135-NLR-NLR-V-22-FONSEKA-v.-NAIYAN-ALI.pdf
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Present: De Sampayo J.
FONSEKA v. NAIYAN AL1.
142—C. R. Colorr&p, 72,312.
Landlord and tenant—Notice to quit—Action in ejectment and arrearsof rent—Damages—Receiving rent for period subsequent to date ofaction—Waiver of notice—Failure of cause of action.
Where a landlord gave notice to a tenant to quit on December 31and instituted an action for ejectment and arrears of rent onJanuary 9, but subsequently received rent for January andFebruary without any reservation.—
Held, that the notice must be taken to have been waived, andthat the tenancy continued.
rJ^HE faets appear from the judgment.
Nagalingam* for appellant.
De Zoysa, for respondent.
September 3, 1920. De Sampayo J.—
This appeal involves an interesting point of law. The plaintiffhad hired his house to the defendant at a rental of Rs. 90 permensem payable on or before the 10th of each month. On Novem-ber 30, 1919, he gave notice to the defendant requesting him toquite on or before December 31, 1919.
He brought his action-to eject the defendant for non-compliancewith the notice, and to recover rent for December, and damagesat the rate of Rs. 90 per mensem from January, 1920, until he berestored-to possession. The defendant denied the receipt of th6notice, but the case was finSftjMiispos^d of on the footing that noticewas in fact given to the defendant. But the defendant .further;pleaded that he paid to the plaintiff the rent, not only for December,but also for January and February, and that the plaintiff acceptedthe same and thereby waived the notice. There is no question of'the payment of this rent, for there are three receipts signed andgranted by the plaintiff, each for Rs. 90, as rent of the house inquestion. The Commissioner says he attaches no importance^to the word “ rent ” appearing in the receipt, as the defendantis a Tamil, who is ignorant of English.
But the question is not so much how the defendant views thereceipts, as the sense in which plaintiff, who reads and writesEnglish, used the word “rent." The more noticeable feature.
1920.
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1920.
Ob SAMB4T0J.
Fonselca t>.Ncuyon Ali
however, is that in. etch case payment was stated to be for a parti-cular month. Moreover, in each case payment was made on the10th of each month. It will be remembered that the original termsof hiring was that the rent should be paid on or before the 10th.
I have no doubt that these payments were made for the threemonths in question. The usual result of the acceptance of rent fora period subsequent to the period of notice without any reservationis that the notice is waived and the tenancy continues, but thepeculiarity in this case, which is strongly pressed upon me, is thatthe action was filed on January 9, 1920, and the payments weremade and accepted thereafter.
No specific authority' has been cited to me to show thatacceptance of rent after the action is brought prevents the usual con-sequence of acceptance of rent from arising. All that Mr. deZoysahas urged is that the rights of the parties must be determined as atthe date of the action. I find it difficult to see that that principlebears on the question under consideration. Moreover, although theplaint in the action is dated January 9, 1920, and was presumablyaccepted by Court on that day, the summons was not served onthe defendant till March 9, 1920. Consequently, so far as thedefendant is concerned, the action cannot be said to be pendingbefore that date.
In the meantime he made at least one payment, viz., for January,1920. It does not appear that the plaintiff informed the defendantof the action or accepted the rent conditionally.
In these circumstances, I think the defendant’s plea should haveprevailed, and the action should have been dismissed on the causeof action alleged by the plaintiff.
I set aside the judgment appealed from, and dismiss the plaintiff’saction, with costs of the action and of this appeal.
Ajypeal dismissed.