161-NLR-NLR-V-55-G.H.D.-WIJESEKERA-Appellant-and-K.-KANAPATHIPILLAI-Respondent.pdf
PUliLE J.—Wijesekera v. KanapathipiUai
BiS
1954Present: Pulle J.
G. H. D. WUESEKERA, Appellant, and K. KANAPATHIPILLAI,
Respondent
S. O? 108—G. R. Gampola, 10,228
Rent Restriction Ordinance, No. 60 of 1942—Section 9-—Payments in excess ofauthorised rent—Recovery thereof—Computation of prescriptive period."
Action was instituted on June 17, 1952, against a tenant for ejectment onthe ground that he was in arrears of rent. The tenant admitted that nopaynaentof rent was made by hi m after October 31, 1949, but pleaded that he was not inarrears of rent if credit was given to him-for payments made regularly in excessof the authorised rent from the commencement of the tenancy on January 1,1944, up to October 31, 1949.
Held, t^t under section 9 of the Rent Restriction Ordinance, No. 60 Of 1942,the tenant was entitled to credit for overpayments only for the prescriptive-period of three years reckoned from October 31, 1949.
^^.i’PEAL from a judgment of the Court of Requests, Gampola.
* *
Ivor Misso, with A. G. B. Fernando, for the defendant appellant.
H. IF. Tambiah, -with K. Rajaratnam and T. Velupillai, for theplaintiff respondent.
Cur. adv. vult.
July 19, 1954. Pulle J.—
The appellant in this case is the tenant of a house against whom thelandlord filed an action for ejectment on the 17th June, 1952, on theground that he was in arrears of rent from November, 1949. It wascommon ground that no payments on account of rent were made after31st October, 1949, and that prior to that date, naeiely, from thecommencement of the tenancy on the 1st January, 1944, up to 31stOctober, 1949, the°tenant had regularly made payments in excess of theauthorised rent. If at the date of the institution of the action the
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PUJL.LE J.—-Wiyesekera v. KanapathipiUai
tenant was entitled to credit for the entirety of the overpayments theaction was not maintainable. If, as was argued for the landlord, thetenant could take credit for overpayments only for the prescriptiveperiod of three years reckoned from the 31st October, 1949, then theseoverpayments were not sufficient to meet the whole of the authorisedrents due and payable from 1st November, 1949, to the date of action.The amount was about four months short of the rent due.'
A large part of the excess payments was made during the operation ofthe Rent Restriction Ordinance, No. 60 of 1942, and the enforcementof any rights vested in the tenant by virtue of that Ordinance, whichceased to be in operation on 31st December, 1948—vide section 10 ofthe Amending Ordinance, No. 52 of 1947.—was kept alive by theRent Restriction (Special Provisions) Act, No. 4 of 1949.c
The contention on behalf of the tenant was that the overpaymentin any one month automatically extinguished a part of the rent due forthe following month, even though the tenant, in respect of that followingmonth, paid to the landlord a sum of money in excess of the authorisedrent without making any deduction. The submission on behalf of thelandlord was that if the tenant did not elect to dgduct the excess in theexercise of the right conferred on him by section 9 of the Ordinance,then the only remedy he had was to sue for its recovery and that remedywas not available after a period of three years from the date of paymentof each excess amount.
In my opinion the landlord’s contention is right. There was noautomatic extinguishment of debts because at the end of every monththe tenaiit was the creditor and in each month there came unlawfullyinto the hands of the landlord a sum which represented the differencebetween the rent actually paid and the authorised rent. It was not tillNovember, 1949, that the tenant by his letter D2 purported to exercisethe right of deducting any excess amount paid by him. The tenant havingfailed to sue, the recovery of the amounts which accumulated prior to1st November, 1946, was barred by the Prescription Ordinance.
The appeal fails and is dismissed with costs. If the arrears of rentup to and including Auguet, 1954, and costs are paid on or before the31st August, 1954, writ of ejectment will be stayed till 30th September,
1954.
Appeal dismissed.
FRUITED AT THE GOVERNMENT PRESS, CEYLON.