011-NLR-NLR-V-80-B.-HAPWOOD-Petitioner-and-A.-DIAS-Respondent.pdf
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WANASUNDERA, J. – Hapwood v. Dias
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Present: Wijesundera, J. and Wanasundera, J.
HAPWOOD, Petitioner and A. DIAS, Respondent.
S.C. 401/76 (F) – M. C. COLOMBO 127/RE
Consent decree – Wrongful refusal to accept payment – No liability to tender subsequentpayments – Court order not complied with – Grant of relief by Court – Abuse of process ofCourt.
When a plaintiff landlord wrongfully refuses to accept payment tendered by adefendant-tenant in terms of consent decree, there is no liability on the defendant-tenant totender subsequent payments and the plaintiff-landlord cannot take advantage of thesubsequent defaults and apply for writ.
Where a party fails to comply with a Court Order made of consent or otherwise, it isalways open to Court to take action and grant relief to prevent process of Court beingabused.
Application in Revision.
K. M. Rajaratna for defendant-petitioner.
R. Rasaratnam, for plaintiff-respondent.
Cur. adv. vult.
August 24, 1976, Wanasundera, J.-
The defendant-petitioner was the tenant of premises No. 11, Prince’sGate, Colombo 12 and was sued by her landlord, the plaintiff-respondent, forejectment on the ground that she was in arrears of rent for over a period ofthree months. The rent of the premises was Rs. 18/88 and it was alleged thatshe was in arrears in a sum amounting to Rs. 902/88.
At the trial the defendant-petitioner admitted that she was in arrears ofrent and the parties consented to judgment on the following terms:-
“Of1 consent, judgment for plaintiff in a sum of Rs. 816/10 being rentand damages up to the end of June 1975 together with further damagesat Rs. 18/81 from the 1st of July 1975 and for ejectment, with costsfixed at Rs. 52/50.
If the defendant pays every month on or before the last date of eachmonth from 31st July 1975 a sum of Rs. 56/43 out of the arrears andcosts, together with the current damages at 18/81 without defaults, writsnot to issue till the 31st of December 1976. In default of any payment,
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both writs to issue without notice. Even if writs are to issue after oneyear, writs to issue without notice. All payments to be made by moneyorders to Mr. K. A. Rasanathan, No. 200, Hulfsdorp, Colombo 12,Attorney-at-Law for the plaintiff. The defendant further states that shehas no sub-tenants under her and undertakes not to sublet the premises.
If the defendant makes the payments aforesaid without any fault, thedefendant will be entitled to continue in occupation of the premises on afresh contract of tenancy as from the 1st of January 1977. If the ratesand taxes are not paid by the plaintiff, the defendant will be entitled tomake such payment and set them off against the payment due. Thedefendant will be entitled to withdraw the money order No. 111453 paidto the Authorised Officer Colombo Municipal Council. All otherpayments made to the Authorised Officer, Colombo Municipal Council,to be recovered by the plaintiff.”
Thereafter, the defendant-petitioner made payments regularly in terms ofthe consent order until November 1975. The defendant-petitioner statesthat she sent, by a Money Order dated 28th November 1975, the sum ofRs. 75/24, being the amount payable for November 1975, to the plaintiff-respondent’s attorney Mr. Rasaratnam. Mr. Rasaratnam had refused to acceptit and had returned the Money Order stating that the payment was out oftime.
Consequent to this, the plaintiff-respondent applied to court for a writ ofpossession, alleging that the defendant-petitioner was in default of theconsent order. The defendant-petitioner filed objection to the application forwrit and alleged that she had been regularly paying the amounts decreed inthe consent order. After inquiry, the learned trial Judge held that the paymentin issue had been made in time, and dismissed the plaintiff-respondent’sapplication for writ.
While that inquiry was pending, the defendant-petitioner had not made themonthly payments contemplated by the consent order for the succeedingmonths. The last payment was the one for November 1975, which the courtheld by its order 16th March 1976 to have been paid within the prescribedtime. The defendant-petitioner had taken the position that, as the plaintiff-respondent had wrongly refused to accept a payment, she was under noobligation to tender further payments, and she was therefore withholdingpayments pending the inquiry into that matter by court.
The inquiry concluded on the 16th March 1976 in the defendant-petitioner’s favour but four days later, on the 20th March 1976, the plaintiff-
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WANASUNDERA, J. – Hapwood v. Dias
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respondent applied once again for writ of possession for the defaults inrespect of the months subsequent to November 1975. Although thedefendant-petitioner objected to the issue of the writ, the court, after inquiry,granted the plaintiff-respondent’s application. The defendant-petitioner hasnow been ejected from the premises, but she seeks relief from this court tohave the Magistrate’s order revised.
Mr. Rajaratna for the petitioner has urged earnestly that, having regard tothe circumstances of this case, the petitioner should be given some relief.The question is whether the grounds urged by him are sufficient for us tointervene on her behalf.
The defaults relied upon by the plaintiff-respondent are the defaults in themonths pending the inquiry into his first application for writ. The petitioner’sposition has always been that, since a valid tender of payment had beenrejected by the landlord without justification, she was under no obligation tokeep on tendering payment. There was not only the wrongful refusal toaccept payment, but also the fact that the plaintiff-respondent rushed intocourt and applied for a writ to have the petitioner ejected from the premises.The petitioner was therefore entitled to assume that the conduct of theplaintiff-respondent amounted to an unequivocal intimation that any paymentof tender for subsequent months would not be accepted. There is authorityfor the proposition that, when the landlord has made it clear that he will notaccept further payment, there is no obligation on the tenant to tenderpayments as and when they fall due. It is a well-known principle that a partyis not required to make a formal tender when it appears that the tender wouldhave been mere form and that the party to whom it was made would haverefused to accept the money. (Vide Annamalai Chettiar v. Greasy, 1 VadivelChetty v. Abdu, 2 Sideek v. Sainambu Natchiya, 3 and Wijesekera & Co., Ltd.v. The Principal Collector of Customs* this is enough to dispose of thematter. But, before concluding I would like to advert to another matter.
What is in issue here is also the effect of a court order. The parties inrespect of whom such an order is made, whether of consent or otherwise, arebound by it, and are expected to comply with the provisions. The order castan obligation equally on the plaintiff-respondent to accept payment when itwas offered in time, as much as it was the duty of the petitioner to makepayment within the stipulated period. The failure to make a payment in duetime is visited with the sanction which has been expressly set out that theplaintiff-respondent could ask and obtain a writ of possession for theejectment of the petitioner. When there is a default on the part of the
1 (1955) 56 N.L.R. 477.1 (1954) 55 N.L.R. 367.
: (1954) 55 N.L.R. 67.' (1955) 53 N.L.R. 329.
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plaintiff-respondent, I think it was always open to the court to take actionand grant relief to ensure the just determination of the matter and to preventthe process of court being abused.
Acting in revision, I would substitute the following order and direct thatthe petitioner be restored to possession on the fulfilment of the followingcondition, namely, that the petitioner should be called upon to pay, withinone week of her being so noticed by court, all amounts legally due to theplaintiff-respondent up to that date in terms of the consent order. If suchpayment is made and she is restored to possession, the terms of the consentorder would continue to govern the relationship of the parties until its effectis exhausted.
As the petitioner has so far failed to bring the money into court, she wouldnot be entitled to the costs of this application.
Wuesundera, J. -1 agree.
Decree varied.