Dias Bandaranayake v. Perera.
1948Present: Basnayake J.
DIAS BANDARANAYAKE, Appellant, and PERERA,Respondent.
S. C.160—C. R. Colombo 3,784.
Landlord and tenant—Notice to quit—Waiver—What constitutes it—Action a.uLerSmall Tenements Ordinance—Withdrawal—Excess of jurisdiction—Res judicata.
Waiver of a notice to quit by a landlord requires some positive act. Failureof proceedings to evict a tenant does not amount to waiver of a notice alreadygiven.
The withdrawal of proceedings under the Small Tenements Ordinance forthe reason that the monthly rental of the premises was in excess of its juris-diction does not operate as res judicata.
-A.PPEAL from, a judgment of the Commissioner of Requests, Colombo.
W. Jayewardene for plaintiff, appellant.
N. Kumarasingham for defendant, respondent.
Cur. adv. vult.
BASNAYAKE J.—Dias Bandaranayake v. Perera.
March 11, 1948. Basyayake J.—
The plaintiff appellant let to the defendant respondent part of premisesbearing assessment No. 66, Modera Street, Mutwal in Colombo, at amonthly rental of Rs. 25. The present action is for ejectment of thedefendant respondent from the said premises, for arrears of rent and fordamages at Its. 26 per mensem from July 1, 1946.
Of the ten issues framed at the trial the following three were tried aspreliminary issued :—
(а)Was the notice to quit referred, to in the plaint the subject matter
of the case No. 2,602 of this court ? ’
(б)Was the said case withdrawn unconditionally by plaintiff 1
If so can plaintiff maintain that action on that said notice to quit *
The learned Commissioner of Bequests answered issues (a) and (6)in the affirmative and issue (c) in the negative. The present appealis from the decision of the learned Commissioner of Requests that therehas been a waiver of the notice given by the plaintiff appellant to thedefendant respondent on May 30, 1946.
The action referred to in issue (a) is an action under the small■Tenements Ordinance which provides for a special procedure for ejectingoverholding tenants of premises to which the Ordinance applies.Although I have examined the proceedings of that action as appearingin the exhibit D1 produced by the defendant respondent I find nothingtherein to indicate that that action was withdrawn. There appears anaffidavit by the tenant stating that the action is not in conformity withthe Small Tenements and the Bent Eestriction Ordinances and askingthat the rule nisi be discharged. The only order one finds in D1 thereafteris a decree which reads .—
“It is ordered and decreed that the Rule Nisi be and the same is
hereby discharged -with costs fixed at Bs. 10.50 and costs of summoning
witnesses, if any ”.
If the averment in the plaint in the present action, which is not deniedby the defendant respondent, that the monthly rent of the premisesin question is Bs. 25 is correct it is clear that the proceedings under theSmall Tenements Ordinance were misconceived, for that Ordinancedoes not apply to premises rented at a sum exceeding twenty Rupeesa month exclusive of rates. I have not been referred to, nor am I awareof any principle of law to the effect that the failure of proceedings toevict a tenant operates as a waiver of the notice given by the landlord.
Waiver is the passing by an occasion to enforce a legal right wherebythe right to enforce the same is lost, (tomlins Law Dictionary Yol. II.).In the case of a contract of tenancy mere lying by is no waiver, theremust be some positive act on the part of the landlord, which act, however,if done, is a waiver in law. A common instance of such an act is receivingrent after the forfeiture of a lease for a period subsequent to the forfeiture..It is settled law that a valid notice to quit cannot be waived by the partygiving it, so as to restore the tenancy determined by it, except by actsor conduct of ooth parties which amount to the creation of a new tenancy.
Diaanayaka v. Yaiawara.
The most recent restatement of this principle is to he found in the case-of Loewenthcd v. Van hcnUen and another 1 .There is no evidence of suchwaiver in this case. Waiver is never presumed. It must be clearly-proved (United Biocope Cafes, Ltd., v Mosely Buildings, Ltd.) 2 and theonus of proof rests on the person who alleges it (Voet Bk. 16.2 para. 3).He must show that the landlord with full knowledge of is right decidedto abandon it, whether expressly or by conduct plainly inconsistentwith an intention to enforce it. (Laws v. Rutherford)'3'.
It is clear from the principles I have stated above that even if theproceedings under the Small Tenements Ordinance had been withdrawnby the landlord’s agent who brought it the withdrawal cannot be regarded,in the present case as a waiver of the landlord’s rights. The fact thatthis action was instituted before the expiration of the month in whichthe order in the case under the Small Tenements Ordinance was madeis a clear indication of the landlord’s intention to enforce his rightsCounsel for the defendant respondent maintained that the plaintiffappellant was precluded by sections 34 and 406 of the Civil ProcedureCode from maintaining the present action. As I have already pointedout the earlier proceedings were not withdrawn and it is therefore un-necessary to deal with this argument. Section 34 of the Civil ProcedureCode does not in my opinion apply to proceedings instituted underenactments such as the Small Tenements Ordinance which provide forspecial remedies. A person taking advantage of such an enactment isrequired when proceeding thereunder to conform to the procedure andadopt the forms therein preseriDed. He is not free to do what section.34 of the Civil Procedure Code enjoins in regard to actions in general.He is confined by the terms of the Statute whose aid he is invoking andis not entitled to bring in matters which do not fall within the scopeof the enactment. As I have indicated above proceedings in ejectmentcannot be brought under the Small Tenements Ordinance in respectof a house whose rent is over Rs. 20 a month exclusive of rates.
The appeal is allowed with costs and the case is remitted to the learnedCommissioner in order that the remaining issues may be tried.