. 60of 1942, declares that it is unlawful for a tenant to pay or offer to pay arent of an amount in excess of the authorised rent, while section 7 of thatOrdinance forbids a tenant to pay or offer to pay as a condition of thecontinuance of the tenancy of any premises, in addition to the rent of-such premises, any premium, commission, gratuity or other like paymentor pecuniary consideration whatsoever. If the defendant’s story is true,he has himself on his own showing acted contrary to the provisions of theOrdinance. He cannot be allowed to claim the benefit of his own wrong.If he has paid more than the authorised rent, he has his statutory remedyin section 9 of the Ordinance whereby he is entitled to recover the excesspaid by him from the rent payable by him to the landlord withoutprejudice to any other method of recovery.
I find myself unable to agree with the learned Commissioner that theoverpayment of Rs. 6 for each of the months October, November, andDecember, 1947, creates a new tenancy. When a valid notice has beengiven, a new tenancy can be created only by an express or impliedagreement. In the instant ease there is no convincing evidence of suchan agreement. The mere acceptance of a payment in excess of what isdue to the landlord during the current period of tenancy does not create anew tenancy at the expiration thereof. It has been held in Bowden v.liallison 1 that since the Rent Restriction Acts the mere acceptance ofrent by the landlord and the payment of rent by the tenant-is no evidenceof a new tenancy between them. The reason for this view is thus statedby Goddard C.J. : “ The position is that when a notice to quit expires,,the house being protected by the Rent Restriction Acts, the landlordmay not be able to get possession unless he can show certain things.He may not, therefore, attempt to get possession, and the mere fact thathe accepts the rent does not show that there is a new contractual tenancy.It is equally consistent with what is known as a statutory tenancy. Asthe justices have not found here anything except that the tenantremained in possession after the notice to quit had expired in 1939, andhad paid his rent, the inference must be that he remained there as astatutory tenant.”
Section 8a of our Rent Restriction Ordinance, No. 6 of 1942, asamended by Ordinance No. 20 of 1946, appears to be designed to1 (1948) 1 AU E. R. 841 at 843,
GrRATIAJEN J.—ValUpuram v. Postmaster-General
create a statutory tenancy in respect of tenants who are protected bythe provisions of the Rent Restriction Ordinance from ejectment fromthe premises they occupy.
I am unable to uphold the learned Commissioner’s order dismissing theapplication of the plaintiff which he had already allowed.
I therefore set aside the order appealed from, with costs, and direct awrit of execution to issue to the Fiscal.
ALLIES, Appellant, and MUTHUSAMY, Respondent