057-NLR-NLR-V-63-D.-GUNARATNE-Appellant-and-U.-L.-P.-PERERA-Respondent.pdf
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S1NNETAMBY, J.—Gunaratne v. Perera
1961Present; Sinnetamby, J.GUNARATNE, Appellant, and U. L. P. PERERA, RespondentS. C. 188159—G. R. Colombo, 72154
Rent Restriction Act, No. 29 of 1948—Section 13 (1) (a)—Late payments of rent bytenant—Effect on right of landlord to eject tenant.
A tenant would be liable to be ejected under seetion 13 (1) (o) of the RentRestriction Act if the rent is in arrear for one month after the due date, evenwhen the landlord has usually accepted without protest late payments of rentbut not, except rarely (two occasions in the present case), later than one monthafter the due date specified in the contract of tenancy.
Suppiah v. Kaniiah (1957) 58 N. L. R. 479 and Jayakody v. Pedris (1959)60 N. L. R. 422, distinguished.
Adamjee Lukmanjee dt Sons Ltd. v. Ponniah rUlai (1959) 61 N. L. R. 181,followed.
_A_PPEAL from a judgment of the Court of Requests, Colombo.
H. V. Perera, Q.C., with D. R. P. GooneliUeke, for the Defendant-Appellant.
C. Ranganaihan, with M. L. de Silva, for the Plaintiff-Respondent.
Cur. adv, wit.
September 13, 1961. Sznnetamby, J.—
The plaintiff instituted this action for ejectment against the defendantalleging that the authorisation of the Rent Restriction Board was notnecessary as the defendant was in arrears of rent in respect of the monthof August, 1958, for more than one month after it had become due.The terms of the contract of the tenancy were embodied in the documentP 1 which expressly provided that the rent for any month had to bepaid before the 10th of the succeeding month. The rent for August, 1958,therefore, had become payable on the 10th of September, 1958, but wasin fact paid on the 17th October, 1958. On this basis the plaintiff wouldordinarily have been entitled to institute the action. The defendant,however, alleged that in as much as rents had not been regularly paidon the due dates, but in each case had been paid towards the end of thefollowing month, the date of payment had been altered from the 10thof the month following the month for which it was due to the end of thatmonth. The learned Commissioner of Requests declined to accept thisproposition and held that the plaintiff was entitled to an order forejectment. Against the learned Commissioner’s finding the defendanthas appealed.
SINNETAMBY, J.— GunarcUne v. T*«rera
275
The question argued before me was purely one of law. The contentionof the appellant was that plaintiff, by his conduct in persistently acceptingrents without protest towards the end of the month though under theterms of the agreement it had to be paid on the 10th, had varied the termsof the contract to that extent. Hence, when payment was made on the17 th October, 1958, the defendant was not in default of the August rentfor a period of one month after it had become due.
I should like, first of all, to refer to certain findings of the learnedCommissioner on the facts. He held that after the institution of thepresent action, the defendant had continued to pay rents on the 10th ofevery following month. P 4 was a reply sent by the defendant to P 3which was a notice to quit dated 16th October, 1958. In that letterthere is not the faintest suggestion that the date of payment had byconduct been altered. The only suggestion made is that the relevantrent which had been tendered on the due date, had been rejected. Docu-ments D 1 to D 52 are rent receipts. These receipts show that only2 of them relate to payments made more than one month after the renthad in terms of the tenancy agreement become due. They are D 1which is in respect of January and February 1949 and is late only inrespect of January, and D 50 which is rent for May paid on 14th July,4 days late ; the rent for May would have been payable on the 10th ofJune and 14th July would be more than one month after it had becomedue by 4 days. Apart from these two payments all other paymentshave been made after the due date but within a month of the due date.The learned Commissioner also held that the tenant was in actual factin no way misled by the landlord’s conduct into thinking that he couldpay the rent towards the end of each succeeding month instead of onthe 10th.
In support of his argument the learned counsel for the appellant reliedupon two cases both of which were decided by my brother Fernando.In the first of these two cases Sujypiah v. Kandiah 1 the head note isliable to be misleading. What the learned Judge held in that case wasthat the plaintiff had failed to establish that under the tenancy agreementrent had to be paid monthly in advance, as averred, on the 15th of eachmonth : on the contrary the documents produced suggested that it wasnot so payable. The learned Judge states :—
“ before the plaintiff can establish that rent was in arrears he had toestablish when it became due and in the face of the documentaryevidence it was, in my view, impossible for the plaintiff to contend thatthere had been an agreement to pay the rent from month to month.”
And then went on to observe :—
“ It seems to me, that the real question is whether the practice doesnot show that there was an implied agreement to pay and accept rentsabout once in 2 or 3 months.”
* (1957) 58 N. L. R. 479.
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* SDfNETAMBY, J.—Gfvnaratne v. Per era
That case, it seems to me, does not suggest that a term of thecontract of tenancy which expressly stipulates that rents shall be payableby a certain date can be varied by a subsequent practice. All that thatcase decided is that the plaintiff had failed to establish the date on whichrent was payable and the practice suggested an implied agreement forpayment to be made once in 2 or 3 months. In Adamjee Luhmanjee <Sc Co.v. Ponniah Pillai1, after referring to the case of Suppiah v. Kandiah '(supra), the present Chief Justice refused to follow it. If Suppiah v.Kandiah did really decide that where there has been a date of paymentfixed in the contract of tenancy the question of whether the tenant is inarrears must be considered not with reference to the stipulated date butwith reference to the practice which existed, I would prefer to follow theviews expressed in Adamjee Luhmanjee <fe Co. v. Ponniah Pillai (supra).
In the 2nd case decided by H. N. G. Fernando, J. namely JayaJcody v.Pedrisa, he followed certain observations made by Chief Justice Water-meyer in the case of Garlick v. Phillips3. The facts in JayaJcody v.Pedris (supra) are entirely different to the facts of the present case. Inthat case the defendant had consistently made late payments of rentmore than one month after each had become due ; that is, after theright to sue in ejectment had accrued to the landlord. The learnedJudge did not suggest that thereby the terms of the tenancy agreementwere altered. All he said was, following the South African case, that theplaintiff having frequently accepted late payments, if he intended toexercise his right to sue for ejectment it was his duty to inform the defen-dant explicitly that no further late payments will be accepted. In thatcase the plaintiff had by his conduct led the tenant to believe that suchlate payments were excused. In those circumstances the court heldthat there was a duty imposed upon the landlord to inform the tenantof the change in his attitude.
In the present case the late payments were not so long delayed as to givethe plaintiff a right to sue. He did not by his conduct lead the tenantto think that he would not exercise the right to sue which in practicallyall those instances had not accrued to him : the only right the plaintiffhad was, perhaps, to institute action for the recovery of the rent whichhad not been paid on the due date, but he certainly was not entitled inall those cases bar two, to institute an action for ejectment. The tenantcould not, therefore, legitimately complain that the landlord by hisconduct led him (the tenant) to believe that he would not render himselfliable to be sued in ejectment ; he did not in fact say so when notice toquit was served on him. All he could have been led to believe was thatrents need not be paid on the due date and that no action would be takenfor the recovery of those rents if they were paid before the end of thatmonth bn the 10th of which, under the terms of the contract, the rent waspayable.
1 {1959) 61 N. L. R. 181.* {1959) 60 N. L. R. 422.
* 1949 South African Law Reports 121.
6DTNETAMBY, J.— Gunaratne v. Pcresra
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In Garlick v. Phillips (supra) the Appellate Division of the SupremeCourt of South Africa considered a case where the rent was payable on the1st day of the month under the terms of the contract and the court wasconstruing an enactment which provided that if the rent was paid on thedate on which it was due, an order of ejectment will not be available tillNovember, 1948, to a landlord who had given due notice to quit. TheStatute was a war measure which prohibited the courts from grantingejectment against tenants of business premises until November, 1948,in spite of the fact that the lease had been terminated by notice provided,however, that the rents were duly paid. In that case, the landlord hadaccepted late payment of rents for a considerable period of time and it wascontended that the condition of the lease requiring payments “ in advanceon the 1st day of each month ” had been modified by the conduct of theparties. The Appellate Court while not holding that there was a modi-fication to the terms of the contract held that the landlord by his conducteither gave revocable permission to the tenant to pay rents late or hadled the tenant to believe that such permission had been given. If thefirst was the true legal position, the court held that the tenant’s obligationwas temporarily modified but if the latter was the true legal positionthen something in the nature of an estoppel arose which precluded thelandlord from denying that he had given such permission. It is to benoted that in Garlick v. Phillips (supra) the late payment under the termsof the contract gave the landlord an immediate right to sue in ejectment.By not doing so over a long period of time he had led the tenant tobelieve that he, the tenant, could, without rendering himself liable inejectment, make the late payments. The landlord’s conduct operatedto the tenant’s detriment in that the tenant thought that no adverseconsequence would follow from late payments.
In the present case, the only way in which the landlord’s conductwould have prejudiced the tenant was, as I have already stated, to leadhim to believe that he would not be sued for the recovery of rents whichwere not paid on the 10th provided they were paid within that month.The tenant was certainly not led to believe that he would not be sued inejectment because the right to sue in ejectment had not accrued in anyone of these cases except two, to the landlord. The landlord’s conduct,therefore, did not and could not have led the tenant to think that if he wasmore than one month in arrear after the 10th of the month on which therent was payable under the terms of the contract, the landlord would notexercise his right. On this basis the present case is entirely differentto the case of Jayakody v. Pedris.
I would, therefore, hold that there has been a default on the part of thetenant which resulted in the rent being in arrears for more than onemonth after it had become due and that the plaintiff was entitled tomaintain his action in ejectment. The appeal is accordingly dismissedwith costs.
Appeal dismissed