120-NLR-NLR-V-58-D.-SUPPIAH-Appellant-and-K.-KANDIAH-Respondent.pdf
1957Present:H. N. G. Fernando, J.
SUPPIAH, Appellant, and K. KANjDIAH, Respond*
S. G. 265—G. R. Hatton, 8,134
Rent Restriction Act, No, 29 of 191S—Section 13 (a)—“ Arrears of rent
Where it ha3 been the practice for the landlord to accept rent not in themonth for which rent is payable but once in several months, tho questionwhether the tenant is in arrears of rent within the meaning of section 13 (a)of the Rent Restriction Act must bo considered in terms of that practice.
A
xIPPEAL from a judgment of the Court of Requests, Hatton.
N.Samarakoon, 'with J. G. Thumiratnam, for the defendant-appellant.Siva Rajaralnam, for tho plaintiff-respondent.
March 27, 1957. H. N. G. Fernando, J.—
Tho defendant has been tho tenant of the plaintiff since 1944: on amonthly tenancy. The only question which arises is whether the defen-dant was in arrears of rent for tho month of January, 1956, by reason ofhis failure to pay that rent within one month after it became due. Accord-ing to the plaintiff the rent for January, 1956, became due on the 15th
January. The defence position was that it had been tho practice forthe plaintiff to accept rents not in .the month for which rent was payablebut once in three or four months. The learned Commissioner has foundfrom the ovidenco of books kept by tho plaintiff himself that rent was notpaid on tho due dates but after the rent had accumulated for about two orthree months. The books show that up to the end of the year, 1955,this practice had obtained and even from tho plaintiff’s evidence it seemsfairly clear that it had never been the practice forrent to be paid in anymonth for that month. Before the plaintiff can establish that the rentwas in arrears he had to establish when it became due, and in the face of thedocumentary evidence it is in my view impossible for the plaintiff tocontend that there had been any agreement to pay the rent from monthto month. He attempted to allege that shortly before the alleged defaultnow in question, he had requested the defendant to pay the rent beforethe loth of the month but the vagueness and uncertainty of his evidenceon this point is no doubt tho reason why the Judge does not hold thatsuch a request had been made.
The Commissioner seems to have thought that the oidy question waswhether the indulgence granted by the plaintiff entitles the defendant toclaim that indulgence as of right. It seems to me, however, that thereal question is whether the practice docs not show that there was animplied agreement to pay and accept rents about once in two or threemonths. In my opinion such a practice was established and the tenderof payment in March, 1956, of the rents for January and February, was inaccordance with this practice. The defendant was therefore not inarrears of rent at the time of the notice.
For these reasons I set aside the decree appealed from and dismiss thoplaintiff’s action with costs in both courts.
Ayijieal alloived.