016-SLLR-SLLR-2003-V-2-DONDENU-v.-EARNEST-PERERA.pdf
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Dondenu v Earnest Perera (Weerasuriya, J.)
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DONDENU
v
EARNEST PERERA
COURT OF APPEALWEERASURIYA, J. (P/CA) ANDBALAPATABENDI, J.
A NO. 956/92 (F)
C. NEGOMBO 1344/REMARCH 8,15 AND 18, 2002
Rent Act, No. 7 of 1972 – Tenant convicted of using premises for illegal pur-pose – Condonation – Waiver – Will mere delay amount to waiver?
Action was instituted to evict the defendant-respondent from the premises inquestion on the ground that he has been convicted of using the premises foran illegal purpose.
The defendant-respondent contended that there was condonation of theground for ejectment based on the illegal conviction.
The trial judge dismissed the action.
Held:
The defendant-respondent was convicted on his own plea for sale ofbeer and exhibition of beer for sale on 28.1.1980. The plaintiff-appellanthaving known this fact renewed the lease for another year from1.6.1980 to 1,7.1981. Thereafter it was extended upto 2.6.1983. Noticeto quit was sent on 25.2.1985.
The conduct of the plaintiff-appellant amounts to a waiver of his statu-tory rights to forfeit the tenancy.
Waiver is the voluntary abandonment with full knowledge of the rele-vant facts of a right or benefit. Condonation is a variant of the termwaiver and amounts to complete forgiveness of a wrong of which all thematerial facts are known to the innocent party on condition that thewrong will not be continued.
Therefore the failure to forfeit the tenancy is not mere delay, butamounted to a conscious and deliberate act on the part of the plaintiff-appellant to renew the lease agreement in spite of the conviction forusing the premises for an illegal purpose.
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APPEAL from the judgment of the District Court of Negombo.
Case referred to:
1. Fernando v. Samaraweera 52 NLR 278.
M.C. Jayaratne with T.C. Weerasinghe for substituted plaintiff-appellant.
Anil Silva for defendant-respondent
Cur.adv.vult.
April 5, 2002
WEERASURIYA, J. (P/CA))
The deceased plaintiff instituted this action against the defen-dant-respondent seeking his ejectment from the premises moreful- 01ly described in the schedule to the plaint on the ground that he hasbeen convicted of using the premises for an illegal purpose. Thedefendant-respondent whilst denying averments in the plaint,prayed for dismissal of the action. This case proceeded to trial on20 issues and the learned District Judge by his judgment dated19.02.1992, dismissed the action. The present appeal is againstthe aforesaid judgment.
At the hearing of this appeal, learned Counsel for the plain-tiff-appellant contended that the learned District Judge has misdi- 10rected himself in holding –
that the notice to quit was bad; and
that the plaintiff-appellant had waived his right to forfeitthe tenancy arising from the conviction of the defen-dant-respondent for using the premises for an illegalpurpose.
The plaintiff-appellant based his case for ejectment of thedefendant-respondent on the ground that he was convicted forusing the premises for an illegal purpose. He relied on three con-victions of the defendant-respondent namely:-20
conviction for using the premises for sale of liqour;
conviction for using the premises for exhibiting liqourfor sale; and
conviction for causing hurt to the plaintiff-appellant.
CADondenu v Earnest Perera (Weerasuriya, J.)125
The defendant-respondent on the other hand took up the fol-lowing defences:
that notice to quit was bad; and
that there was condonation of the ground for ejectmentbased on the alleged conviction for using the premisesfor an illegal purpose.
The finding of the District Judge that notice was invalidwas solely on the ground that tenancy has commenced on 2ndJune and the notice sought to terminate the tenancy from 31stMay.
The defendant-respondent produced marked D1 – D7 thelease agreements for the years 1977-1983. The agreement enteredinto on 02.06.1977 (D1) was valid for a period of one year from
to 01.06.1978. However, the agreement entered into on
(D2), stipulated that the said agreement would be validfrom 02.06.1978 – 02.06.1979. Nevertheless, in the agreemententered into on 02.06.1980 (D4), the effective period had been stat-ed as from 01.06.1980 – 01.06.1981. This basis was maintained inthe subsequent agreements. Therefore, it is to be noted that thoughin the 1977 agreement, the period of validity of the lease agreementwas for one year, namely from 02.06.1977-01.06.1978, in the sub-sequent agreements the effective period was from 1st of June to1st of June the following year.
The notice to quit dated 25.02.1985 (P1), required the defen-dant-respondent to leave the premises on or before 31.05.1985.Therefore, it would appear that plaintiff-appellant had intended togive 3 months notice requiring the defendant-respondent to leavethe premises.
Learned counsel for the defendant-respondent contendedthat this notice is defective for the reason that it does not contain acalendar months’ notice to terminate the tenancy.
It is to be emphasized that the ground for ejectment is on thebasis that the defendant-respondent had been convicted for usingthe premises for an illegal purpose. Therefore, one months’ noticeis sufficient to maintain an action on that ground. Since notice P3was intended to give 3 months’ notice there is compliance with the
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requirement to give one calendar months’ notice to terminate thetenancy.
The plaintiff-appellant contended that learned District Judgehas misdirected himself on the question of condonation of the con-duct of the defendant-respondent for having used the premises foran illegal purpose. He has taken the view that the conviction for usingthe premises for sale of liquor and exhibiting liquor for sale took placeon 28.01.1980 and by renewing the contract, to be effective till 1983,amounted to a waiver of his right to forfeit the tenancy.
It is true that the defendant-respondent was convicted on hisown plea for sale of beer and exhibition of beer for sale on
The plaintiff-appellant having known this fact, renewedthe lease for another year from 01.06.1980 to 01.07.1981 (D4).Thereafter, by lease agreements D5, D6 and D7 he renewed thelease to be valid till 02.06.1983. The question in issue is whetherthis conduct of the plaintiff-appellant amounts to a waiver of hisstatutory right to forfeit the tenancy.
Waiver is the voluntary abandonment with full knowledge ofthe relevant facts of a right or benefit. Condonation is a variant ofthe term waiver and amounts to complete forgiveness of a wrong ofwhich all the material facts are known to the innocent party on con-dition that the wrong will not be continued. It is also necessary tostate that mere delay will not amount to waiver. It was held inFernando v Samaraweera 0) that –
“An intention to waive a right or benefit to which a per-son is entitled is never presumed. The presumption isagainst waiver, for though everyone is under our law atliberty to renounce any benefit to which he is entitledthe intention to waive a right or benefit to which a per-son is entitled cannot be lightly inferred, but must clear-ly appear from his words or conduct.”
Therefore, the onus of proof of waiver is on the person whoasserts it.
In the instant case, having known that the defendant-respon-dent was convicted for using the premises for an illegal purpose on
the plaintiff-appellant proceeded to renew the agree-
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Dondenu v Earnest Perera (Weerasuriya, J.)
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ment on 01.06.1980 and thereafter for the years 1981, 1982 and1983. In fact, notice to quit has been sent on 25.02.1985.Therefore, the failure to forfeit the tenancy is not mere delay, but 100amounted to a conscious and deliberate act on the part of the plain-tiff-appellant to renew the lease agreement in spite of the convic-tion for using the premises for an illegal purpose.
Megarry on The RentAcA (Vol.1 Text 11th Edition – page 396)recognizes the concept of waiver as applying to the grounds ofejectment in the following terms.
“In general these grounds for possession appear to besubject to the common taw doctrine relating to thewaiver of non-continuing breaches of covenant if withknowledge of the breach the landlord accepts without 110qualification rent accrued due after the breach."
In Cooper’s South African Law of Landlord and Tenant (1973Edition – page 153) waiver is described as follows:-
“A lessor waives his right to cancel if he manifests hisintention to do so either expressly or by conduct."
Therefore, in the instant case, there is sufficient material tocome to a conclusion that the plaintiff-appellant has waived his statu-tory right to forfeit the tenancy arising from the conviction of thedefendant-respondent for using the premises for an illegal purpose.
In the circumstances, I see no reason to interfere with the 120finding of the District Judge. Therefore, I dismiss this appeal.However, I make no order as to costs.
BALAPATABENDI, J.I agree.
Appeal dismissed