D. M. J. DE SILVA v. MALLIKA PERERA

039-SLLR-SLLR-1989-V-2-D.-M.-J.-DE-SILVA-v.-MALLIKA-PERERA.pdf


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D.M.J. DE SILVA
V.
MALLIKA PERERA
SUPREME COURT
' BANDARANAYAKE, J., KULATUNGA, J. ANDRAMANATHAN, .J.
S.C. APPEAL No.64/87
S.C. SPECIAL LEAVE TO APPEAL No. 88/87
A. 636/79(F)
C. PANADURA i5431/REOCTOBER 30, 1989.
Landlord and tenant – Arrears of rent – Rent deposited by tenant's daughter at U.C.- Was it rent paid by. tenant and was it payment to the landlord? – Rent Act, No. 7of 1972, section 21.
The tenant's daughter had deposited the rent at the U.C. in favour of the landlord andthe Special Commissioner had invited the landlord to collect the money in deposit.
The contentions were –
the rent was not paid by ?he tenant as required by section 21 and
there was no payment in favour of the landlord
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D.M.J. Da Silva v. Mallika Parera (Ramanathan, J.)
353
It was admitted that the defendant had deposited- rent in the name of the deceasedlandlord even after his death. The landlord’s son admitted that the defendant wasdepositing the rent at the Urban Council and the landlord's son requested the rent be'paid to him. The tenant wrote to the Chairman U.C. Moratuwa that rent of thepremises would be paid by his daughter.
Held –
1. The deposit of the rent at the U.C. was on behalf of the tenant by his daughterwho was not claiming the tenancy for herself. Such payment falls within section 21(1)of the Rent Act.
'2. The rents had in fact been paid in the name of the landlord. This, continued evenafter the landlord's death. The landlord had left a last will in respect of which probatehad not yet been issued. The landlord's heirs were his son the plaintiff and twodaughters. Hence a prudent tenant would have recourse to section 21 of the Rent Act.-
The payment of rent to the U.C. being in accordance with section 21(1) of theRent Act, such payment is under section 21(2) “deemed to be a payment received onthat day by the landlord of the premises from the tenant thereof." Hence the paymentmust be deemed to be to the landlord. Section 21 should not be construed in anunduly narrow and technical manner.
To be entitled to the benefit of section 21 all that has to be established is thatpayment was made to the Urban Council.
Case referred to:
1. Husseniya v. Jayawardena and another [1.981] 1 Sri LR 93.'
APPEAL from judgment of the. Court of Appeal.
P.A.D.Samarasekera, P.C. with J.A. da Gooneratne for plaintiff – respondentA.C. Gooneratne, Q.C. for the substituted defendant – appellant – respondent
Cur. ady. vult.
December 04, 1989.
RAMANATHAN, J.
The plaintiff as landlord instituted this action to eject the defendantwho was the tenant from the premises for arrears of rent. Theplaintiff’s, case was that the defendant, was in arrears of rent fromNovember 1972 for a period of over three months. The defendant inhis answer pleaded that he deposited the rent at the. Urban Counciland denied that he was in arrears of rent. The District Judge enteredjudgment for the plaintiff -and ordered, ejectment of the defendant.
It was common ground that the defendant was originally the tenantunder the plaintiff’s father D.H.L. de Silva who died in December,1972. At the hearing before us Mr. Samarasekera, President’sCounsel for the plaintiff-appellant reiterated the submission which he
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had made in the Court of Appeal that although rents in respect of thepremises in suit were regularly deposited at the Urban CouncilMoratuwa being an “authorised person" under Section 21 of theRent Act No.7 of 1972, such payment was not sufficient to dischargethe liability of the defendant-respondent for the reason –
that the rent was not paid by the tenant as required by Section21; and
that there was no payment in favour of the plaintiff-appellant aslandlord.
As regards the first point it was urged by Mr. Samarasekera thatthe receipts and other documents prove that it was not the tenant buthis daughter Mallika Perera who had paid rent; and that suchpayment cannot be regarded as having been made on behalf of herfather, the tenant. Counsel relied on P4 a letter dated 17.01.75 sentby the Urban Council informing him that rents have been paid byMallika Perera. Furthermore, P5 was a letter dated 27.04.76 sent bythe Special Commissioner to the plaintiff-appellant indicating thatMallika Perera was the tenant of the premises. It was contended bycounsel that P4 and P5 and receipts D3 to D21 show that thedefendant was making an attempt to create a tenancy in MallikaPerera.
The Court of Appeal rejected this submission after considering therelevant evidence consisting of
an admission recorded at the commencement of the trial to theeffect that the defendant has deposited rent in the name of thedeceased D.H.L. de Silva even after December, 1972;
the plaintiff’s evidence under cross-examination that thedefendant was depositing the rent at the Urban Council, and thathe requested to pay the rent to him;
the letter dated 20.06.73 addressed to the Chairman, UrbanCouncil Moratuwa by the defendant (D2) stating that thereafterthe' rent in rspect of these premises would be paid by hisdaughter Mallika Perera.
The Court of Appeal, held that on the facts, it was fair andreasonable to hold that the deposit of rent by Mallika Perera was onbehalf of her father, the admitted tenant of the premises and .suchpayment falls within Section 21(1) of the Rent Act. In reaching thisconclusion, the Court distinguished the decision in Husseniya vs.
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D.M.J. De Silva v. Mallika Perera (Ramanathah, J.)
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Jayawardena & Another (1). That was a case in which the rent wasdeposited by a sub-tenant who claimed to be a tenant; in the instantcase Mallika Perera who deposited the rents did not claim to be atenant or any other right to occupy the premises in suit. I am inagreement with this finding.
The other point urged on behaif of the appellant namely, that thepayment of rent was not made in favour of ihe plaintiff who was thelandlord was also rejected by the Court of Appeal. The court said thatit is quite true, as stressed by Mr. Samarasekera that the rents hadin fact been deposited in the name of the deceased father of theplaintiff but observed that it was relevant to note that the rents hadbeen so deposited at the Urban Council even prior to the death of theplaintiff’s father and that this practice continued even after his death;that the last will (P8) was not proved and the intestate heirs of thedeceased included not only the plaintiff but his two sisters as well;that in view of these special circumstances it.would not have beenunreasonable for a prudent tenant to have had recourse to Section21 of the Rent Act even though the uncontradicted evidence of theplaintiff was that the defendant had earlier agreed to pay rent to him;that in any event the plaintiff had not been actually denied the benefitof the monies deposited at the Urban Council as evidenced by P5which is a letter dated 27,04.76 written by the Special Commissionerof the Urban Council requesting the plaintiff to call over at the officeand receive the. rent. Appellant’s counsel submitted that in terms ofSection 21 (3)(c) of the Rent Act such payment is not valid as thearrears had not been tendered to the landlord before the summonsreturnable date.
However, in the opinion of the Court of Appeal the decisive point isthat once it is established that the payment of rent has been inaccordance with Section 21(1) of the Rent Act, then Section 21(2)provides that such payment “shall be deemed to be a paymentreceived on that day by the landlord of the premises from the tenantthereof”. The court therefore held that the payments of rent made tothe Urban Council attracted the benefit of Section 21 of the Rent Act;and that this Section should pot be construed in an unduly narrowand technical manner. I am in agreement with this finding.
Mr. A.C. Gooneratne, for the defendant-respondent stressed that tobe entitled to the benefit or Section 21 all that has to be establishedis that paymeni was made to the Urban Council. If this is done, then
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such payment is deemed to be a payment received by the landlordon that day; the forms used for payment of rent are not prescribed bylaw and that the particulars entered in the forms as to the personmaking the payment and the pro forma payment in favour of thedeceased father of the tenant would not, in the circumstances of thiscase, affect the validity of the payment under Section 21 of the RentAct. I am in agreement with this submission.
For the above reasons, I affirm the judgment of the Court of Appealand dismiss the appeal. The plaintiff-appellant is directed to payRs.735/- as costs of this appeal.
BANDARANAYAKE, J. – I agree.
KULATUNGA, J. – I agree.
Appeal dismissed.