ABEYESUNDERE, J.—Wimalasena v. Beinuldeen
Present: Abeyesundere, J., and Sri Skanda Rajah, J.L. WIMALASENA, Appellant, and U. L. SETNULDEEN, Respondent.S. G. 68/1962—D. G. Matcde, 1571 jM. R.
Landlord and tenant—Arrears of rent—Excess sums paid by way of rent prior todate of default of payment—Right of set-off—Prescription—Rent RestrictionAct.
In a contract of tenancy governed by the Rent Restriction Act, excess sumspaid by way of rent during the three years immediately anterior to the datewhen the tenant makes default in the payment of rent are in law availableto the tenant for deduction from the rent due from him.
Appeal from a judgment of the District Court, Matale.
N. R. M. Paluwatte, for the defendant-appellant.
8. Sharvananda, for the plaintiff-respondent.
November 28, 1963. Abeyestinbebe, J.—
The plaintiff in this action is the landlord of the premises in suit andthe defendant is the tenant thereof. The action is for the recovery ofarrears of rent and damages from, and for the ejectment of, the defendant.
According to the evidence of the plaintiff, the defendant has paid theplaintiff rent at the rate of Rs. 40 per mensem upto October 31, 1957.The authorised rent of the premises is Rs. 20 per mensem. The defendanthas therefore paid Rs. 20 per mensem in excess of the authorisedrent upto the aforesaid date.
The learned District Judge has delivered judgment in favour of theplaintiff and has held that the defendant’s claim in respect of the sumspaid in excess of the authorised rent is entirely barred by the provisionsof the Prescription Ordinance. The period of prescription is three years.We are of the view that the learned District Judge has erred in holding
ABEYESTJNDERE, J.—Wimalasena v. Seinuldeen
as aforesaid because the excess sums paid by the defendant to the plaintiffduring the three years immediately anterior to April 1, 1959, when hemade default in the payment of rent, are available to the defendant in.law for deduction from the rent due from him. Those three years com-mence on April 1, 1956, and end on March 31, 1959. Although thedefendant has paid sums in excess of the authorised rent upto October31, 1957-, only the excess paid during the period of 19 months commencingon April 1, 1956, and ending on October 31, 1957, being the period fallingwithin the aforesaid three years, is in law available to him for deductionfrom the rent due from him. The total amount paid by the defendant inexcess of the authorised rent during the aforesaid period of 19 monthsis Rs. 380-
The defendant is entitled to set off the aforesaid sum of Rs. 380 againstthe rent due from him for the 19 months from April 1, 1959, to October31, 1960. After making that set off, the defendant is in arrears of rentfor the four months immediately preceding the month in which the actionwas instituted. It was in March, 1961, that the action was instituted.The plaintiff was therefore entitled to maintain the action against thedefendant.
The learned District Judge has awarded the plaintiff damages at therate of Rs. 40 per mensem. The plaintiff is not entitled to damages attwice the amount of the authorised rent per mensem. He is entitled todamages at the rate of only Rs. 20 per mensem.
We vary the decree of the learned District Judge—
by substituting in the first paragraph thereof, for all the wordsand figures from “ pay to the plaintiff the sum” to “till defend-ant is ejected ”, the following :—
“ pay to the plaintiff the sum of Rs. 80, being arrears of rentdue from November 1, 1960, to February 28, 1961, andalso damages at Rs. 20 per mensem from March 1, 1961,till the defendant is ejected ” ;
and (b) by deleting the following words :—
“ And it is further ordered that the defendant do pay to theplaintiff his costs of action taxed by the Officer of thisCourt. ”
Subject to this variation, the decree of the District Court is affirmed.The plaintiff shall not be entitled to either the costs of the action in theDistrict Court or the costs of the appeal, but shall be entitled to the costsof execution, if any.
Sri Skanha Rajah, J.—I agree.
D. L. WIMALASENA, Appellant, and U.L SEINULDEEN, Respondent