010-NLR-NLR-V-59-F.-DE-ALWIS-Appellant-and-SIR-E.-A.-L.-WIJEYEWARDENE-Respondent.pdf
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GTJNASEKAR A, J.—de Alms v. ’Wijeyetcardene
Present: Gunasekara, J.-
: F. DE ALAVIS/ Appellant, and SIR E. A. L. •WIJEYEWARDENE, Respondent
– S. C 241—C. R. Colombo, 55,938
Rent Restriction Act, Ro. 29 of 1948—Section 13 (1), proviso (a)—Overpayment ofrent-—Extinguishment of rent due.
For the purpose of computing whether a tenant is in arrenr of rent within themeaning of proviso (a) to section 13 (1) of the Rent Restriction Act, any sum ofmoney overpaid as rent extinguishes pro tanto, by operation of law, the rent asit falls due.
■’ Wijesekera v. Kanapathipillai (1954) 55 N.E.R. 574, distinguished.
j^^-PPEAB from a judgment of the Court of Requests, Colombo.
M. M. Kumarakulasingham, with F. It. Dias, for defendant-appellant.
W. Jayewardene, Q. C., with D. Jl. P. Goonelilleke, for plaintiff-respondent.
Cur. adv. yult.
July 9, 1956.. Gunasekara, J.—
This is an appeal from a decree for the ejectment of the appellantfrom certain premises that had been let to her by the respondent on acontract of monthly tenancy and for the recovery of damages from herfor overholding. At the close of the argument, on the 20th June, Idismissed the appeal with costs and said that I would give my reasonslater. I also directed, with the consent of counsel for the respondent,that a writ of ejectment should not issue until after the lapse of threemonths from that day.
The tenancy had been duly determined on the 31st December, 1954, bya notice given by the respondent to the appellant on the 27tli November,1954, but the premises were premises to which the Rent RestrictionAct, No. 29 of 194S, applied. The question raised by the appealis whether, in terms of section 13 subsection (1) of the Act, the authority-of the Rent Control Board was necessary for the institution of the actionfor ejectment. The learned commissioner of requests has held that suchauthority was not necessary, for the reason that the case fell within eachof the provisos (a) and (d) to that subsection..
In terms of proviso (a) the authority of the Board is not necessarywhere the rent has been in arrear for one month after it has become due.The commissioner holds that the rent for each month was payable by theend of that month and that the rent for the months of August and Sept-ember, 1954, was paid only on the Sth November, 1954, and was thereforein arrear for more than a month after it became due.
GU2CASEKAKA, J.—de At iris v. Wijeyewardene37
Tlie tenancy began in August, 1940, and originally the agreed rentwas Rs. 20 a month. It was raised to Its. 35 a month, from the 1st June,1945,. and again to Rs. 60 a month from the 1st June, 1947. It was re-duced to Rs. 27 a month From the 1st February, 1951, and that was theagreed rent till the determination of the tenancy. It is common groundthat the authorized rent was only Rs. 27 a month from a date earlierthan the 1st February, 1951, and that the respondent had recovered asrent sums in excess of the authorized rent for some time before1 st February, 1951. Theprecise period during which he did so isnot materialto the present question, but according to the respondent himself the totalsum recovered in excess of the authorized rent'was Rs. S25. When hefound that he had been recovering rents in excess of the authorized renthe refunded to the appellant a sum of Rs. 336 and expedited himself withthe balance as the cost of x-epairs effected by him in the years 1949 and1950. It was contended for the appellant that the respondent was notentitled to credit himself with this sum, and therefore there was in hishands a sum of at least Rs. 4S9 recovered by him in excess of the author-ized rent, and that if this sum was taken into account the rent was. notin arrear at the material time.
The learned commissioner holds that under the Act it was the dutyof the landlord to effect repairs. But quite apart from the provisions ofthe Act that was the agreement between the parties in xespect of theperiod 1st June, 1947, to 31st January, 1951. The respondent wastherefore not entitled to credit himself with the sum of Rs. 4S9 as hepurported to do. The learned commissioner holds, however, that theappellant “ is not entitled to set off any excess pajnnents made by herprior to March 1952 ” ; for the reason that " it was only in her answerfiled on 24/3/55 that the tenant pleaded for the fiist time that she wasentitled in law* to continue in occupation without payment of rent untilsuch period as the overpaid rent in the plaintiff’s hands shall have becomeexhausted ” and the claim is therefore prescribed. He cites in supportof this view the judgment of Pulle J. in the case of Wijesekera v. Kana-palhipillai *. The learned counsel for the appellant contends, on theauthority of the decision in Wijemanne ct- Co., Ltd. v. Fernando 2, which isa decision of two judges and is therefore binding on me, that the overpaidamount in the hands of the landlord, “ overpaid a-s rent, and not for anyother purpose, extinguished pro tanto by operation of law, the rent asit fell due ”. In this view of the matter, after January, 1951, the debtin respect of the rent for any month was extinguished as soon as the rentfell due at the end of that month, and every payment made after theend of a month as rent for that month was a payment of a debt that hadalready been extinguished. The reason for the decision in Wijesclcerav. Kanapathipillai appeax-s to be tbat there was hot at any time in thematerial period a debt due from the tenant in respect of rent, and there-fore no occasion for extinguishment of any debt by operation of law.Pulle J. says in his judgment :
“ There was no automatic extinguishment of debts because at theend of every month the tenant was the creditor and in each month
1 {1954) 55 jy. L. R. 575.
{1946) 47 X. R. R. 62.
3S
GUNASEKARA, J.—de A lie is v. 71 ’ijeye wardene
there came unlawfully into the hands of the landlord a sum whichrepresented the difference between the rent actual^ paid and theauthorised rent.”
In the present case each payment purporting to be a pajunent of rentwas made several days (and, more frequently, several weeks) after therent had fallen due. Every pajnnent made after the 31st January,1951, was therefore a payment made after the extinguishment of the debtin payment of which it purported to be made. The sum of Rs. 489,which was in the respondent’s hands on the 31st January, 1951, was morethan enough to pay the rent for the next 18 months, and as a result of theoverpayments subsequent to that day the rent was not in arrear at anytime thereafter.
The appellant has pleaded in her answer that “ there is a substantialsum of overpaid rent in the plaintiff’s hands which she reserves the rightto recover, if necessary, in a separate action in the District Court ofColombo ”. It is contended for the respondent that, having pleadedthat she reserves this right, the appellant cannot have the overpaid Tentset off against the rents that became due after January, 1951. Butthere can be no question of such a set-off, for the overpaid rent thatwas in the appellant’s hands at the time of the termination of the tenancyconsisted of payments made in respect of debts that had already beenextinguished. Although at the end of the tenancy the total of the excesswould, as a result of these payments, have been equal to the overpaidrent that was in the respondent’s hands on the 31st- January, 1951,and not refunded by him, it was nevertheless a sum made up of subse-quent overpayments in a period when the rent was never in arrear.
I agree with the contention that the case does not fall within proviso (a).
I may observe in passing that although the appellant has sought toreserve the right to sue for the recovery of the overpaid rent in the handsof the respondent I do not think that she will find it necessary to insti-tute an action for the purpose. The respondent’s attitude has beenstated quite clearly in his evidence. Having referred to the refund ofRs. 336, he said :
“ If there was anj' more money which I should have refunded to thedefendant 1 would iiave done so. If the court finds that I have torefund any money I will refund it as I am bound to do .”
Under proviso (d) to section 13 (1) of the Act the authority of theBoard is not necessary for the institution of an action for the ejectmentof a tenant in any case where the condition of the premises has, in theopinion of the court, deteriorated owing to acts committed by or to theneglect or default of tho tenant or any person residing or lodging withhim. The demised premises were a dwelling house, and according to thelearned commissioner’s findings of fact, which I see no reason to disturb,substantial damage has been done to the floor upstairs by the acts andby the neglect of the appellant and of persons lodging with her. Thefloor, which was of seasoned jakwood, was scorched over an area of about2' X 2' and-was burnt right through at one place in this area. The
Shah ul Haniccd v. Slfaduni
commissioner holds that this damage was the result of a “ Jaffna hearth ”(a stove which bums firewood) being used at that place over a period ofseveral weeks. According to the appellant herself, though there was akitchen downstairs this stove was used in the sleeping quarters upstairsby the occupants of the house to boil water for their tea and coffee.There were about 12 permanent residents, and in addition to them asmany as 15 to 20 others would lodge there from time to time. Therewere vessels filled with water for their use placed on the floor upstairs,and water constantly leaking and dripping from these vessels over a longperiod of time had soaked into the floor-boards until they were in dangerof decaying as a result. It was contended for the appellant that thesefacts were insufficient to justify the finding that the condition of thepremises had detciiorated. I do not agree. There was a permanentand substantial change for the worse in the condition of the floor-boards.In the learned commissioner’s opinion this change amounted to a deterior-ation of the condition of the dwelling-house. I am unable to say thatthere was no basis for that view.
There appeared to be no sufficient ground for interfering with thelearned commissioner’s finding that the case fell within proviso (d) andthe appeal was therefore dismissed with costs. ,
Apjjeal dismissed.