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1(88 .Present: Dalton J.
BE■ SILVA et al. v. PEBEBA.
26—C. R. Colombo, 37,614.
Landlord .and tenant—Increase of rent-tenant declines to comply—*Claim by landlord.
Where a landlord gave notice to his tenant increasing the rent andtihe tenant declined to pay the proposed increase of rent,—
Held, that the landlord was not entitled to claim the enhanced rent,unless the original contract provided for such a variation of itsterms.
PPEAL irom a judgment oi the Commissioner of Bequests,Colombo.
Thiagalingatn (with R. 8. 8. Goonewardene), for defendant,
Garvin, for plaintiffs, respondent.
March 28, 1928. Dalton J.—
The defendant (appellant) is a monthly tenant of premisesdescribed as 12b, Gas Works street, Colombo. The plaintiffs areco-owners of an undivided fialf share in these premises. The totalmonthly rental is Bs. 60, half of which, by arrangement, has beenpaid by the tenant to the plaintiffs, and the remaining half to theother co-owners. On April 27, 1927, plaintiffs wrote the followingletter to the defendant increasing their share of the rent from Bs. 30to Bs. 42.50:—•
Colombo, April 27, 1927.
W. William Perera,
No. 12b, Gas Works Street,
Under instructions horn Messrs. W. A de' Alwis, P. E. de Silva, andW. D. 3. Peiris of Mntwal, I write to give you notice to pay my clientsrent at the enhanced rate of Bs. 42.60 per month for their half share
of rent of house No. 12b, Gas WorkB Street, from June 1, 1927, and Bs. 2.60being fee for this letter of demand.
(Sgd.) A. C. M. A. Cadbr. .
The defendant declined to comply with the request. Nothingfurther appears to have been done thereafter by either party untilJuly 15, when plaintiffs launched these proceedings to recover thesum of Bs. 42.50 rent alleged to be due for the month of June, interms of the letter set out above. The defendant, amongst otherthings, pleaded that he had effected various improvements to thevalue of Bs. 550 under an agreement between the parties not toraise the rent for five years, and stated he was willing to pay the
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enhanced rate if plaintiffs paid, the sum of Rs» 275 being half shareof the value of the improvements. That agreement was not,however, reduced to writing. He further offered, I understand, .topay the sum of Rs. 30 but this was refused.
It is not necessary further for me to deal with the argumentsamftig out of the plea of misjoinder of parties and onuses of action.The only issue that I need deal with on this appeal is No. 2 whichis conclusive of the matter, whether the defendant is liable to payplaintiffs at the enhanced rate. On the basis that the amountclaimed appears to be reasonable the learned Commissioner hasanswered it in favour of the plaintiffs. I am unable to agree thathis decision is correct.
The relations. between the parties are governed by the agreementbetween them. The tenant agrees to pay and the plaintiffs agreeto accept a certain rent. The latter have no more right to enhanceit than the former has to reduce it. This proposition has beenadequately set out by Wille in his Landlord and Tenant in southAfrica at page 55. The rent may be enhanced or reduced by thesame method by which the original rent was fixed, namely, bymutual agreement between the parties. If the original contractprovides for such variation, then suoh variation may be made interms of the contract. In the same way each party, under the; terms of the contract, may terminate the contract by legal noticeto do so. There is no such notice here, what has been done beingan • attempt by one party to vary the terms of the contract.Defendant refused to agree to that variation; thereupon this actionis brought to enforce it. It is urged that the judgment of Pereira J.,v in Abdul Gaffor v. Mohamed 1 is an authority which supports theaction of the plaintiffs.
All the facts are not set out m that judgment, but it does appearto have been a case of a monthly tenancy, and further that thelandlord gave the tenant notice on December 28 increasing therent as from January 1. It was contended for the landlord thatthat was sufficient notice to render the tenant liable to pay theincreased rent, not as from January 1 but from February 1. Thelearned Judge disagreed with the contention. In the course of hisjudgment he goes on to state that the notice was bad for the reasonthat the time allowed was not sufficient, and be adds that a noticeincreasing the rent means that the tenant should either pay at theincreased rent or quit the house.
I respectfully concur in the conclusion come to by the learnedJudge, but I am unable to agree vwith his latter dictum whichappears to have been unnecessary for the purpose of deciding thecase, on the grounds that I have already set out. It does happen^in practice on occasions that a demand for an increased rent is the
1 26 AT. L. B. 383.
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commencement of a fresh contract between the parties, the demandopening the negotiations and the increased amount asked forsometimes being eventually agreed upon by the parties in wholeand sometimes in part only, as the rent thereafter payable by thetenant.
No authority has been cited to support this dictum in the judg-ment. Mr. Garvin has referred me to the learned Judge's Laws ofCeylon (p. 675) where there appears the following paragraph: —
" As to increase of rent by notice, it has been held that the rent for use and occupation during the term the tenant overheldis not to be computed at the old rent, but is to be assessedat the fair value the use and occupation are worth, andthat the increased rent mentioned by the landlord in hisnotice formed fair material on which to assess the rentfor U6e and occupation."
Here it is first of all clew that the learned author is dealing with atenant who is holding over. The present defendant is admittedlynot in that position. Secondly, if one examine the authoritiescited in,support of this paragraph, it is clear that the tenant had beengiven proper notice to quit the tenancy under the agreement beingduly terminated. In Jacobs v. Ebert 1 the tenant was given legalnotice to quit, the notice adding that, in the event of his continuingthe tenancy at the expiration of the notice, he should pay anincreased rent of Rs. 50. On receipt of that, the tenant neitherexpressed assent or dissent to pay the increased rent but continuedto occupy the premises after the termination of his tenancy underthe original agreement. It was either therefore a case of his havingassented to take the premises at the enhanced rent, or of being inthe position of a tenant holding over after the termination of histerm. As Voet points out (Voet XIX. 2f 9, and 10) in dealing withthe subject of the tacit renewal of leases, every tenant who holdsover at the expiry of the original contract is considered to haverenewed his tenancy upon so far as may be (and stress must be laidupon these words) the same terms as the original hiring. This doesnot appear to differ materially from the English law relied upon byClarence J., as laid down in Mayor of Thetford v. Tyler* althoughit does not appear to me clear that English law is applicable.
The decision of Clarence J. was approved of however in Camie v,Muncherjee,* which case in no way assists plaintiffs in their claimhere, the facts being entirely different.
Under the circumstances I am satisfied that the notice of theplaintiffs here to enhance the x'ent not being accepted by thedefendant was of no validity (see Cardinal & Go's Trustees v.Miller4) as against him. There has been no termination of the
16 S.G.G.70.*15 L.J.Q.B.33.
3 0 S. C. G. 100.4 3 Scarlet Reports 45.
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tenancy, and the defendant is not liable for any one-sided variationmade by the plaintiffs in the way of enhanced rent contrary to theterms of the agreement between the parties. The second issueshould therefore have been answered in favour of the defendant.Plaintiffs would appear to be entitled to Its. 30 but have refused it.It has not been paid into Court, but they raise no question on thatground. Presumably defendant is still ready to pay it.
The appeal must therefore be allowed and judgment entereddismissing plaintiffs’ claim with costs in both Courts.
DE SILVA et al. v. PERERA