025-SLLR-SLLR-1982-2-APPUHAMY-v.-SENEVIRATNE.pdf
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Appuhamy v. Kusumalalha
601
APPUHAMY
v.
SENEVIRATNE
SUPREME COURT
WANASUNDERA. J.. WIMALARATNE. J.. AND SOZA. J.
S.C. 42/81
A. 98/80
C. AVISSAWELLA 15294/REJULY 16. 1982.
Landlord and tenant – Rent and ejectment – Rent Act, No. 7 of 1972 (as amendedby Law No. 10 of 1977), section 22(1) (1A) and (1C) – Settlement by parties inCourt – Waiver of statutory requirement by tenant – Validity of waiver.
The landlord filed action for ejectment of tenant on the grounds that the tenantwas in arrears of rent for three months and that the premises were reasonably' required for the occupation of the landlord.
The standard rent of the premises was below Rs. 100/- p.m. and therefore thelandlord in accordance with section 22(1) (1 A) caused notice to be served onthe Commissioner of National Housing.
However at the trial on 16.1.80 the parties entered into a settlement viz. "Bothparties state that they have arrived at a settlement of this case. The defendantconsents to hand over possession of the premises to the plaintiff on or before31.12.81. The defendant will not be paying rent to the plaintiff during this pe-riod …” Judgment was entered in terms of this settlement.
On 25.2.80 before decree was entered the defendant moved the Court of Appealto have the judgment revised on the grounds that the District Judge had nopower to dispense with a statutory requirement that the Commissioner of NationalHousing should find him alternative accommodation before the tenant isejected.
Held •
It was open to the tenant Jo waive the requirement and to agree to vacate thepremises even before the Commissioner was able to provide him with alternativeaccommodation. The maxim “quilibet potest renuntiare juri pro se introducto,"applies here.
602
Sri Lanka Law Reports
(1982) 2 S L R.
Cases referred to:
Nugera v. Richardson (1949) SI N.L.R. 116.
Dep v. Nagaratnam (1954) 56 N.L.R. 262.
Smith v. Poulter (1947) / All. E.R. 216.
Peachy Property Corporation v. Robinson (1966) 2 All. E.R. 981.
J4ai }ahu v. Lala Ram Narayana (1978) A.I.R. (S.C.) 22.
Park Gate Iron Co. v. Coates (1870) L.R'. 5, 634.
APPEAL from judgment of the Court 6f Appeal.
W.P. Gunatilake with Rohan Jayawardena and Miss Thalatha WickremasingheJoxdefendant-appellant
P.A.D. Samarasekera with Upali de Almeida for plaintiff-respondent.
Qur. adv. vult.
August 11, 1982.
WIMALARATNE, J.
The object of Rent Restriction legislation has mainly been tocontrol the amount of rent recoverable by a landlord froth his tenantand to place limitations on the jurisdiction of the Court to eject thetenant by specifying the grounds on which ejectment could be obtained.But ever since Rent Restriction legislation was introduced into thiscountry forty years ago, these restrictions have'not in any way fetteredthe right and the duty of the Court to give effect to lawful compromiseswillingly entered into in a pending action between a landlord andhis tenant:' That the provisions of -section 408 of the Civil ProcedureCode (Cap. TOI) relating to lawful compromises -still remain intactnotwithstanding these restrictions contained both in the Rent RestrictionOrdinance of 1942 and the Rent Restriction Act of 1948 has beenrecognised by our courts in several decided cases, principally inNugera-Vs. Richardson (1), and Dep Vs. Nagaratnam (2). In theformer case Gratiaen, J. considered if “monstrous to contendljhatthe defendant who, in a tenancy action, has entered into – anunobjectionable bargain to give up an advantage in consideration ofobtaining some other benefit should be relieved from his. bargainafter, .he has received in full measure the benefit accruing from thecompromise”; at page 118.
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['/>uh<wnr Km 'mudillh-.i {./. i
fill.*
The question.is whether this principle has to any extent beeneroded by the Rent Act, No.7 of 1972 or by Law No. 10 of 1077amending it; and also whether the principle is yet applicable wherethe tenant seeks to repudiate the settlement before he hits enjoyedany benefit accruing from the compromise.
In the case of premises 4he standard tent of which is' belowRs. 100/- (as in the present case) section 22(1) of the Rear 'Act >prescribes the grounds on which a landlord may .eject a tenant .Oneof the grounds is that rent has been in arrears for three months ormore after it» has become.due (section 22(1) (a)). ..Another is thatthe premises are reasonably, required for occupation as a residenceby the landlord or a member of his family (section 22(1 )(b».. Thislatter ground was available only if the premises-had been let afterthe date of operation of, the Act. The amending law of 1977 extendedits scope to residential premises let before the Act as well, (section22(1) -(b)). The premises in question had been let. to the tenantbefore the main Act came into .force, and the landlord therefore hadthe right to ask for the ejectment of ,the.-tenant on thCj. ground ofreasonable requirement too. But the amendment stipulated; itbsection22(1) (IA) that the landlord of such premises shall not be .e.ntitlcdto avail himself of this provision if he is the owner of muse, thanone residential premises and unless he has . caused notice of suchaction to be served on the Commissioner of National Housing.
– In instituting the present action the. landlord proved for the ejectmentof the tenant from the premises ami for the recovery of rent anddamages. He caused notice of the action to be served on. theCommissioner of National Housing as required by law.. The tenantdenied, that he was in arrears for more than three .months after itbecame due denied also that the premises were required Tor,. theoccupation of the landlord or his family, and. pleaded further., thatthe landlord was the owner of more than one house. At the trialheld on 16.1.80 the parties were represented by lawyers. A settlementwas recorded in &nhala in these terms:- “Both parties state. thatthey have arrived at a settlement of this case. The defendant,consentsto hand over possession of the premises to the plaintiff on or Ijefprc31.12.81.. The defendant will no,t be paying rent to the plaintiff duringthis period. The praintiff consents to this. The defendant undertakesnot to subiet the premises or tocause any damage to it." Judgmentwas entered in terms of this settlement, with a further clause Jhatif possession was not handed on the due date the plaintiff would be
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604
Sri l.anka Law Reports
(1982) 2 S.L.R.
entitled tp take, out writ of ejectment without notice to the defendantand recover arrears of rent in terms of the plaint. Both parties signedthe record consenting to these terms.
Before decree was entered (on 25.2.80) the defendant moved theCourt of Appeal to have the judgment revised on the ground thatthe District Court had no jurisdiction to enter judgment for ejectmentdispensing with the statutory requirement that once action is filed interms of the amending law the tenant could not be ejected untilalternative accommodation is provided by the Commissioner of NationalHousing.
The pleadings have been subject to careful analysis by the Courtof Appeal, which has found that the averment in the plaint (dated10.1.79) that all rents had been paid up to 30.9.78 does not necessarilylead to the inference that the rent was not in three months arrearswhen the tenancy was terminated, because “there had been a recurringbacklog of three months1‘arrears of rent at any given point of time”.Thfere'doeS' hot appear‘to be sufficient grounds, therefore, to disturbthe finding of the Court of Appeal that the present action is onefor ejectment on bbth grounds of reasonable requirement as well asarrears of rent. A lawful compromise entered into in an actioninstituted on the ground tha.t rent has been in arrears for the stipulatedperiod has always been recognised and given effect to notwithstandingthe restrictions contained in the Rent Act.
It has been submitted By learned Counsel for the appellant thatthe trial Judge has not considered the existence of any of the groundsunder section 22 which are prerequisites for the institution of anaction in Court. He has referred us to certain decisions of the Courtsin England Smith Vs. Poulter (1947) (3), and Peachy PropertyCorporation Vs. Robinson (4) in terms of which the Court has nppower to make ah order for possession of a dwelling house unlessthe Court considers it reasonable to do so, and that it is the dutyof the Court to see whether the conditions required by the RentAct are satisfied, even though'not pleaded or. raised by the tenant.There is a requirement under section 3 of the English Rent and,Mortgage Interest Restrictions (Amendment) Act, 1933, that when,a house is one to which the Rent Restriction Acts apply, then thecourt has no power to make an order or judgment for possession“unless the court considers it reasonable” to do so. Such cases areeasily distinguishable because there is no provision similar to theabove section 3 in our Rent Act.
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Ai>i>uhamy r. Kiisumulailui iWinuiUnutiu'. J )■
605
More relevant are Counsel’s submissions based on the provisionsof the Civil Procedure Code of India relating to compromise of suits(o 23 R3). In Nai Bahu Vs. Lala Ram Narayana (5) the SupremeCourt summed up the position thus:- “It is well settled that wherethe Rent Control and Restrictions Acts are in operation, a landlordcannot obtain eviction of the tenant unless he satisfies the requirementof the provisions of those Acts. It is also well settled that if theCourt does not find the permissible ground for eviction disclosed inthe pleadings and other materials on the record no consent orcompromise will give jurisdiction to the Court to give a valid decreefor eviction’’. This appears. • with respect, to be an unexceptionalexposition of the law applicable to compromises entered into inactions to which the Rent Act applies. In the present case thepermissible grounds for eviction were disclosed in the pleadings.Hence a compromise entitling the Court to make an order forpossession without inquiry was lawful and within the Court’s jurisdiction.
It is significant that the amending law docs not impose anyprohibition against the entering of a simple decree for ejectmenteven in an action instituted on the ground of reasonable requirement,without containing a clause that the decree is being entered on thatground. The prohibition contained in section 22(1) (1C) is againstthe issue of a writ of ejectment until the Commissioner of NationalHousing has notified the Court that he is able to provide alternativeaccommodation for the tenant only in cases where the decree hasbeen entered on the ground that such premises are reasonably requiredas a residence for the occupation of the landlord or for a memberof his family. The reason for this is manifest in that the legislaturehad no intention for prohibiting lawful compromises between landlordand tenant even where the pending, action is one instituted underthe amending law.
It seems clear that the Rent (Amendment) Law.. No. 10 of 1977. has been enacted for the benefit of the owners of single houses, thestandard rent of w':ich is below Rs.100/- and which had been fet tothe tenant prior to the date of commencement of the main Act. Ifsuch an owner is able to satisfy the Court that such premises arereasonably required as a residence for his occupation he is entitledto a decree for ejectment in his favour. If the decree is entered onthe ground of reasonable requirement, then no writ of execution ofsuch decree shall be issued by Court until after the Commissionerof National Housing has notified Court that he is able tc otc-sa
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Sri Lanka Law Reports
(m2) 2 S.L.R
alternate accommodation for such tenant. This latter requirement ishowever, a concession included for the benefit of the tenant, whoin spite of the reasonable requirement of the landlord, is not to beejected without being provided a house for his occupation by theState. It is, however, open to the tenant to waive this requirement .and to agree to vacate even before the Commissioner of NationalHousing is able to provide alternative accommodation, for “quilibetpotest renuntiare juri pro se introducto” – the conditions prescribedby a statute are not considered as being indispensable if the thingwhith is to be done is for the benefit of a particular person or classof persons. Craies on Statute Law (6th Ed.)' 269. Expanding on thisprinciple Montague Smith J. observed, in Park Gate Iron Co. Vs,Coates (6), that if the objection goes to the jurisdiction of the Court,the requirement cannot'be waived; but if it be a condition insertedentirely for the respondents'security (such as proper notice of appealand security) it may be waived. The'object of the requirementcontained in section 22(1 C) of the Rent (Amendment) Law, No.7of 1977, that no writ in execution of decree entered for the ejectmentof the tenant of residential premises, the standard rent of which isbelow Rs. 100/-, on the ground that such premises are reasonablyrequired for occupation by the landlord or by a member of hisfamily, shall be issued until after the Commissioner of NationalHousing has notified the Court-that he is able to'provide alternativeaccommodation for such tenant seems to be a requirement insertedsolely for the benefit and .security of a class of tenants. It is thereforeone which may be' waived by the teitant; for it may sometimes bemore advantageous to a tenant to compromise with the landlord onfavourable terms rather than to avail himself of alternate accommodationmade available by the Commissioner. ■ If the settlement" betweenlandlord and tenant in Nugera’s case (above)'1 Wa'SJr"eminentlysatisfactory", the tenant in the present case seems' to have,Tobtainedterms far more favourable, for he was permitted^ to,: remain inoccupation for two years without payment of any rent.
The circumstance that, a: tenant who fS ■tf'p^rfy to a lawful compromisewhich permits him to remain' “fri Occupation for a stipulated periodseeks to have the settlement vacated before he has enjoyed the fruitsof the compromise would not,-in my view, effect the above principle.If. however, the settlement’ had been induced by fraud, mistake,duress or other vitiating factor, then there is no impediment in theway of his having it set aside. But there is no proof of them in thepresent case.
CA
Wickrema'U’if’he r Ceylon I-leenicin llotinl
ft()7
The appeal is accordingly dismissed with costs.WAN ASUNDER A, J. – I agree.
SOZA, J. — I agree.
Appeal dismissed.