120-NLR-NLR-V-56-ANNAMALAI-CHETTIAR-Appellant-and-B.-S.-GREASY-et-al-Respondent.pdf
Annatnalai Chettiar v. Qreaay
477
1955Present : Gunasekara J. and SansonI J.
ANNAMALAT CHETTIAR, Appellant, and. B. S. GREASY et at.,RespondentsS. C. 348—D. C. Kurutiegala, 8,064
Hcut Itestriction Act, No. 29 oj 1948—Section 13—Tender of rent—Landlord’s refusalto accept it—Effect of such refusal—“ Arrearof rent ”—Section 27—“Landlord ”.
When, in a tenancy to which section 13 of the Rent Restriction Act is appli-cable, the landlord makes it clear to his tenant that he will not accept furtherpayments of rent there is do obligation on the tenant to tender!the rents as andwhen they fall duo. The tenant, however, remains liable to pay the rent whendemanded and must bring the arrears into Court when an action in ejectment isinstituted by the landlord.
\ hen a person purchases from a landlord rented premises to which theRout Restriction Act applies he becomes the tenant's “ landlord " by virtue ofthe definition of that term in section 27 of the Act.
478SANSON! .T.—AnnatiuiUti'OheUiftr v. Oretisti
A
XJtPPEAL from a judgment of the District Court, Kurunegnla.H. W. Tambiah, for the plaintiff appellant.
No appearance for the 1st defendant respondent.
»S Sharvananda, for the 2nd defendant respondent.
Cur. adv. viilft
March 25, 1955. Sansoni J.—
The plaintiff purchased the premises in dispute on 23rd July, 1951, fromtho former owner who had rented them to the 1st defendant, who hadin turn rented a portion of the premises to the 2nd defendant.On 30th August, 1951, the plaintiff through his proctors wrote to the 1stdefendant to quit tho premises on or before 1st November, 1951, as he re-quired them “ for his own business and occupation ”. It is quite clearfrom the evidence that the 1st defendant sent the plaintiff Money Orders inpayment of tho rent as it fell due for the months of August, September andOctober, 1951, but the Money Orders were returned by the plaintiff’sproctors with their covering letter 1D3 dated 1st November, 1951. Thoreason givon in that letter is that the plaintiff has not accepted the 1stdefendant as his tenant and is filing action for ejectment. This action wasfiled on 2nd November, 1951. The plaint set out only two grounds onwhich exemption from the statutory bar against ejectment contained insection 13 of the Rent Restriction Act, No. 29 of 1948 was claimed—sub-letting, and requirement of the premises for the purposes of the plaintiff’strade and business. It is significant, however, that the money claimof Rs. 151 ‘50 was “ for use and occupation ” of the premises for August,September and October, 1951 and not for arrears of rent; nor was itploadedthat the 1st defendant was the plaintiff’s tenant. Tiie 1st defendant in hisanswer pleaded that the action could not be maintained as the plaintiffhad refused to accept him as a tenant and had refused to accopt rentwhen it was tendered.
The action then took a strange turn. On 22nd April, 1953, an amendedplaint was filed and certain new averments were made. The plaintiffnow pleaded that the premises were required for the purpose of residenceby the plaintiff's son ; he also pleaded that rent was in arrear from August1951 to 31st March, 1953 and accordingly claimed exemption from theprovisions of sections 13 of the Rent Restriction Act. No objection appearsto have been raised to these amendments nor was an amended answerfiled. At least one interesting question that seemed to arise for discussion was therefore not put in issue. X refer to the new ground of non-payment of rent for the period subsequent to the filiug of this action. It
SANSON I J.—Annamalui Oheltiar v. Qreaay
470
was a ground which was non-existent at the time of institution, yet it wasallowed to be brought in by way of amendment as an additional groundon which to claim exemption from the statutory bar already referred to.The learned District Judge held against the plaintiff on all grounds. Theonly matter thut has boen seriously pressed in appeal is the non-paymentof rent during the period August 1951 to March 1953 : the only defencethat can bo raised to that, as the pleadings and issues stand, is thatpayment was rendored unnecessary by the plaintiff’s conduct.
Dr. Tambiuh urged that the 1st defendant should have tendered the rentas it fell due evory month, and that his failure to do so rendered him liableto ejectment on account of the rent being in arrears. He submitted thatthe refusal to accept rent indicated in the lotter 1D3 did not absolve the1st defendant from the obligation of tendering rent for the subsequentmonths. I do not agree. I construe the letter 1D3 as an election by theplaintiff not to accept his vendor’s tenant as his tenant after he purchasedtheso promises. Now although he was entitled to follow this course andcould have sued his vendor’s tenant in ejectment under the law as it stoodbefore rent restriction was introduced, the Rent Restriction Act intro-duced a new creature called a statutory tenant. Under the Act the eject-ment of the vendor’s tenant is permitted only on one or more of thegrounds specified in section 13 of the Act, and the plaintiff became the1st defondant’s “ landlord ” by virtue of the definition of that term con-tained in section 27 of tho Act. It seems to have boon thought, to judgeby the letter 1D3, that when the plaintiff purchased these premises hebecame entitled to troat the 1st defendant as though ho were a trespasserand no longer a tenant, but this was a wrong view to take and the plaintiffseems to have realized that when he filed his amended plaint. Tho lotter1D3 contains what is, to my mind, a repudiation of the 1st defendant’scharacter as a tenant under the plaintiff and this, when coupled with thoreturn of the rent, amounted to an unequivocal intimation by the plaintiffthat any payment or tender for subsequent months would also be refused.
Weerasooriya J. in Vadivcl Chetty v. Abdu 1 and Gratiaen J. inSideek r. Sainambu Nalchiya2 have hold that when the landlord has madeit clear that he will not accept further payments of rent there is noobligation on the tenant to tender the rents as and when they fall due.Tho rule has long been established that a party is not required to makea formal tender where it appears that the tender would have been moreform, and that the party to whom it was made would have refused toaccept the money : see Hunter v. Daniel 3 and the authorities quotedbv Gratiaen J. in Wijeyesekera <fc Co. v. The Principal Collector ofCu.'iloHt* 4. They refute the argument of Dr. Tambiah that therecan be no waiver of a tender before the time for performance has arrived.Tho claim for ejectment must therefore fail.
Tho 1st defendant still remained liable, however, to pay tho rent whendemanded and he should havo brought the arrears into Court whenthis action was lilcil. .Since lie did not object to the amendment of thoplaint he should have brought into Court tho further arrears claimed
1 1 11/-, ;,A:. L. It. 07.
* {1051) 55 -V. L. It. 307.
• 1 Hare 420—67 E. B. 712.‘ {1051) 53 N. L. B. 329.
480
8ANSONI J.—Annafnalai Ohettiar v. Greasy
in (ho amended plaint. His failure to do bo also deprives him of the rightto claim his costs. While the learned District Judge was right indismissing the plaintiff's claim for ejectment he erred in dismissing thoentire action with costs. He should have given the plaintiff judgmentfor the arrears of rent up to 30th April, 1953.
I would therefore set aside the decree appealed from and direct thata decree be entered ordering the 1st defendant to pay tho plaintiff asum of Rs. 1,110 being arrears of rent from 1st August, 1951 to 30th April,1953. The plaintiff and the 1st defendant will boar their own coststhroughout, but tho plaintiff must pay the 2nd defendant his costs inboth Courts.
Gunasekara J.—I agree.
Decree varied.