015-SLLR-SLLR-1997-V3-CHANDRASENA-v.-ALFRD-SILVA.pdf
Sri Lanka Law Reports
[1997] 3 Sri LR.
136
CHANDRASENA
V.
ALFRED SILVA
COURT OF APPEAL.
DR. RANARAJA, J.
A. 301/89(F)
C. BALAPITIYA 129/RE
DECEMBER 03, 1996.
Rent Act 5 of 1972 – Sub-letting – Without written consent – Exclusive possession
– Waiver and Condonation.
Held:
A breach by the tenant of the prohibitions against sub-letting could be waivedby the landlord expressly or impliedly.
Waiver and Condonation are not always the same as consent.
When the tenant has sub-let without the landlords' written consent, the landlordmust elect whether or not to treat the contract as terminated. He must makehis election forthwith and not so long after wards as to suggest condonation orwaiver.
There is sufficient evidence to show that the previous landlord had notobjected to sub-letting and therefore implicitly condoned the 1st defendant'sconduct and waived his right to eject him by filing action forthwith.
APPEAL from the District Court of Balapitiya.
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Chandrasena v. Allred Silva (Dr, Ranaraja, J.)
137
Case referred to:
Carder v. Menike- 1983- BALR Vol. 1 Part 1 – Page 38.
A. K. Premadasa, P.C, for plaintiff-appellant.
C. S. Hettihewa for defendant-respondent.
Cur. adv. vult.
December 10, 1996RANARAJA, J.
The plaintiff instituted action for, ejectment of the defendants frompremises No. 52, and 52 2/1, Wilegoda, Ambaiangoda, recovery ofarrears of rent and damages from the 1st defendant-tenant, on thegrounds of sub-letting and arrears of rent. The 1st to 3rd defendantsfiled a joint answer stating that the 1st defendant took the premiseson a monthly rental of Rs. 250/- in 1964, from one K. K. Handy Silva,the father of the plaintiff, who died in 1975. Thereafter, the plaintiff’smother received the rent on behalf of the plaintiff. They pleadedfurther that the said Handy Silva and thereafter the plaintiff hadcondoned the sub-letting of the upper floors. That the authorisedmonthly rent for the premises was not more than Rs. 110/-, andcounterclaimed a sum of Rs. 5040/- overpaid for the periodSeptember 1982 to September 1985.
At the commencement of the trial, the 1st defendant admitted thathe was the tenant of the premises under the plaintiff. Trialcommenced on 14 issues, at the conclusion of which, Judgment wasentered dismissing the plaintiff’s action with costs. This appeal is fromthat Judgment.
The learned counsel for the plaintiff-appellant submitted that theDistrict Judge was in error in holding that there was condonation ofthe sub-letting in the absence of any evidence.
Section 10( 1) of the Rent Act provides;
“For the purposes of this Act, any part of any premises shall bedeemed to have been let or sublet to any person, if, and only if, such
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person is in exclusive possession, in consideration of the payment ofrent, of such part, and such part is a defined and separate part overwhich the landlord or the tenant as the case may be, has for the timebeing relinquished his right of control; and no person shall bedeemed to be the tenant or the sub-tenant of any part of anypremises by reason solely of the fact that he is permitted to use aroom or rooms in such premises".
Section 10 (7) of the Act reads;
"Nothing in sub-section (2), sub-section (5) or sub-section (6) shallapply to the sub-letting of any premises or part thereof without theprior consent in writing of the landlord, where such premises or parthad been sub-let prior to the date of commencement of this Act toany person, so long as that person continues to be the sub-tenant ofthe premises or part thereof”,
“A breach by the tenant of the prohibition against sub-letting couldbe waived by the landlord expressly or impliedly. Waiver andcondonation are not always the same as consent. When the tenanthas sub-let without his written consent, the landlord must electwhether or not to treat the contract as terminated. He must make hiselection forthwith and not so long afterwards as to suggestcondonation or waiver". See Carder v, Menike1".
To succeed in her action, the plaintiff had to prove that the 1stdefendant had after, the Rent Act came into force, sublet without herwritten consent, defined and separate parts of the premises in suit, tothe 2nd to 4th defendants, which the 1st defendant had givenexclusive possession to the 2nd to 4th defendants and over whichthe 1st defendant had relinquished control, in consideration of rentpaid by the 2nd to 4th defendants. Further, that she had institutedaction to eject them no sooner she became aware of such sub-letting.
The defendants have admitted that the 2nd and 3rd defendantshave occupied rooms in the said premises, without payment of rent tothe 1st defendant, for over ten years. They claim, since the plaintiff
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Chandrasena v. Alfred Silva (Dr. Ranaraja, J.)
139
has shown no objection, she has by her conduct, impliedly condonedtheir occupation of the said rooms.
The plaintiff claims to be the landlord of the premises from01/08/1980. She made complaint P1, to the Grama Sevaka on01/02/1984, stating that the 1st defendant who took on rent the saidpremises from her father in 1964, had sublet parts thereof to the 2nd,3rd and 4th defendants. She had requested the Grama Sevaka toobtain statements of the defendants, which he did. The 1st defendantby statement P3, has denied any sub-letting. The 2nd defendant bystatement P4 admitted running a 'Record bar' with the permission ofthe 3rd defendant in the balcony of the 2nd floor, without paying anyrent. The 3rd defendant had in statement P5 admitted taking on rentthe upper floor 14 years earlier from the 1st defendant at a monthlyrental of Rs, 125/-. According to the statement P6 made by the 4thdefendant, he holds ‘Karate Classes' on the 3rd floor with thepermission of the 3rd defendant, without payment of any rent. Theplaintiff and her brother, who gave evidence were not aware when the3rd defendant came to occupy the upper floors. Nor was the GramaSevaka, who recorded statements P1. P3, P4, P5 and P6. able toenlighten, when the 3rd defendant commenced business at thepremises.
The 1st defendant has during the course of his evidence statedthat after taking the premises on rent in 1963, he sub-let the upperfloors to the 3rd defendant in 1972, and that the plaintiff's father, whowas the landlord at the time, had no objection to such sub-letting anddid not object to the 2nd defendant carrying on a "Record bar" in thebalcony of the 2nd floor from 1976. This evidence is corroborated bythe evidence of the 3rd defendant, who stated as far as he couldremember, he took the upper floor on rent from the 1st defendant inor about 1970-71. In 1985, he had permitted the 2nd defendant tocommence a 'Record bar’ in the balcony of the 1st floor withoutcharging any rent. The 4th defendant held ’Karate’ Classes on the2nd floor. He paid no rent either to the 1st or 3rd defendants. Thisevidence is corroborated by documents P3 to P6, produced by theplaintiff herself. The fact that the 3rd defendant had registered hisbusiness in 1974, is disclosed by witness Jayawardena.
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The plaintiff has not led any evidence to contradict the evidenceled by the defendants or dislodge that evidence. In the result, therewas sufficient evidence to show that; (a) the sub-letting by the 1stdefendant to the 3rd defendant was prior to the operation of the RentAct, (b) the previous landlord had not objected to that subletting andtherefore implicitly condoned the 1st defendant's conduct andwaived his right to eject him from the premises by filing actionforthwith, (c) the sub-tenant-3rd defendant who took on rent theupper floors in 1970-71 continued to occupy that portion of thebuilding after the Act, (d) the 2nd and 4th defendants are the 3rddefendant’s licensees, (e) the receipts produced by the 1stdefendant show he has deposited the rents due. with the LocalAuthority.
The Judgment of the District Judge is therefore affirmed. Theappeal is dismissed with costs fixed at Rs. 5000/-.
Appeal dismissed.
Note by Editor:The Supreme Court on 10.11.97 refused special
leave to appeal to the Supreme Court in SC SPLA260/97.