019-NLR-NLR-V-59-B.-WETTASINGHE-Appellant-and-N.-D.-J.-SAMARANAYAKE-Respondent.pdf
70 ‘- H. N. G. FERNANDO,- J.—-Wettasinghe v. Samaranayahe
1957.* Present: H. N. G. Fernando, J.'. . 'WETTASIN GHE, Appellant, and N. D. J. SAMAR ANAYAKE,
.-:• Respondent '-•
. S. G. 279—0: R. Colombo, 61,434.; .
Rent Restriction Act, No. 29 of 1948—Section 15—Recovery of payments in excess ofauthorised rent. '*.
■ Amounts paid in excess of the authorised rent can be recovered by the‘ tenant under section 15 of the Rent Restriction Act even though the payments. were made.on tho basis of an agreed rent.'•
j^^-PPEAIi from a judgment of the Court of Requests, Colombo.
V. Kf Palasuntheram, for the defendant-appellant.
M. 31. Kurnarahulasingham, for the plaintiff-respondent.
March 28, 1957. H. 3ST. G. Fernando, J.—■
This tenant has conducted his own defence and in consequence certainaspects of his defence have not been appreciated by the learned Com-missioner. In the answer filed by the defendant he.had alleged thatthe agreed rental of the premises was Rs. 25 a month and that the plaintiffhad charged excessive rent. The defendant had furthermore attempteda calculation of the excess and prayed for a sum in reconvention. Onthese averments in the answer the issues as to what was the authorisedrent of the premises and whether rent had been paid in excess clearlyarose, and it was the duty of the judge to frame them.
Although those issues were not framed the learned Commissionerdid realise himself that one of the two defences taken by the defendantwas that rent had been charged at the rate of Rs. 25 per month andnot at the rate of Rs. 12 as alleged in the plaint. In dealing with thisdefence the Commissioner states, “ there is no definite evidence whatthe authorised rent is ” and then makes certain observations whichseem to indicate that to his mind if payments are made on the basisof an agreed rent, no question of excess can arise. If that was thelearned Commissioner’s view, I must point out that it is wrong becausethe Act clearly provides that amounts paid in excess of the authorisedrent may be recovered by the tenant or deducted from rent payable.
, There is a further'serious misdirection in that the judge thoughtthat the absence of evidence at the trial as to the amount of authorisedrent was vital. The plaintiff, however, had stated in his plaint that.the agreed rent was Rs. 12 and in the absence of anything to the contraryin the evidence, that averment constitutes an admission that the authorisedrent is Rs. 12.
£,. YV. do Srr.VA, A.J.—Pinencihamy v. Wilson7]
Because of this misdirection the learned Commissioner does not appearto have realised that it is essential to determine -whether the defendanthad in fact paid Bs. 25 per month fdr a long period and whether havingregard to the set off permissible by section 15 of the Act he was not inarrears for the relevant period…
I would set aside the judgment and decree and direct that a newtrial be held. At this trial, however, the only questions which may beagitated are those I have dealt with in this judgment, namely, whetherthe tenant had paid Bs. 25 a month as rent for any period and if so,whether the set off of the excess rent has the consequence that he wasnot in arrears. The issue whether any further siim paid as excess rentremains due for recovery by the defendant maj' also be agitated. Inthe circumstances I would make no order as to the costs of this appeal.
Judgment set aside.