005-SLLR-SLLR-1981-2-APPUHAMY-v.-SENEVIRATNE.pdf
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Appuhamy v. Seneviratne
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APPUHAMY
v.SENEVIRATNE
COURT OF APPEAL.
RATWATTE, P. AND ATUKORAI F., J.
C.A. 98/80-D.C. AVISSAWELLA 15294/RE.DECEMBER 16,1980.
Landlord and tenant—Action for ejectment on ground of arrears of rent and reasonablerequirement—Rent (AmendmentJ Law, No. 10 of 1977—Consent decree—Applicationin revision—Whether writ can issue till alternate accommodation provided byCommissioner of National Housing—Arrears— Claim by tenant to set off sums expendedon repairs -Failure to obtain prior authorisation of Rent Board—Validity ofdecree—Issue of writ of ejectment— Rent Act, No. 7 ot 1972, section 13 (3).
The respondent to this application sued the petitioner, his tenant, for ejectment on theground of arrears ot rent ana also under the provisions of Rent (Amendment) Law, No.10 of 1977, on the ground that the premises wer required for her own occupation. Atthe date of institution of the action, on the averments in the plaint, the petitioner wasthree months in arrears of rent. The petitioner in his answer pleaded, inter alia, thathe was entitled to set off certain monies expended by him on repairs against the rentspayable; and he also asked that, in the event of decree being entered for ejectment onthe ground of reasonable requirement the Court order execution 10 Lie stayed until theCommissioner of National Housing provided him with alternate accommodation in termsof Law No. 10 of 1977. At the trial the case was settled and judgment was tillered, ofconsent, against the petitioner in terms ot which he was bound to hand over the premiseson or before 31st December, 1981.
The petitioner thereafter filed this application to revise the judgment entered in thecase and to have the case sent back for re-trial or in the alternative to have it amended toread that no writ of execution shall issue until after the Commissioner of NationalHousing has notified to Court that he is able to provide alternate accommodation. Itwas contended on behalf of the petitioner that the action must be regarded as one wherethe ejectment of the petitioner was sought solely on the ground of reasonablerequirement and nor one for the recovery of possession on the ground of arrears ofrent. Accordingly it was submitted there being no material before court that the premiseswere so required for occupation by the respondent the Court had no jurisdiction to entera decree for ejectment even of consent; and that, in any event, such a aeciee could notbe entered depriving the petitioner of the protection afforded by Law No. 10 of 1977,whereby he could not be evicted until alternate accommodation was found by theCommissioner of National Housing.
Held
It was clear on the pleadings that the respondent had sought to eject the petitioner onthe ground of arrears of rent as well as on the ground of reasonable requirement. The
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petitioner not having obtained the prior authorisation of the Rent Board had no right toa set off in respect of the sums expended by him on repairs and accordingly was in threemonths' arrears of rent and continued to be so until the institution of the action. Theapplication must therefore fail.
Per Atukorale, J.
"it appears to me that the ground on which an action is filed need not necessarilybn the one set out ir, the notice terminating the tenancy."
Cases referred to
11) Abdul Rahuman v. Marimuttu, (1951) 52 N.L.R. 503.
Lorcnsi v. Abdul Coder. (1962) 66 N.L.R. 523; 63 C.L.W. III.
Ratnam v. Ohccn. (1967) 70 N.L.R. 21.
Appuhamy v. Perera Hamine and another, (1962) 63 C.L.W. 84.
Mohideen v. Mohideen, (1976) 78 N.L.R. 108.
APPLICATION in revision from the District Court, Avissawella.
W. P. Gunatillake, with A. B. Tennekoon, for the petitioner.
P. A. D. Samorasckcro, with Upoli de Almeida, for the respondent.
Cur. lu'j. vult.
February IS, 1931.
ATUKORALE,
The present petitioner was the defendant in case No. 15294/RE ofthe District Court of Avissawella which was filed against him bythe present respondent seeking to have him ejected from certainpremises the tenancy of which I tad coiTimenced prior to thecoming into operation of the Rent Act, No. 7 of 1372. Admittedlythe premises were governed by the provisions of the Rent Act asamended by the Rent (Amendment) Law, No. 10 of 1977. Thestandard rent of the premises did not exceed Rs. 100 per month,the actual rent being Rs. 60 per month payable, according to theplaint, on or before the end of each month. It is also not is disputethat a notice dated 28.5.1978 was sent to the petitioner by therespondent's attorney-at-law requesting the petitioner to quit andvacate the premises on or before 1.12.1978. The plaint which wasfiled on 10.1.1979 stated in paragraph 5 that all rents up to30.9. 1978 had been paid but not the rents and damages that felldue thereafter. Paragraph 6 of the plaint set out the various factswhich had to be proved by the respondent to enable him to obtaina decree for ejectment against the petitioner on the ground thatthe premises were reasonably required for occupation as a residencetor herself or a member of her family. In the prayer to the plaintsite asked for an order of ejectment of the petitioner, for arrears
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of rent and for damages from 1.12.1978 until restoration, ofpossession. It will thus be seen that on the averments of the plaintthe petitioner was, on the date of institution of the action, over 3months in arrears of rent after it became due.
In his answer the petitioner stated that the lavatory appurtenantto the premises fell into a state of disrepair but that the respondentin spite of being requested to do so failed to repair the same. Hefurther stated that he spent a sum of Rs. 166.35 cts. for the repairwhich was effected in about 1976 and that after setting off thissum from the rents payable by him he remitted a sum of Rs. 14 tothe respondent by a money order which the respondent refused toaccept and returned to him. Apparently this sum of Rs. 14 was thebalance due, after deducting the cost of the repair, out of 3months rent amounting to Rs. 180. In paragraph 13 of the answerthe petitioner stated that although he has remitted rents to therespondent every month without fail, the respondent has informedhim that 3 months' rent was in arrears. He further stated that the
months' rent referred to by the respondent was the amount thatshould be set off against the cost of the repair and, if done so,there was no arrears of rent due from him. He also stated that, inany event, without prejudice to his rights, a sum of Rs. 240 being
months rent was being deposited by him in court together withthe filing of his answer. He denied that the premises were reasonablyrequired for occupation as a residence by the respondent or anymember of her family. He aveneu that the premises in suit 'werenot the only residential premises owned by the respondent. Healso asked that in the event of the court entering a decree for hisejectment on the ground of reasonable requirement the court doorder the execution of the decree be stayed until the Commissionerof National Housing provides him with alternate accommodationin terms of the Rent (Amendment) Law, No. 10 of 1977.
In his replication the respondent, whilst denying the lavatoryrequired repairs, maintained that the petitioner had no right toincur any sum by way of expenditure on that account. He alsostated that the sum of Rs. 240 had been deposited after thesummons returnable date, i.e., the date fixed in the summons asthe date on which the petitioner had to appear in court and thatas such the petitioner was in arrears of rent for a period of 3months or more after it became due and that accordingly he wasentitled to an order of ejectment of the petitioner and for therecovery of arrears of rent.
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The case was taken up for hearing on 16.1.1980 on which dateboth parties were represented by their respective lawyers. Bothparties then informed court that the case had been settled. Thepetitioner agreed to hand over possession of the premises to therespondent on 31.12.1981. He stated that he would occupy thepremises until then without payment of rent. The respondentagreed to this. The petitioner also agreed not to sublet or causeany damage to the premises. On the terms of settlement beingrecorded by court, judgment was entered ordering the petitionerto hand over the premises to the respondent on or before
as agreed. If he failed to do so, the respondent wasdeclared entitled to take out writ of ejectment against the petitionerwithout notice. It was further ordered that if the petitioner failedto hand over possession as agreed, the respondent will be entitledto recover all sums as prayed for in the plaint. Decree was orderedto be entered accordingly. Both parties signed the record afterthe terms of settlement were read out and explained to them.
About two weeks later, on 29.1.1980, the petitioner filed thethe present application in this court to revise the said judgmentand to have it set aside and the case sent back for a retrial or, inthe alternative, to have it amended to read that no writ inexecution of the decree shall issue until after the Commissioner ofNational Housing has notified to court that he is able to providealternate accommodation for him, in terms of Section 22 (1C) of theRent Act, No. 7 of 1972, as amended by the Rent {Amendment)Law, No. 10 of 1977. Learned Counsel for the petitioner appearingbefore us contended that this action was and must be regarded asone where the respondent asked for ejectment of the petitionersolely and purely on the ground that the premises were reasonablyrequired for occupation as a residence of the respondent or amember of her family, and that it was not and cannot be regardedas one for the recovery of possession on the ground of arrears ofrent. He therefore maintained that, firstly, the court had nojurisdiction to enter a decree for ejectment even of consent, unlessthere was material to satisfy Court that the premises were, in theopinion of the Court, reasonably required for occupation of therespondent or a member of her family; and, secondly, that theCourt had no jurisdiction to enter decree in the manner in which itwas entered in this case as it has taken away the statutoryprotection enjoyed by a tenant against eviction until such time asthe Commissioner of National Housing notifies Court of his abilityto provide alternate accommodation in terms of the above law.
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In support of his submission he cited the following authorities:
, (2). (3), and (4).
Learned Counsel for the respondent, on the other hand,submitted to us that the action was one in which ejectment of thepetitioner was sought for on both grounds, namely, on the groundthat the premises were reasonably required for the occupation ofthe respondent as well as on the ground of arrears of rent. Hemaintained that the settlement entered into by the parties was alawful compromise of the action under section 408 of the CivilProcedure Code. He also urged that even if the action is consideredto be one based solely on the ground of reasonable requirement,the petitioner must, in the circumstances of this case, be deemed tohave waived the statutory bar against ejectment until the provisionof alternate accommodation by the Commissioner of NationalHousing.
A consideration of the facts set out in the pleadings filed in thelower Court irresistibly leads one to the conclusion that therespondent sought to eject the petitioner both on the ground thatthe premises were reasonably required for her occupation as wellas ori the ground that the petitioner had fallen into arrears of rent.As stated above the plaint was filed on 10.1.1979. Paragraph 5 ofit states that no rent was paid after 30.9.1978. Hence in terms ofsection 22 (1) (a) of the Rent Act the petitioner, at the time ofthe institution of the action, had fallen into arrears for 3 monthsor more after the rent became due. This position is further clarifiedin paragraphs 3 and 4 of the respondent's replication, wherein shespecifically pleads that she is entitled to eject the petitioner onthis ground. A perusal of the answer reveals that whilst thepetitioner was claiming to set off the cost of the repair, therespondent was consistently refusing to acknowledge any suchright in the petitioner. There was thus no doubt that if thepetitioner did have a right to a set-off, then he was not in arrearsof rent. It was also equally clear that if the petitioner did not havesuch a right, then he was in fact in arrears of rent for a period of3 months. This situation emerges from the state of the pleadingsin the lower Court. At the hearing before us it was not disputedthat the petitioner had not obtained the prior authorisation of theRent Board to carry out the repair. Hence the true legal position .would be that the petitioner had no right to a set-off as claimed byhim—vide section 13 (3) of the Rent Act. It would thereforeappear that the petitioner in 1976 commenced to fall into 3
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months' arrears of rent and that subsequently he continued to bein such arrears of 3 months rent at any given point of time untilthe filing of the plaint on 10.1.1979 when he was in arrears of rentfor the months of October, November and December, 1978. Thuson the basis that the rent for a particular month was payable on orbefore the end of that month as pleaded in the plaint, thepetitioner was, at the time of the institution of the action, inarrears for 3 months or more after the rent became due.
The sole ground on which learned Counsel for the petitionerrelied for his contention that the action was not one for ejectmenton the ground of arrears of rent was the fact that whilst the noticeto quit was dated 28.5.1978 the plaint averred that all rents up to
had been paid. He thus maintained that on the face ofthe plaint the rent was not in arrears at the time the notice to quitwas sent. His contention was that according to section 22 (3) ofthe Rent Act a notice terminating the tenancy to be valid must begiven only after the tenant has in fact fallen into arrears for therequisite period, namely, for a period of 3 months or more or -for amonth as the case may be. In support of this legal contention hecited the case of Mohideen v. Mohideen (5). A perusal of this case,however, shows that this point urged by learned Counsel for thepetitioner before us did not arise for adjudication in that casealthough Tennekoon, C. J. seemed to think that that was thecorrect position under the Rent Act, No. 7 of 1972. What wasdecided in that case was that under section 12 (A) (1) (a) of LiteRent Restriction Act, No. 29 of 1948, as amended by Act No. 12of 1966, there was no requirement that at the time the notice toquit is given to a tenant in occupation of premises the standardrent of which does not exceed Rs. 100 a month the tenant shouldhave been 3 months or more in arrears of rent after it has becomedue. The corresponding position under Section 22 (3) of the RentAct as amended by Law No. 10 of 1977 did not arise fordetermination in that case.
In the instant case the notice to quit which was sent to thepetitioner and which under normal circumstances should havebeen in his custody was not produced on the date of hearing. Noris there any material before us to indicate whether it containedany reference to the rents being in arrears or not at the time it wassent, although it appears to me that the ground on which an actionis filed need not necessarily be the one set out in the noticeterminating the tenancy. But considering the manner in which the
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petitioner fell into arrears of rent in this case entailing, as it were,a recurring back-log of 3 months' rent in arrears at any given pointof time, it seems to me fairly certain that the petitioner had infact fallen into 3 months' arrears at the time the notice was sent.No doubt the plaint does state that all rents up to 30.9.1978have been paid by the petitioner. But in my view it cannot, inthe context of the pleadings and facts in this case, be inferredtherefrom that there was no arrears due at the time thenotice was despatched. To place such a construction would ineffect be contrary to the position taken up by the petitionerhimself in his own answer. To my mind what the plaint states issimply this and no more namely, that as at the time of filing of theplaint rents up to 30.9.1978 had been paid by the petitioner.From this I cannot reasonably conclude that there were no arrearsof rent due at the time the notice to quit was sent. For the abovereasons I am of the opinion that the submissions of learnedCounsel for the petitioner cannot succeed. The application istherefore dismissed with costs fixed at Rs. 210.
RATWATTE. P.-l agree.
Application dismissed.