AMANIAM v. PATHMANATHAN

038-SLLR-1984-V1-SUBRAMANIAM-v.-PATHMANATHAN.pdf


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Sri Lanka Law Reports
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SUBRAMANIAMv.
PATHMANATHANSUPREME COURT
SAMARAKOON, Q.C.. C.J.. COUN-THOME'. J. AND ABDUL CADER. J.
S.C. APPEAL No. 41 /83 – C.A. No. 649/76(F)-D.C. COLOMBO B/393/LMARCH 14. 1984
Landlord and tenant – Landlord transferring ownership of tenanted,premises – Attornment to new owner – Failure to pay rent to newowner – Notice – Terminatidn of tenancy by repudiation.
The appellant was the tenant of certain premises under one R. who was the owner. R.by deed No. 17 of 1.4.1971 transferred the premises to his wife the respondent whocalled upon the appellant to attorn to her from 1.1.1972. After some earliercorrespondence, the appellant on 13.3.1974 wrote P 5 to the respondent'sattorney-at-law requesting confirmation of fl's signature on a letter calling upon him (theappellant) to attorn to the respondent and of the fact that the premises had not vestedin the Commissioner of National Housing. By his letter (P 6) of 17,9.1974 therespondent's attomey-at-law gave the required confirmation. The appellant howeverdid not pay any rents to the respondent. On 20.12.74 the respondent filed action in theDistrict Court of Colombo seeking the ejectment of the appellant and damages. Therespondent filed answer bringing in to the credit of the case the rent from 1.1.1972 to31.10.1975. Though the pleadings in die case lacked clarity the Court of Appeal heldthis was a tenancy action. Title had been pleaded to show that the respondent was thenew owner and repudiation of the contract of tenancy had been pleaded to show thatsuch a tenant is not entitled to notice to quit nor to claim any rights to a tenancy.
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Subramaniam v. Pathmanaihan (Samarakoon, C. J.)
253
Held-
The appellant's failure to pay the rents even after he received confirmation by P 6that it was R who had signed the letter requesting attornment to the respondentand that the premises had not vested in the Commissioner of Naiional Housing,was a repudiation of his tenancy and such a person is not entitled to notice.Pleading a termination in the plaint therefore did not arise.
The Rent Act required three months' notice to be given. Although there was nopleading or issue on the point, the notice P 7 was received in evidence withoutobjection. Therefore there was compliance with the requirement of the Rent Actand the respondent was entitled to maintain the action.
Cases referred to
Edirisinghe v. Pare/, (1979) 79 (1) N.LR. 217. 219.
David Silva v. Madanayake, (1967) 69 N.LR. 396
Hassanv. Nagaria. (1969) 75 N.LR. 335, 336.
APPEAL from a judgment of the Court of Appeal.
I. G N. deJ. Seneviratne with S. Parathalingam for defendant-appellant.H. L. da Silva S. A., with W. D. D. Weerasinghelor plaintiff-respondent.
Cur. adv. vult.
April 5, 1984
SAMARAKOON, C.J.This is an appeal with the leave of the Court of Appeal for decision bythis Court on two issues raised by that Court. The appellant was thetenant of premises he occupied under one M. Muthiapillai since theyear 1969. Muthiapillai died and his son M. Radhakrishnan becamethe owner of the premises and the appellant attorned to him and paidrents to him till the end of December, 1971. By Deed No. 17 dated1.4.1971 Radhakrishnan transferred the premises „to his wife, therespondent in this appeal, By letter dated 24.1.72 <P 1) therespondent, acting by her attorney-at-law, requested the appellant topay her all rents from 1.1.1972. By letter dated 1.2.1972 (P 2) theappellant, acting by his attorney-at-law,, requested the respondent'sattorney to forward to him a letter from " the previous landlord Mr.Radhakrishnan' authorising the appellant to make payments to therespondent. He also asked the particulars of the Deed of Transfer. Aletter dated 1 st November, 1973 (P 4) signed by Radhakrishnan wasforwarded to the appellant. This letter requested the appellant to make
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payments to the respondent. The appellant appears to have doubtedthe genuineness of the signature of Radhakrishnan on P 4 and hetherefore wrote through his attorney a letter dated 13.3.1974 (P 5)to the respondent's attorney asking him to confirm that it was in factsigned by Radhakrishnan. He also sought information as to whetherthe premises had vested in the Commissioner of National Housing.The attorney added-
" On your confirmation that the said letter is genuine my client
shall pay to your client all arrears of rent."
By letter dated 17.9.1974 (P 6) the respondent's attorney replied tothe attorney of the appellant providing the necessary confirmation andstated that the premises had not vested in the Commissioner ofNational Housing. No rents were however forthcoming. On 20.12.74the respondent instituted action in the District Court of Colombopraying for-
a declaration that the appellant was in wrongful and unlawfuloccupation of the premises ;
for a decree in ejectment; and
for damages at Rs. 50 per month from date of action untilejectment.
On 26.5.75 the appellant tendered to the respondent a cheque forRs. 960/72 being rents due from 1.1.1972 to 31.12.73 less a sumof Rs. 331/87 being rates paid to the Colombo Municipal Council.This cheque was returned to the appellant by the respondent. Theappellant filed answer on 29.10.1975 denying the averments in theplaint and pleadin'- the facts set out above. He also pleaded-
that no rents were paid for the period subsequent to 1.1.74' as the plaintiff had not furnished proof that the said land andpremises had not vested in the Commissioner of NationalHousing
that he was not wrongfully in arrears of rents and the failure topay rents was due to the default of the plaintiff (respondent) innot providing the documents asked for by him ; and
that the action cannot be maintained as the tenancy had notbeen duly terminated.
sc
Subramaniam v. Pathmanathan (Samarakoon, C.J.) .
255
With his answer he brought into Court to the credit of the case a sumof Rs. 1171/95 on account of rent from 1.1.1972 to 31.10.1975.
After trial the District Judge entered judgment in favour of therespondent. The appellant's appeal to the Court of Appeal did notsucceed. Both Courts were of the view that the action as constitutedon the plaint read with the admissions on record and the issues-framed was not one of rei vindicatio based on title but a tenancy actionbased on a breach of contract. The first question for decision is statedby the Court of Appeal as follows
* Could the plaintiff respondent have maintained an action in
respect of premises governed by the Rent Act of 1972 without
pleading termination of tenancy ?'
It appears to me that the manner in which the plaint has been draftedhas been the cause of some confusion and the source of needlessargument. It recites the ownership by reference to the Deed ofTransfer. No devolution of title has been pleaded. It recites the factthat the appellant declined to pay rents to the respondent and that theappellant by his conduct repudiated the contract of tenancy betweenhimself and the, appellant and therefore was not entitled to any reliefunder the Rent Act, No. 7 of 1972. What this latter pleading seeks toconvey is hard to comprehend. The sum and substance of it is that theappellant declined to pay rent to the new owner. The plaint goes on toplace a value" on the subject matter of the action ", Perhaps he valuesthe premises at this figure – which again is hard to accept. It thenprays for damages from date of action. Nowhere does it claim arrearsof rent or damages equivalent to the monthly rent. It does not pray fora declaration of title but asks for a decree in ejectment. It has beennumbered as a land action. The answer has done no better. It'doesnot even plead the benefit of the Rent Act. It only pleads the absenceof a termination of tenancy which could mean one under theCommon Law or one under the Statute Law.
4
On the first date of trial the dispute too£a different course. Counselfor respondent raised three issues. They are-
t
“ (1) Has the defendant paid any rent to the plaintiff after shebecame the owner of the premises ?
If not, is the defendant in wrongful occupation of the premises ?
If issues 1 and 2 are answered in the affirmative, is the plaintiffentitled to the relief prayed for in the plaint ?'
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' Sri Lanka Law Reports
(1984] 1 Sri L.R.
There was no necessity for these issues for the reason .that the factswere admitted of record. It is recorded at the outset that therespondent admits that the appellant is the lawful owner of thepremises in suit (this fact was denied in the answer), Further that theappellant had been requested by the respondent in writing to payrents. This must be read with the admission in the answer that norents were paid to the respondent in response to those requests. It isalso recorded that by consent of parties damages were fixed at Rs. 50per mensem. The entire case of the respondent was thereforeconceded and the burden was on,the appellant to prove that he had aright to continue in occupation. His counsel then raised the crucialissue as follows
"(4) Is the defendant in occupation of the premises as the lawfultenant of the plaintiff ?”
A tenancy has been referred to in para 5 of the plaint in a quizzicalmanner. For good measure his counsel raised on the next date of trialthe following issues based on para 5 of the plaint—
“(5) As pleaded in paragraph 5 of the plaint has the defendantrepudiated the contract of tenancy between himself and theplaintiff ?
If not, can the plaintiff have and maintain this action ?“
If the appellant succeeded in proving that he was the lawful tenantthen other questions arose due to the fact that an admission wasentered of record that the premises were governed by the provisionsof the Rent Act, No. 7 of 1972. No further pleadings were filed but the• respondent was permitted to mark in evidence notice to quit dated13th November, 1973, (P7) which gave the appellant three monthsnotice to vacate the premises.
The Court of Appeal has held that this was an action on a tenancyand I am of opinion that it was correct in so holding. Title has beenpleaded to show that the respondent was the new owner andtherefore by operation of law she stepped into the shoes of the sellerwfio was the landlord and that therefore she was entitled to the rents.Repudiation of the contract of tenancy is pleaded because of thedecisions of the Supreme Court that such a tenant is neither entitled tonotice to quit nor to claim any rights to a tenancy. Vide the cases citedin Edirisinghe v. Patel i’]). The appellant did not deny the tenancy. Heonly wanted confirmation of a kind which was provided on 17.9.1974
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Subramaniam v. Pathmanathan (Samarakoon. C.J.)
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by P6. He was silent thereafter and did not pay any rent. In his answerfiled 0^29.10.1975 he pleaded that rents were not paid firstlybecause the respondent failed to furnish proof that the premises werenot vested in the Commissioner of National Housing and secondlybecause the respondent failed to provide the documents asked for byhim. Neither reason is true to fact and therefore both areunacceptable. Having elected to remain in occupation he was boundto pay rent to the respondent. In this case he did not fulfil hisundertaking to pay even though he received the confirmation he askedfor by his letter P5. The respondent was. in these circumstances,entitled to sue the appellant in ejectment. David Silva v. Madanayake(2). As stated earlier a termination of tenancy has been pleaded inpara 5 of the plaint by a plea that the appellant himself repudiated thetenancy. This is a termination by him. The appellant did not expresslyadmit the tenancy. He held the respondent at bay for a long timewithout either an admission or denial of the tenancy. In his answerfiled in Court he gave two reasons for not paying rent which werepatently false. Such a person is not entitled to a notice to quit. Hassanv. Nagaria (3). Pleading a termination irVhe plaint therefore does notarise.
Issue (b) reads as follows
"(£>) Is it competent for a Court to enter judgment against theappellant on the ground of termination of a tenancy within theRent Act where no issue in relation to the question oftermination of tenancy has been taken up at any stage."
The Rent Act required a period of three months notice to be given. Itwas neither pleaded nor raised in issue. But such notice was given byP7 which document was marked in evidence without objection. Therewas therefore proof bf compliance with the requirement of the RentAct and the respondent was therefore entitled to maintain the action.Pleadings have been defective and no issue therefore could.be raised.But these were corrected during the trial. In the result there was proofthat the tenancy had been lawfully terminated and that the actioncould be maintained under the provisions of section 22 (3) (a) of theRent Act. An order of ejectment was therefore correctly made.
In view of the above I dismiss the appeal with costs here and in theCourt of Appeal.
COUN THOME*. J.-l agree.
ABDUL CtoER, J.~l agree.
Appeal dismissed.