D. WIJESINGHE, Appellant, and THE INCORPORATED COUNCIL OF LEGAL EDUCATION, Respo

074-NLR-NLR-V-65-D.-WIJESINGHE-Appellant-and-THE-INCORPORATED-COUNCIL-OF-LEGAL-EDUCATION-Respo.pdf


364
Wijeoinghe v. The Jneorporcstad OotmoU of Legal Education
Present: Sansoni, J.
WIJESINGHE, Appellant, and THE HSTCORPOBATEDCOUNCIL OF LEGAL EDUCATION, Respondent
S. C. 28 of 1961—G. R. Colombo, 73821 /R. E.
Action instituted by a corporation—Plaint signed only by the proctor representing
the corporation—Sufficiency of such signature—Civil Procedure Code, ss. 24,25, 46 (1), 470—Council of Legal Education Ordinance {Cap. 276).
When a Corporation is represented by a proctor, a plaint filed on behalfof the Corporation would be sufficiently signed as required by section 470of the Civil Procedure Code if it is signed only by the proctor; the plaintneed not be subscribed by anyone else on behalf of the Corporation.
Proctor's appearance for a party—Proxy—Presumption of validity and regularity
attaching to its execution—Proxy given by Council of Legal Education—Shouldone of the attesting 'witnesses be called to prove due execution ?—Burden ofproof—Courts Ordinance {Cap. 6), Second Schedule, Rule 4—EvidenceOrdinance, s. 68.
Once the Court accepts and aots on a proxy filed in favour of a proctor,presumably because no defect appears on the face of the proxy, any partywho desires to question the authority of that proctor has the onus of showingthe want of authority. Accordingly, once the Court accepts and acts on aproxy given to a proctor by the Incorporated Council of Legal Education,when it is plaintiff in an action, the Court is entitled to assume, in the absenceof evidence led to the contrary by the defendant, that the oommon seal ofthe Council was affixed to the prosy after due compliance with the require-ments of Bula 4 of the Second Schedule to the Courts Ordinance, In sucha case it cannot be contended that, under section 66 of the Evidence Ordinance,the plaintiff most cell at least one of the attesting witoeseee to prove theexecution of the proxy.
SANSONI, J.—Wijesinghe v. The Incorporated Council of Legal Education 305
3 ) Landlord and tenant—Premises let by Incorporated Council of Legal Education
Notice to quit sent by Council’s proctor—Validity—Acceptance by landlord'-of rent from overholding tenant—Effect—Acceptance of late payments of rcn£from statutory tenant—Effect—Applicability of equitable principle of promissoryestoppel—Rent Restriction Act, No. 29 of 1948, s. 13 (!) (a).
In an action instituted by the Incorporated Council of Legal educationto have a tenant ejected from certain premises let on a monthly rent, theauthority of the Council’s proctor for having given the tenant notice to quitneed not be proved if his authority to represent the Council in the action isnot questioned.
When a landlord accepts money sent to him as rent, from a tenant whooverholds after receiving a notice to quit, a new contractual tenancy is not-thereby created, unless it can be shown that the parties intended to and in.fact created a new tenancy. If, for example, in every receipt issued it was.stated that the payment was received “ without prejudice to the notice to quitalready given and the cause of action already arisen ”, it is clear that thepayments of rent were not accepted in respect of a new tenancy.
A monthly tenant (the defendant), before he became a statutory tenant,had been paying rent once in two months! After he became a statutorytenant, he could have lawfully relied on the tacit permission given by the–landlord (the plaintiff) to continue to pay in that way. He did pay in that wayuntil June 1954. JBut, from July 1954 the delay in making payments became–longer and longer until there was gross and inexcusable delay just before thepresent action was filed for ejectment of the tenant in terms of section 13 (1) (a)-of the Bent Restriction Act. Moreover, throughout the period of the statutorytenancy, the late payments of rent were accepted by the landlord without,prejudice, which meant that they were not to affect the notice to quit.
Held, that the tenant had clearly failed to perform his obligation as a statutorytenant and was, therefore, liable to be evicted under section 13 (1) (a) of theRent Restriction Act. In such a case, the equitable principle of promissoryestoppel cannot provide the tenant with a defence.
Appeal from a judgment of the Court of Requests, Colombo.
Colvin R. de Silva, with C. G. Weeramantry, D. R. P. QoonetiUeke,and N. S. A. Goonetilleke, for the Defendant-Appellant.
V. Perera, Q.C., with Q. F. Sethukavaler and 8. Nandalochana, forthe Plaintiff-Respondent.
Cur. adv. vuit.
February 19, 1963. Sansoni, J.—
The Plaintiff in this action is The Incorporated Council of LegalEducation and the Defendant is a Proctor. It is common ground thatthe Defendant was a tenant of the Plaintiff prior to October 1952 inrespect of premises No. 250/6, Hulftsdorf Street, on a monthly rent ofRs. 32-08. On 31st October, 1952, Messrs Julius & Creasy, claiming toact on behalf of the Plaintiff, gave the Defendant notice to quit thepremises on or before 31st January, 1953. In that notice they alsostated that the premises were required for the purpose of their clients.In spite of that notice the Defendant continued to occupy the premises-and he is still there.
2*E. 14146 (11/031
3i66 SAiSSONI, J.—Wijeswghe v. 2'he Incorporated OotmoU of Legal Education
This action was filed by Messrs Julius & Greasy as proctors for the'Council on 31st July, 1959, bo have the Defendant ejected from thepremises. It was alleged in the plaint that the rent was in arrear for theperiod -July 1958 to .February 1950 for over one month after it had becomedue within the meaning of proviso (a) to Section 13 (1) of the RentRestriction Act No. 29 of 1948, and that the Plaintiff was thereforeentitled to institute this action for ejectment. It was further allegedin the plaint that on or about 10th February, 1959, the Defendant paida sum of Rs. 192-48 being the rent due for the period 1st July 1958 to31st December 195S, but had not paid the rent for the period fromJanuary 1959 to July 1959. The Plaintiff prayed for ejectment, a sum ofRs. 224-56 as damages for the period January to July 1959, and furtherdamages at Rs. 32 08 for the period from 1st August 1959. No claimwas made under proviso (c) that the premises were required for thepurposes of the business of the landlord.
The Defendant in his original answer pleaded that he was not inarrears of rent as payments had been made according to the practiceaccepted by the parties; and that since the Plaintiff had regularlyaccepted payments in lump sums for several months at a time withoutprotest from the commencement of the tenancy, it was precluded fromstating that the Defendant was in arrears. He also pleaded that thePlaintiff had accepted payments after the notice to quit. In his amendedanswer he pleaded that Messrs. Julius & Creasy had no right to institutethis action as they had not been duly appointed to act for the Council.
At the trial issues were framed covering the points I have mentioned.A fresh proxy was thereafter filed by the Plaintiff’s counsel but theearlier proxy was not withdrawn. The learned Commissioner afterinquiry held that Messrs Julius & Creasy had the right and authorityto institute this action and to act for the Council. After trial on theother issues judgment was given for the Plaintiff as prayed for, and theDefendant has appealed.
For the appellant Mr. de Silva raised four points, viz. (1) the plaintwas bad because it bad not been signed as required by Section 470 ofthe Civil Procedure Code, (2) Messrs Julius & Creasy have not shownthat they were duly appointed to appear for the Council, (3) there is noproof that the notice to quit was given with the authority of theCouncil, (4) the Plaintiff has failed to establish that the rent was inarrear. I shall deal with these points in that order.
The Plaintiff Council is a body corporate created by Chapter 276.The argument was that under Section 470 of the Code the plaint mustbe subscribed on its behalf by a member or other principal officer, andit is not sufficient for the Proctors representing it to subscribe the plaint.The relevant provisions of Section. 470 provide that “ the plaint may be
subscribed on behalf of the Corporation. by any
member, director, secretary, manager or other principal officer thereofwho is able to depoee to the facte of the case ; and in any case in which such.
Ooiporation is represented by a proctor, shall be
subscribed by such proctor.”
SANSON-!, J.—Wijesinghe v. The Incorporated Council of Legal Education 367
Mr. de Silva argued that the earlier part is mandatory even though ithas the word “ may ”, and that the signature of the proctor is only anadditional requirement where the Corporation is represented by a proctor.He relied on The Singer Sewing Machine Go. v. The Sewing MachinesCo. Ltd.1 and Delhi London Bank v. Oldham 2 and argued that Section470 alone applied to Corporations. I ought to say that the Singer SewingMachine Company case does not deal with the question whether a plaintor an answer on behalf of a Corporation represented by a proctor issufficiently subscribed, if it is subscribed by such proctor. It is noteasy to discover the true ratio decidendi of that case, though it does seemto decide that a Corporation cannot take advantage of Section 24 of theCode as to recognised agents. In so far as it seems to hold that Section25 of the Code does not apply to Corporations it has not been followed—seeThe Bank of Ghettinad Ltd. v. Thambiah 3. But even the decision regard-ing Section 24 is hardly satisfactory, because Withers J. in the latterpart of his. judgment has considered what the position would he if thatsection did apply to Corporations. It has certainly been the practicefor pleadings filed on behalf of Corporations who are represented byproctors to be signed only by the proctors, and they are never, as far asI know, subscribed by anyone else on behalf of the Corporation.
Mr. Perera relied on Section 46 (1) of the Code which states that “ everyplaint presented by a proctor on behalf of a plaintiff shall be subscribedby such proctor. In every other case in which a plaint is presented,it shall be subscribed by the plaintiff.” He also cited the case ofCalico Printers Association Ltd. v. A. A. Karim <& Bros.4, which explainedthe Privy Council decision cited by Mir. de Silva. Beaumont C.J.in the Bombay case held that the Indian section correspondingto Section 46 (1) of our Code applied to Companies, and that the earlierPrivy Council decision in the Delhi & London Bank case was decidedon its special facts, which did not bring it within the terms of thatsection. With respect I would follow the judgment of Beaumont C.J.
It seems to me, on reading Section 470, that there can be no donbtthat under the final clause of the Section the plaint in this action wassufficiently signed when it was signed only by the proctors representingthe Council, and that the earlier clause relates only to a case where theCorporation is not represented by a proctor.
There are two proxies in the record, purporting to have been executedby the Council in favour of Messrs. Julius & Creasy. The first proxybears the seal of the Council and alongside it are two signatures whichread M. Tiruchelvam and David E. Maartensz. The second proxy alsohas the seal of the Council, and above and alongside it appear these words“ The said Council hereby ratifies what has been done in its name bythe said Proctors and all steps taken and all acts done by the said
Proctors up to date in this case and in connection with this case
The Common Seal of the Incorporated Council of Legal Education wasaffixed hereto at Colombo this 21st day of June 1960 in pursuance of a
1 (1893) 2 O. L. R. 200.
(1893) 21 Oal., 60, P. 0.
» (1933) 35 N. L. R. 190.
* (1930) A. I. R Bombay, 566.
368 SA2STS0NI, J.—Wijoainghe v. Tho Ineor^pofatsd Oout%o& of Logoi Bducaiion
~ -1^C— ~ 1''■■ —- ——
Resolution passed by the Council and in the presauce of us Membersof the Incorporated Council of Legal Education •who have hereuntosubscribed our names.” There appear two signatures which roodN. K. Choksy and David ®, Maarfcenss.
The argument for the appellant is that evidence should have been ledto satisfy Section 6S of the Evidence Ordinance, by calling at least oneof the attesting witnesses to prove the execution of each proxy, becauseof the provisions of Rule 4 of the Second Schedule to the Courts Ordinance,Cap. 6. That rule provides that the Common Seal of the Council shallnot be affixed to any instrument except in pursuance of a Resolutionpassed by the Council and in the presenoe of two Members who shallattest the document sealed. The argument was that since the rulerequires attestation, a proxy is not proved unless one attesting witnessat least has been called.
Mr. Perera’s reply to this was that there is a presumption of validityand regularity attaching to the execution of the proxies, and anyonewho asserts the contrary must prove it. Further, he argued, the duerepresentation of a party to an action filed by a proctor is a matter whichconcerns the Court, and so long as there is a proxy which is regularon its face, the Court will not call for further proof unless there isevidence which will put the Court upon inquiry.
Now there is evidence that Messrs Julius & Creasy acted for theCouncil in two applications made by the Council to the Rent ControlBoard; that when the notice to quit was sent to the Defendant byMessrs Julius & Creasy on behalf of the Council the Defendant sent a replyto that notice addressed to Messrs Julius & Creasy. Rents were collectedfrom the Defendant by Messrs Pope & Company on behalf of the Counciland receipts were issued by them as Treasurers, and they always actedon instructions given to them by Messrs Julius & Creasy.
But all this apart, there is the all-important fact that the plaint wasfiled along with a proxy in favour of Messrs Julius & Creasy. TheCourt accepted both the plaint and the proxy and ordered that summonsdo issue. When the Court later held an inquiry into the question whetherMessrs Julius & Creasy had the right to represent the Council, not ascrap of evidence was led on behalf of the Defendant to throw doubton the authority of the proctors. It seems to me that once the Courthad accepted and acted on the first proxy filed, presumably becauseno defect appeared on the face of that proxy, any party who desired toquestion the authority of Messrs Julius & Creasy had the onus of showingthe want of authority. The ordinary rule, that a party who wants theCourt to revoke any action, taken by the Court must first satisfy theCourt that such action was wrong, would apply bare. This rule is basedon the presumption ovvniapraeszmuntwr rite et eolenmiter esse acta. Primafacie the position was that the summons had been properly issued bythe Court on the motion of pTOctors who had the right to present theplaint and move for the issue of summons. The Defendant did notproduce any evidence to rebut that position.
SANSONI, J.—Wijesinghe v. The Incorporated, Council of Legal Education 309
This is not a case where a party, who is seeking to produce in evidencea document which requires attestation, is met with an objection that itsexecution must be proved as required by Section 68 of the EvidenceOrdinance. The document in such a case will not be admitted untilproof has been adduced. Here the proxy had already been acceptedby the Court and acted upon. The Court was entitled to assume theauthority of the proctors, as it did, until that authority had beenshown not to exist. A Court cannot function on any other basis.
In my view, the second proxy was not necessary. It is in fullerterms and states expressly what appears by implication in the firstproxy, but that does not mean that the first proxy was defective. Inany case I have already shown why, in my view, the Defendant hadthe burden of showing that it was defective, but he failed to dischargeit.
As I understood Mr. de Silva, the argument was that the authorityof Messrs Julius & Creasy to send the notice to quit had not been proved.As I have already found that they must be regarded as properly repre-senting the Council in this action, this question does not arise. Theobjection has no substance, and the Defendant would know that betterthan anybody else. He was one of several tenants who wrote to theCouncil on receiving notices to quit, in an attempt to get the noticeswithdrawn. No relief was obtained on this letter. Can it be seriouslyargued in these circumstances that this particular notice was notauthorised by the Council ?
The last point raised by Mr. de Silva is based on the followingcircumstances. After the notice to quit dated 31st October 1952 was sentto the Defendant, rent was accepted from time to time by Messrs Pope &Co., on behalf of the Council, and it is urged that a new contractual tenancywas thereby created. In the alternative, it is argued that even thoughpayments of the rent that fell due after the notice to quit were not madepromptly, the Council is estopped from pleading that the rent is in arrear,because it had been the practice to accept payments that were made bythe Defendant once in several months.
Mr. de Silva argued that when a landlord accepts money sent to him asrent from a tenant who overholds after receiving a notice to quit, a newcontractual tenancy is created. He relied on Croft v. Lumley I do notaccept this argument and I need only cite Clarke v. Grant2, which decidedthat acceptance of rent after a notice to quit is different from an acceptan ceof rent after a notice that a forfeiture has been incurred. In the latter caseacceptance of rent operates as a waiver of a breach that gives rise to theforfeiture. But acceptance of rent after expiry of a notice to quit will onlyoperate in favour of the tenant if it can be shown that the parties intended•bo and in fact did create a new tenancy. The question then is, quo animothe rent was received. There can be no question in this case that paymentsof rent after the notice to quit were received on behalf of the Council, butit is equally clear that they were not accepted in respect of a new tenancy,
1 (1855) 5 E.dk B. 648.* (1050) 1 K. B. 104.
370 SANSONI, J.—Wijesinghs u. The Inccrporoiad Council of Legal Education
because in every receipt issued for those payments it -was expressly statedthat the payment was received “ without prejudice to the notice to quitalready given and the cause of action already arisen. ”
The alternative argument was that payments of rent were not regularlymade at any time by the Defendant; consequently the Plaintiff could nottake advantage of a failure to pay rent promptly unless it first gave theDefendant notice to pay promptly in future. This argument raisesquestions of waiver and estoppel, and was based on the South AfricanAppellate Division cases of Oarlick Ltd. v. Phillip1 andMyerson v..Osmond Ltd. 2
It is necessary to consider the facts of those cases. In Oarlick Ltd. v.Phillip there had been leases between the parties, the last of which wasterminated by sis months notice which expired on 30th June 1947. Thetenant then became a statutory tenant from 1st July 1947. The Julyrent should have been paid in advance on let July as stipulated in theleases, but it was not so paid. The question thus arose whether thatcondition had been modified by the coarse of conduct of the parties. TheCourt held that there had been a long continued failure by the lessee topay his rent on the due date, and no objection had been taken to that by thelessor. Therefore the tenant’s obligation to pay in advance was suspendedor modified and he could pay his rent late. The Court also held that thetenant had been led to believe that permission bad been given to pay therent late and the landlord was estopped from denying that such permissionhad been given. Consequently the failure to pay the July rent in time did.not deprive the tenant of the protection afforded by the statute.
In that case there was evidence of a long continued course of conductbetween the parties for the period prior to the statutory tenancy, from whichthe Court drew the inference that the lessee had been led to believe that hecould pay his rent late. We have no such evidence in this case. According-to the evidence led, by letter PI of 2nd August 1952, Messrs Pope & Co.informed the Defendant that the rent for July and August was outstandingand he was asked to settle it. He then sent the rent for those two months-on 6th August. His next payment was on 11th October 1952 when hesent the rent for the months of September and October 1952. No evidencehas been led with regard to any earlier payments, and the notice to quitwas sent on 31st October 1952.
Subsequent to that notice the Defendant made payments of rent at firstonce in two months until 9th June 1954 when he paid the rent for May andJune 1954. Since then the payments ma.de by him were in general long afterthe rent fell due, and from September 1957 the payments were still furtherdelayed. On 24th September 1957 he paid the rent due for the months ofMay, June and July 1957. On 2nd December 1957 he paid the rents forAugust, September and October 1957. On 12th August 1958 he paid therent due for the five months from February to June 1958 ; and on10th February 1959 he paid the rent due for the six months from July toDecember 1958. No further payment was made before this action was
filed on 31st July, 1959.
1 (1949) 1 8. A. 121.
* (1950) 1 S. A. 714.
SANSONI, J.—Wijcainghe v. The Incorporated Council of Legal Education 371
Thus it mil be seen that the Defendant’s observance of his obligationto pay the rent became progressively more lax. In such a situation mustthe landlord warn the tenant that he should pay promptly, or can he withoutwarning sue for ejectment on the ground that the tenant has committeda breach of his statutory obligation not to allow the rent to be in arrearfor more than one month after it fell due ? On this question—and it directlyarises on this appeal—the case of Myerson v. Osmond Ltd. is illuminating.There too the tenant had been in occupation under several leases, the lastof which expired on 31st December 1947. Although paj ment of rentshould have been made in advance on the first of each month as agreed inthe leases, the tenant had frequently defaulted. From 1st January 1948 hebecame a statutory tenant. For the first seven months thereafter he paidthe rent before the 7th of each month. The August rent, however, wa3 notpaid to the lessor till the 6th of September 1958, and an action to eject himwas filed on that ground. The Court ordered ejectment, holding that thetenant had not been misled by the previous conduct of the lessor under theleases in accepting late payments. Such earlier practice as there had beenregarding late payments had been abandoned when the tenant paid therent by the 7th of each month. When he defaulted in respect of theAugust rent, he lost the protection of the statute. Very much in point isthe view expressed by the Court on the latitude to which the lessee, afterhe became a statutory tenant, was entitled. “ At its best for him he wasgiven a tacit permission as from 1948 to pay his rent in advance within thefirst seven days of each month, and no later. As he has failed to continueto perform his duty regarding rent payment within the permitted limitsof variation, he is no longer protected by the Statute against the landlord’sright to claim an order for ejectment. ”
Applying that decision to this case, the most that can be said for theDefendant is that before he became a statutory tenant, on the evidenceon record, he had been paying the rent once in two months. After hebecame a statutory tenant, he could have relied on the tacit permissiongiven by the Plaintiff to continue to pay in that way. He did pay in thatway until June 1954. But from July 1954 the delay in making paymentsbecame longer and longer until there was gross and inexcusable delayjust before this action was filed. The equitable principle of promissoryestoppel cannot in these circumstances provide him with a defence. Thatdefence arises “ where one party is under an existing legal obligation toanother, who has so acted as to lead the former party to believe that thelatter will not enforce that obligation, or not enforce it to its full extentor for the time being, intending the former party to act on that footing, andthe former party has so acted. The latter party may be restrained inequity from enforcing the obligation on any footing inconsistent with thebelief so induced ” : see Beesly v. Hailwood Estates Ltd} which refers toearlier cases dealing with this principle. I do not agree with Mr. de Silva’ssubmission that the defendant was entitled to pay the rent as late as hepleased. He was 5 months and 12 days late in February 1958, and6 months and 10 days late in July 1958—these degrees of lateness had no
1 {I960) 1 W. L. B. 549.
372
TAMBIAH, J.—Mttrugiah v. OutecJwom
parallel in earlier payments. And it should be noted that throughout theperiod of the statutory tenancy all payments of rent were accepted withoutprejudice, which meant that they wore not to affect the notioe to quit.The defendant has cteariy failed to perform hie obligation, as a statutorytenant, and he has thereby lost his immunity from eviction.
For these reasons, the appeal must be dismissed with costs.
Appeal dismissed.