014-SLLR-SLLR-1989-V-1-BASNAYAKE-v.-EDIRISINGHE.pdf
CAM. S. Hebtulabhoy & Company Ltd. v. Stassen Exports Ltd. 8
Another (Palakidnar, J.).195
BASNAVAKE
V.
EDIRISINGHE
SUPREME COURTRANASjNGHE. C.J..
BANDARANAVAKE. j. ANDAMERASINGHE. J.
S: C. NO: 78/86C A. NO: 209/77' V!
D. C. COLOMBO NO: 2201 /R. E.
JANUARY 9. 1989. .
Landlord and Tenant.— Arrears of rent'— Payment of arrears prior to appearancein Court on date mentioned in summons — Failure to pay rent for the 3 .monthperiod of notice — Rent Act s. 22 (2). (3){c).. : '’ '■ ■■
The words "all arrears of rent" appearing in clause-(c) of sub-section (3) ofSection 22 of the Rent Act No: 7 of 1972 mean only such rent as has beenspecified in.the notice of termination df the tenancyas;.being the arrears'andnothing more:'nothing less. -• –
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Cases referred to:
George v. Richard 50 NLR 128.
Fernando v. Samaraweera 52 NLR 278.
Seeyambalingam Chettiar v. Pitchchi Muttu Chettiar 53 NLR 382.
Dias v. Gomes 55 NLR'337 (D.B.).
Vincent v. Sumanasena 55 NLR 478.
■ Samaraweera v. Ranasihghe 59 NLR 395.
Bardeen v.-W. A. A. de Silva 66 NLR 547.
Ramzam' v: (Mrs) Sardar 73 NLR 380.
Ansar v. Hussain Col. App. Repons (1986) Vol. 1 p. 365..
APPEAL from judgment of the Court of Appeal.
J. G. N. de J. Seneviratne with Miss Damayanthi Silva for Appellant.
N: R. M. Daluwatte. P.C.. with Manohara de Silva for Respondent.
Cur. adv. vult.
January 30, 1 989.
RANASINGHE C. J.
The deceased-plaintiff Instituted these procedings, on' 30.1.1 973, against the Respondent to have the Respondentejected from premises No.' 1784/4, Cotta Road, Rajagiriya,
■ which had been rented out to him. on the ground,that the'Respondent was in arrears of rent for three months aftersuch rent had become due.
^ Prior to the institution of .these proceedings, the deceased-. plaintiff, had, on 27.3.72, sent to ,the- Respondent a noticeterminating the tenancy as fromj30th June 1972: After the^institution of the plaint, summons were issued returnable onJ'the',|5th. Apri11 1 973/ on which date it was directed to be■'■*'‘re.is§0ed''f6r;tb?-;2^h June 1.973. The Respondent appearedbefore the District Court in answer to the said suhnmons ,phthe 28th June 1 973. ’
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Before the Court of Appeal., both parties to these proceedingsagreed that, prior to the date on which the Respondent appeared’in the District.Court uponsummons. the Respondent1.had paid allthe arrears of'rent up to the 27.3.72, which was the date onwhich the Respondent, was given :notice of’termination of- thecontract of tenancy. It was further agreed that no rent had,however, been paid by the Respondent in respect of the period'ofthree months-referred. to in the notice of termination, namely, the27th March 1 97.2 to the 30th June 1972.*’…
Upon these facts and circumstances the question that arisesfor decision by this Court is: whether the non-payment of therent for the period from 127.3.1972 to 30th June 1.972. by theRespondent, before he appeared in, Court in. answer to. thesummons on the 28th June 1973. rendered him. liable to be.ejected from the premises.in question.
It is contended on behalf of the-Respondent: that the admittedpayment of the arrears of rent, which were set'.out in'the noticeof termination of the tenancy, by him before he appeared in ■Court on the 28.6:73 amounts' to a compliance with theprovisions -of ,section-2-2(3) (c) of the Rent Act No. 7 of -1 9.72':that, therefore, he has paid to the.landlord all arrears of rent duefrom: him. in respect'of which these- proceedings. have been'.
■ instituted: 'that he is thus entitled.- in law, to 'have the.dece'ased–plaintiff's action, to have' him ejected from the aforesaid-premises, dismissed.
The Substituted-Plainfiff. on the other hand, contends:.that thepayment so made by. the Respondent, after the institution ofthese proceedings but before the 28.6.1973. the date on whichthe Defendant appeared in Court in answer to the summons,does not, in lavy. constitute a payment of -'all arrears of rent" dueto him from the Respondent: that the words "all arrears'of rent",appearing in clause (c) of subsection (3) of section 22 of theRent Act No,- 7 of 1972, include also .the rent for the period ofthree months between t.he d.ate of the notice of.termination of thetenancy and the date on which such termination takes effect.
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The history of legislation in this Island, relating to therestriction of rent leviable in respect of premises which arerented out and to the ejectment of tenants from premises sorented out. commences in the year 1942 with the RentRestriction Ordinance No. 60 of 1 942. This Ordinance, whichwas e.nacted as a measure of emergency legislation during thelast world war and came into operation in December 1942.imposed, in section 13, restrictions on the right to instituteproceedings for ejectment of tenants. The institution of actions toeject tenants without the written authorisation of the relevantRent Control, Board was permitted where, inter alia, the tenanthas been in arrear for one month after it has become due.
The Rent Restriction Ordinance of 1942 was repealed by theRent Restriction Act No. 29 of 1948'which came into force from
949. The restriction of the right to institute proceedings forejectment, of tenants in occupation of rent-controlled premisesimposed by Section 13(1) of this Act had. however, noapplication where the tenant has been in arrear of rent for onemonth after it has become due — vide clause (a) of the proviso toSection 1 3 of the said Act.
Although, at the early stages, divergent views were expresed inregard to the construction of the provision relating to arrears ofrent — vide George v. Richard, ^ ) Fernando v. Samaraweera, (2).Seeyamba/ingam Chettiar v. Pitchchi Muttu C-hettiar. (3) in March1 954,. however, a Divisional Bench, in the case of Dias v. Gomes,
laid .down that where a tenant falls into arrears, of rent', thesubsequent tender of such arrears would not protect him frombeing ejected on the basis of the previous default. The Court didalso take the view that where, pending, an action for ejectmentunder the provisions of the said Act of 1 948. a tenant defaults inthe payment of monthly rent as and when they fall due. suchtenant could be ejected in a subsequent action on the basis ofsuch default — vide Vincent v. Sumanasena (5) Samaraweera v.Ranasinghe.
By Act No. 10 of 1961, which came into operation on the 6thMarch 1961, section 1 3 of the 1 948 Act was amended by theintroduction of an additional section, numbered- 1(a) which
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required the landlord to give three months notice of thetermination of the tenancy, before the institution of an action inejectment. It further provided that, if all siuch arrears were paidbefore the date of termination of the tenancy, the tenant was notliable to be ejected on the basis of such default. The question,which arose under the provisions of the said section as to whatwas required to be tendered by the tenant as arrears in order toprotect himself from being ejected, came up for consideration inthe case of Bardeen v. W. A. A.. de-Silva,^) The Supreme Courtdecided, that what was so required to be paid as "all arrears ofrent" by the tenant was only the-amount set out, in the notice oftermination of the tenancy, as being in .arrear, The contention.'put forward^oh behalf of the landlord, is that the obligation caston such a tenant is to tender not only the amount due as arrearson 'the date such notice of termination is given, but also allsubsequent rents which had.fallen due up to the date on which'such tender, is made. This view of the provision of the saidamending Act of 1961 was later followed in Ramzam v. (Mrs)S'ardar, The judgments of the Supreme Court in these twocases categorically laid down that the amount, which a tenant,who was said to be in default, had to tender to the landlord inorder to protect himself from being ejected by the landlord, .whohad given him notice of termination of tenancy, was only theamount specified in such notice as being the-amount in respectof which the tenant was in.arrear. and no more.
The Amending Act No. 1 2 of 1 966. which came into operationon 10.5.66, brought in a distinction between premises thestandard rent of'which exceeded. rupees hundred and thosewhich did not. and deemed the principal amendment so broughtin to have come into operation as .from' 20.7.1 962.
It was.in this state of the law that the Rent Act No. 7 of 1972,.which came into operation ,on’' 1st March. 19-72, waspromulgated…' ' – ;•
The provisions relating to proceedings for ejectment under thisAct are to be found in section 22;.and those relevant to the factsand circumstances of this case are set out in sub-section (2) and(3) of the said section 22. Subjection 3 provides that, even if a
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tenant has been in arrear for the period set out in sub-section2(1) (a) and the landlord has given notice of the termination ofthe tenancy as set out in paragraph (a) of the said sub-section(3). yet. the landlord shall not be entitled to institute an action inejectment if the tenant has prior to the institution of such-actiontendered to the landlord "all arrears of rent" (paragraph (b) of thesaid sub-section (3)). Furthermore., even if such an action inejectment is filed it cannot be proceeded with if the tenant has.oh or before the summons returnable date on which the tenanthas to appear in Court, tendered to the landlord "all arrears ofrent" (paragraph (c).of the said sub-section 3).
It is common ground that, in this case, the default complainedof is the first occasion on which rent had fallen into arrear, and• that the landlord had given .the Respondent the period of threemonths notice of the termination of the contract of tenancybetween them, from 27th March 1972 to 30th June 1972.
An examination of the provisions of section 22(2) of the RentAct No. 7 of 1972 shows that, whilst the provisions of Act No. 10of-1 961which afford the tenant the opportunity of tendering therent, which is in arrear, before the institution of proceedings tohave him ejected, have been reproduced' in paragraph (b) ofsection 20(3), a further opportunity of protecting himself bytendering the rent, which is in arrear, has been provided to thedefaulting tenant by the provisions of paragraph (c) of the self-. same subsection (3) of section 22 of the said Act No. 7 of 1972.
That the construction of the provisions, comparable to theprovisions of subsection. 3 (b) of the said section 22 of Act No.7of 1972, in' the earlier Act No. 10 of 1961. by theaforementioned judgments would be applicable in respect of theprovisions of sub-section 3 (b) of Section 22 of Act No. 7 of1972, was conceded by learned Counsel for the Respondent.Although he conceded that the words "all arrears of rent"contemplated by the provisions of the said'sub-section 3(b),would, in accordance with the aforementioned decisions, be onlysuch arrears of rent as a-re expressly set out in the notice oftermination.of the tenancy served on the tenant by the landlord,and on the basis of which proceedings in ejectment are sought
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to be instituted, learned Counsel for the Respondent, however,contended: that the provisions of sub-seetion 3;(e) in Act No. 7 of1972 are entirely new: that the two aforementioned judgmentsof the Supreme Court have no application to the situation'contemplated by the provisions of ■the said sub-section 3(e); that"all arrears, of rent" contemplated in sub-section 3(c) cannot andmust not beVestricted to only such arrears of rent as a re* set outin the notice set out by the landlord to the tenant terminating thecontract of tenancy as between them, but that the rent socontemplated also includes, in addition, all rents that" havebecome payable by the tenant to the 'landlord from the date ofsuch notice of termination up tO“the date, set'out; in: the saidnotice, as the date of termination of such tenancy:.that, therefore,on the fact's and Circumstances of this case, the tender iri termsof the said subjection 3(c) should include'.not only" all rentwhich were set out in the said action of-termination'as being dueupto-27,3.72. but'also all the. rents due to the landlord from thetenant in respect of the full period from. 27.3.72 :to 30:6,72,/
Admittedly, the payment ,mad,e by- the' Resppndentivtp Jhe■ deceased,-plaintiff jandl.ord,after ,2 7.3^72 has bee.n of rents dueonly up.to the 27.3.72. No-rent whatsoever has been, tendered tothe landlord for. the period 27.3.1 972-to,30:6.-;1 972, or any partof such period/
The only decision handed down by the Supreme Court, dealingwith the provisions of 'Section 22(3) (b) of.Aet No>7.oM 972;. towhich the attention of this Court was1 drawn' by learned "Counselat the "argument is the, decision in . the' base .'.of' 'Ansar'mHussain Wanasundera. J, in-deafing' with/paragraph (c).'ofSection v22(3) observed-that it: "is. merely/an,extension 'of'thedate for-tender and is not intended' to increase the amount-of thearrears' eontemplated'. It.-is difficult :to read/into-this provisionwhich-is by way of a concession to the tenant the imposition ofany additional burdens on him/
' In Ans'br's case the argument’ advanced on.-behalf of thelandlord was that what' has to be tendered on–or beforerthe-summons'returnable date as-"all arrears'of rent" is not’only that
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which is set out in the notice of. termination as being in arrear.but also all rent payable from the date of such notice upto thedate of tender.
In support of the contention that the words "all arrears of rent"in sub-section 3(c) should be given a wider interpretation thanthat placed upon the same words "all arrears of rent", containedin clause (b) of sub-section (3). learned Counsel for thesubstituted-Plaintiff submitted that, in enacting the provisions ofclause (c) of sub-section (3) granting the tenant in default afurther opportunity, the legislature has intended that a tenant,who seeks to avail himself of such extended opportunity, should,in order to benefit from such extension, also be required to payall rent payable by him in respect of the period commencingfrom the dates of the notice of termination and ending on thedate on which such termination becomes effective.
In regard to this contention it must be noted that thelegislature has. by sub-section 4 of the said Section 22 expresslysubjected a defaulting tenant, who instead of availing himself ofthe protection afforded to him by clause (b) of sub-section (3).takes further :ti‘me> until the date set out by the provisions ofclaus'e (c) ofthe-said sub-section 3, to make good the arrears, tothe risk of facing a penalty. The errant tenant runs the risk ofhaving to pay a fine if the court were to form the opinion thatthere was no sufficient cause for such delay on the part of thetenant'in payme'nt of-'the rent.-A defaulting tenant who availshimself. Of the protection granted by the provisions of clause (b)does hot run the risk- of having, to pay such a fine. If thecontention-.of .learned Counsel, in regard to the construction tobe placed upon the provisions of sub-clause (c). is accepted, itwould then amount to a tenant, who seeks to avail himself of theprovisions ohthe said clause (c).?being subject to two "additionalburdens". paying-an additional sum by way of rent over and'above what has been demanded in the notice to quit, and alsoexposing himself to the risk of having a.fine imposed upon him.There is no justification, in my opinion, for taking the view thatthe legislature did intend.to penalise to that extent a tenant, who,insteadlo.f paying the arrears of rent demanded from him-in thenotice ..of Termination-of tenancy before.action is filed against
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him. seek to do so a step later, after plaint is filed but before heappears in Court in answer to the summons. .
Furthermore, as Act No. 7 of .1 972. was promulgated only afterthe aforesaid decisions of the Supreme Court — Bardeen's case(supra) and Ramsan's case (supra) — were handed down, thelegislature must be presumed to have intended to give the words"all arrears of rent." appearing in clause (b.) of the said sub-section (3). the same meaning as has already been placed uponthem by the Supreme Court — vide: Bindra: Interpretation of.Statutes (7th Ed) ps. 310.— 312. As already indicated, the'words ."all arrears of rent" appearing in clause (b) in the saidsubsection (3) also appear in clause (q) of the self-same sub-section .(3). It is also an accepted rule of construction that thesame words appearing in different parts of the same enactmentshould ordinarily be given the same meaning — vide Bindra(supra) ps. 310 — 312; Maxwell; Interpretation (12th Ed.) ps.278 – 282. …. ''' ' , ■' •.
■ No convincing ground has,'.in'my opinion, been urgedwhythewords "all arrears of rent" appearing in the said claus'e (c) shouldbe given a different meaning from that given to the-same wordsappearing in clause (b) of the self-same sub-section. The contextin which the said words appear, far from giving any indicationthat they should be given a different meaning, rather tend toindicate that the i ntention of'the framers of the enactment wasthat these words appearing in the said clause (c) of sub-section(3) should have the same meaning as given to them in clause (b)in the self-same sub-section.
' In this view-of the matter, I am of opinion' that the words "all.arrears of. rent"-.appearing In clause (c) of sub-section’(3)-ofSection 22 of the Rent Act No. 7 of 1972 should be given the•.same construction as has been placed by this Court upon-thewords "all arrears of rent" appearing in clause (b) of the'self-same sub-section (3), viz: only such rent as has been specified inthe notice of termination of the tenancy as being inarrear. and■nothing more, nothing less.
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The appeal of the Substituted-Plamtiff-Appellant is. therefore,dismissed with costs.
BANDARANAYAKE. J.. — I agree.amerasinghe, J.. — I agree.
Appeal dismissed