Da id Appuhamy v. Sub^amaniam
Present: Pulle J.E. DAVID APPUHAMY, Appellant, and K. SUBRAMA1STIAM,RespondentS. C. 46—C. R. Gampaha, 5,446
Sent Sestriction Act—Deposit held by landlord—Sight of tenant to set off monthly rentagainst the deposit.
Where a monthly tenant deposits a sum of money with the landlord on the agree-ment that it is to be held by the landlord and paid back to the tenant whenthe premises are handed over to him, it is not open to the tenant to setoff the rent, as it falls due each month, against the deposit held by the landlord.If he does so set off, he is liable to be held to be in arrears of rent.
PULI/E J.—David A.ppuhamy v. Subramaniam
j^LPPEAX, from a judgment
H. W. Jayewardene, with,appellant.
Frederick W. Obeyesekere,respondent.
of the Court of Requests, Gampaha.
R. P. Goonetilleke, for the plaintiff
with Felix Dias, for the defendant-Cur. adv. wit.
November 23, 1953. Ptjlle J.—
The appellant in this ease is the landlord who sought to eject histenant on the ground that he required the premises for the purposesof his trade and business and on the further ground that the tenant wasin arrears of rent. The landlord failed before the Commissioner on bothgrounds and the only question which has to be decided in this appeal iswhether the decision that the tenant was not in arrears of rent was wrongin law.
The premises were taken on rent in 1947 at a monthly rental of Rs. 45.The tenant paid to the landlord two months’ rent in advance and alsodeposited a sum of Rs. 500 on the agreement that it was to be held bythe landlord and paid back to the tenant when the premises are handedover to him.
The present action was instituted on the 21st April, 1952. The Com-missioner having found on the evidence that the tenant had paid rent,up to the end of April, 1951, proceeded to hold that he was not in arrearsbecause the advance for two months together with the deposit of Rs. 500was well within the sum required to liquidate the rent due from 1st May,1951, up to date of action.
Leaving aside for the moment that the tenant, in an answer filed byhim in person, admitted that he was in arrears, it seems to me that theCommissioner was wrong in setting off the rent as it fell due each monthafter 30th April, 1951, against the deposit held by the landlord. Therewas no extinguishment of the obligation to pay rent as it fell duS becausethe holding of the deposit by the landlord to be returned in terms of thetenancy agreement did not constitute a debt which could be set offagainst the rent.
The decree appealed from is set aside and the case will go back for adecree of ejectment to be entered up against the tenant^ writ not to issuetill 31st December, 1953. The decree will also embody the amount ofdamages, if any, that the tenant is liable to pay till 31st December,
The landlord will be entitled to the costs of appeal but each party willbear his own costs in the court below.