127-NLR-NLR-V-41-ATTORNEY—GENERAL-v.-EDIRIWICKRAMASURIYA.pdf
499
WIJEYEWARDENE J.—Attorney-General v. Ediriwickramasuriya.
1940Present: Wijeyewardene J.
ATTORNEY-GENERAL v. EDIRIWICKRAMASURIYA.
220—C. R. Tangalla, 15,915.
Lease—Non-payment of rent—Action to enforce forfeiture—Acceptance of rent
—No waiver of claim for forfeiture.
Where an action is brought to enforce a forfeiture of a lease for failureto pay rent, acceptance of rent after the institution of the action does notamount to a waiver of the right to claim a forfeiture.
Where a defendant fails to ask for relief from forfeiture, the Court isnot bound to grant relief.
^ PPEAL from a judgment of the Commissioner of Requests. Tangalla.
W. Fernando, C.C., for appellant.
No appearance for respondents.
Cur. adv. vult.
March 20, 1940. Wijeyewardene J.—
The defendant-respondent took on lease from the Crown a land calledMahabalanekalle of the extent of 10 acres 2 roods and 14 perches by-indenture P 1 for a period of five years from January 19, 1932. Inaccordance with the terms of P 1, the lease was subsequently extendedfor a further period of five years. The rent reserved under the lease isRs. 38.12 a year payable on the first day of January in every year, thefirst proportionate payment being made payable before the execution ofPI. It was further stipulated in P 1: —
“ That if any rentshall remain unpaid and in arrears
for the space of three months after the time hereby appointed forpayment thereof, whether the same shall have been lawfully demanded
or notthis demise and privileges hereby reserved, together
with their presents shall forthwith cease and determine and the lessor
may thereupon enter into and upon the said land ….
and the same have, repossess, and enjoy as in his former estate. ”
The defendant failed to pay the rent for 1938 and the Attorney-Generalacting on behalf of the Crown instituted this action in December, 1938,•for the cancellation of the lease and for the recovery of the rent for 1938'and further damages until the Crown is restored to the possession of theland. Summons was served on the defendant on June 24, 1939, and aProctor filed, his proxy on August 3, 1939, and took time to file answer.The Proctor however did not file answer on the due date but stated that hehad no instructions. The case was thereupon fixed for ex -parte trial onSeptember 7, 1939, when an Assistant Land Clerk of the HambantotaKachcheri gave evidence. In the course of his evidence he stated thatthe defendant paid rent for 1938 on April 11, 1939.
500 WIJEYEWARDENE J.—Attorney-General v. Ediriwickramasuriya.
Relying on the decision of Fonseka v. Naiyan AH', the Commissionerof Requests dismissed the plaintiff’s action as he held that the receipt ofrent for 1938 by the plaintiff’s agent before the service .of summons onthe defendant destroyed the foundation of the plaintiff’s claim for cancel-lation of the lease which was based on the non-payment of the rent for1938 by the defendant.
The facts of Fonseka v. Naiyan Ali {supra) are distinguishable fromthose of the present action. The plaintiff in that case gave notice to thedefendant to vacate the premises occupied by him on or before December31, 1919, and on his failure to do so sued the defendant asking for rentfor December, 1919, ejectment and damages from January 1, 1920.Subsequent to the filing of the action but before the service of the summonson the defendant the plaintiff received payment for January, 1920, andissued a rent receipt for that month. The Supreme Court held that theusual result of the acceptance of rent for a period subsequent to the period ofnotice without any reservation was “ a waiver of the notice ” and thecontinuance of the tenancy.
In the present case we have to consider the effect of a payment of renton an action brought to enforce a forfeiture of lease on the breach of acovenant and not the effect of a payment of rent on a tenancy determinedby a notice to quit. In Evans v. Enever", Lord Coleridge said : —
“ There is a series of cases which establish that if an action is brought
for recovery of possession for breaches of covenants in the lease that is
an irrevocable election to determine the lease and that no subsequentacts of the plaintiff can be relied on as qualifying that position. ”
Moreover in this action if the Court gives judgment for the plaintiff thelease will stand cancelled as from December 13, 1938, when the action wasinstituted. The rent for 1938 was payable in one lump stun at the begin-ning of 1938. The acceptance of that rent in April, 1939, is in fact anacceptance of rent that fell due before the date when the lease accordingto the decree of Court will stand cancelled.
I may add that the decision in Fonseka v. Naiyan Ali (supra) appearsto have followed the principles of law laid down in some of the earlierEnglish cases and adopted in Hartell v. Blackler *. A contrary view washowever taken in Davies v. Bristow and Penhros College, Ltd. v. Butler.*In view of the later decision it may become necessary to reconsider thedecision in Fonseka v. Naiyan Ali if the question arises again for deter-mination.
The plaintiff in the present action was entitled at law to sue thedefendant asking for a cancellation of the lease, in view of the expressstipulation in P 1. The defendant was no doubt entitled to ask forequitable relief but he failed to do so and in such circumstances the Courtis riot obliged to give equitable relief—vide Banda v. Fernando *.
1 (1920) 22 N. L. R. 417.» (1920) 2 K. B. 161.
x (1920) 2 K. B. 315.* (1920) 3 K. B. 428.
-6 (1919) 1 Cey. L. Bee. p. 9.
WIJEYEWARDENE J.—Kulatunga v. Pv-lle.
501
I set aside the judgment of the Commissioner and order judgment tobe entered in favour of the plaintiff in terms of clauses 1 and 2 of theprayer in the petitioner’s appeal.
Appeal allowed.