017-NLR-NLR-V-59-C.-SELLAHEWA.-Appellant-and-D.J-RANAWEERA-Respondent.pdf
– CO• K. D. do SILVA, J.—Sellahewa v. Ranaweera
'1956>Present: '.K. D. de Silvaj J. :>'
C. SELLAHEWA, Appellant, and D. J. RANAWEERA,
Respondent.
… '■S. C. 217—O. JR. Hambantofa, 6,552'~ .~
. Landlord and tenant—Conditional notice to quit—Validity—Increase of rent bylandlotd—Liability of tenant to pay it—Overholding tenant—Damages.
A notice to quit given by a landlord to his tenant is not invalid .if it is totnUo effect only if the tenant is unwilling to.pay certain increased rent in the• future. If, in such c. case, tho tenant decides not to pay the enhanced rent,ho is not entitled to complain that the notice to quit was bad in that it wasnot an unqualified notice.'
A tenant is not liable to pay enhanced rent unless he agrees to’pay suchrent. Tho landlord cannot increase the rent without tho consent of tho tenant.A landlord cannot claim from an overholding tenant damages on tho basis• of a fair value of the use and occupation of tho premises in question unless thereis evidence as to what is the fair value of the use and occupation.
_.^vPPEAL from a judgment of the Court of Requests, Hambantota. .
A. F. Wijemanne, for the defendant appellant.
B. Wilcramanayalce, Q.G., with S. IV. Walpila, for the plaint iff*respondent..■
Cur. cidc. viilt.
December 20, 1956. de Silva, J.—.
In this action the plaintiff successfully sued his monthly tenant thedefendant appellant to eject him from the premises described in the*plaint and to recover arrears of rent. Admittedly the building in questionwhich is -a boutique situate at Ambalantota is not governed by theprovisions of the Rent Restriction Act. The defendant became the tenant-of the boutique under the plaintiff about 14 years ago at a monthlyrental of Rs. 6 which was later increased to Rs. 10 and thereafter to.Rs. 20. He has paid rent up to the end of Eebruary, 1954. On January30, 1954, the plaintiff through his Proctor sent to the defendant the noticePI which reads :—
’To :'. *
Sellahewa of Ambalantota'
“ I am instructed by Mr. D. J. Ranaweera of Yatiyana to request 'you to pay a sum of Rupees forty per month as rent from 1st March1954 in respect of premises bearing-Assessment No. 34 situated atAmbalantota rented out to you.,-'
In failure thereof I am further instructed to inform you to vacate•the said premises on 1st March 1954.”‘
Sgd. A. E. Buxtjeks,
-Proctor.
f.7
K. D. els SILVA, J.—Sellaheica v. Bamtceera
The defendant declined to pay the enhanced rent and also failed to-vacate the premises. The plaintiff then instituted this action on July 22,1954, claiming a sum of Rs. 200 as arrears of rent up to end of June, 1954,and praving for an order of ejectment. It was contended on behalfof the defendant that the notice to quit was bad in that it was not anunqualified notice. The claim for enhanced rent was resisted on theground that there was no agreement by the defendant to pay such rent.
I am not prepared to hold that the notice to quit is invalid for thereason that it was to take effect only if the defendant was unwilling topav the enhanced rent. This notice made it quite clear to tho defendantthat he wasto vacate the premises on March 1,1954, if he was not, preparedto comply with the demand for increased rent. The defendant havingdecided not to pay the enhanced rent is not entitled to complain that thenotice is defective. Xo prejudice was caused to him because the noticeto quit was to take effect only if he was unwilling to pay the rent demanded.
The next question to be considered is what amount is the plaintiffentitled to recover as arrears of rent. It is clear from the plaint that theplaintiff claimed rent and not damages as from March 1, 1954. Theissues too were formulated on the same basis. As from March 1, 1954,the plaintiff claimed rent at the rate of Rs. 40 a month. Rent is payablein terms of the contract of tenancy entered into between the parties.The landlord cannot increase the rent without the consent of the tenantjust as the latter cannot reduce it without the consent of the former—Wi lie’s Landlord &, Tenant (1910 Edition, Page 55) and de Silva et al. v.Perera, h Mr. Wikramanayake, Q.C., who appeared for tho plaintiff,respondent while conceding that he was not strictly entitled to claimrent as from March 1, 1954, submitted that he had the right to recoverfrom that date rent for use and occupation. But in this action no attemptwas made to recover any sum for use and occupation. In the Courtbelow it appears to have been contended by the Proctor for the plaintiffthat according to the informal agreement between the parties the plaintiffwas entitled to raise the rent-. The learned Commissioner has shared -that view. He after referring to the increase of rent on two previous-occasions proceeds to say :—
" Therefore his plea that there was no original agreement to paythe enhanced rent cannot stand because the defendant had consentedto pay the increased rent of Rs. 10 and Rs. 20 earlier ”.
– T find it difficult to appreciate this reasoning. Because on two previousoccasions the tenant agreed to pay the increased rent it does not followthat the landlord is entitled to recover from the tenant, on subsequentoccasions too, enhanced rent even though the latter is unwilling to pay-subh rent. Of course if the parties had earlier entered into an agreementwhereby the plaintiff was given the right to increase the rent withoutthe concurrence of the tenant the position would be different-. Xo:such agreement has been proved although the learned Commissioner■has referred to an ” original agreement ”.
. 1 (192S) 29 A. L. B. 50C.
G8 .. ' H. Is. G. FJERNAJsDO, J.—Bdgaivathiya Pillai v. Zahccd ;
• A landlord is entitled to recover damages from an overholding tenant-at a higher rat?, than the-rent hut such damages have to be assessedon the basis of a fair value of the use and occupation of the premises—Jacobs v. Ebert In this case there is no evidence as to what, is the fair-value of the use and occupation of the premises in question. •.»•
I -would therefore enter judgment for plaintiff in ejectment and damagesat the rate of Us. 20 per month as from March 1,1954, till the restorationof possession -with costs.- The defendant vvill be entitled to the costs-of this appeal.' –
Decree varied.