033-NLR-NLR-V-50-GEORGE-Appellant-and-RICHARD-Respondent.pdf
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George v. Richard
1948Present: Nagalingam J.GEORGE, Appellant, and RICHARD, RespondentS. C. 154—C. R. Panadure, 11,903Rent Restriction Ordinance—Rent in arrears—Tendered before action filed—Landlord cannot sue—Ordinance No. 60 of 1942, Section 8 {a).
An action for ejectment is not maintainable under proviso (a) tosection 8 of the Rent Restriction Ordinance unless the rent has been inarrear at the date of the institution of the action for one month after ithas become due. Where, therefore, such arrears are tendered before thecommencement of proceedings the landlord is not entitled to maintainan action.
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-A.PPEA1L. from a judgment of the Commissioner of Requests,Panadure.
H. W. Jayetoardene, for defendant, appellant.
P. J. KuruJculasuriya, for plaintiff, respondent.
Cur. adv. wit.
December 9, 1948. Nagalingam J.—
This is a landlord’s action against the tenant primarily for ejectment•of the latter from the premises let. The plaintiff let the premises describedin the plaint to the defendant on the terms of a monthly tenancy at arental of Rs. 10. The defendant according to the plaintiff made defaultin the payment of the rents for the months of January to June, 1947,although neither the pleadings nor the proceedings in the lower Courtdisclose the agreement between the parties as to when the rent waspayable. On June 19, 1947, the plaintiff instituted this action alleging,inter alia, that the rent for the month of June as well had fallen intoarrears. The defendant did not dispute this allegation, but pleadedthat he had tendered the rent for the month of June on June 10, 1947.Under the Roman-Dutch law the rent of any one month would be payableonly at the expiry of the month in the case of a monthly tenancy ; butin view of the plea of the defendant himself I assume that there was anagreement between the parties that the rent should be paid at thebeginning of each month.
When the defendant was in arrears with his rent for the months ofJanuary to April, 1947, the plaintiff caused his Proctor to send a letter ofdemand dated April 24, 1947, claiming the arrears and also giving noticeto the defendant terminating his tenancy at the end of May, 1947. Onreceipt of this demand the defendant remitted to the plaintiff’s proctorby money order the sum claimed, but the plaintiff’s proctor on instruc-tions from his client declined to accept it. Notwithstanding this refusal,the defendant on June 10, 1947, remitted by another money order therents for the months of May and June as well but this money order toowas returned to him by the plaintiff’s proctor.
Thereafter the plaintiff commenced this action for arrears of rent,ejectment and damages for overholding. The defendant resists theclaim for ejectment by calling to his aid the provisions of section 8 of theRent Restriction Ordinance, No. 60 of 1942. The Rent RestrictionOrdinance does not purport to interfere with the ordinary contractualrights as between landlord and tenant. The Ordinance does not preventa landlord' from giving notice terminating the tenancy and a notice dueand proper in form in fact terminates the tenancy of the tenant. Itcannot be said that after such termination the ordinary relationship oflandlord and tenant continues to subsist between them. The occupationof a tenant thereafter is without the consent of the landlord. The effectof the Rent Restriction Ordinance, however, is to bar a landlord from
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instituting an action for ejectment on the footing of an overholdingby the tenant unless the landlord can make out a case falling within theprovisions of section 8 of the Ordinance. If the landlord is unable tomake out such a case the tenant acquires a right to continue in occupationpaying the statutory rent and in law his position may best be describedas a statutory tenant, if one may adopt the English nomenclature adoptedin similar circumstances.
The main provision of section 8 of the Ordinance prevents the institutionof an action for the ejectment of the tenant unless the assessment boardhas authorized such institution. In the present case no such authoriza-tion is relied upon by the landlord, but proviso (a) to the section is said toprovide the foundation for the action. The question for decision, there-fore, is whether the present case is one where “ rent has been in arrear forone month after it has become due.” The rents for the months of Januaryto May may be said to have remained unpaid for over a month after theyhad fallen due on the basis of course, that the rent of any one monthwas payable at the commencement of that month. But the point iswhether the rent “ has been in arrear ” within the meaning of the term asused in the proviso. The words “ has been ” denote a continuous factthat is to say a fact continuing to subsist up to the occurrence of a cer-tain event or the performance of some act. Those words have receivedjudicial interpretation in this sense. Ex parte Kinning, 16, L.J., Q.B.,257 and Re Storie, 2 D.G.E. and J. 529. Now, what is the event or actin relation to which the rent should continue to be in arrears ? In thecontext it seems to me that the event or act contemplated is theinstitution of the action and the proviso should be construed as meaningthat rent should have been in arrear at the date of institution of action forone month after it has become due. This construction would becomemanifest if the proviso is re-drafted making use of the phraseology of themain provision ; it would then rim so far as is material to the presentdiscussion as follows :—“ No action for the ejectment of the tenantshall be instituted unless rent has been in arrear for one month after ithas become due;” that is to say the arrears must exist at the date ofinstitution of action.
The contention on behalf of the appellant is that if at any time thetenant was in arrear with his rent for over one month, then the rightvests in him under this proviso to institute action and if this argument issound the subsequent payment of rent by the tenant cannot take awayfrom the landlord his right to institute an action for ejectment. Onewould have expected in those circumstances the plaintiff to have acceptedpayment and instituted the action. But the plaintiff on the other handdeliberately declined to receive the payments tendered ; I have littledoubt that he did so because whatever position he may have taken laterat the trial, he or rather his legal advisers were of opinion at the date ofinstitution of action that it would be essential to aver in the plaint atleast that the defendant was in arrear with his rent. As a matter of fact,the plaint alleges that the defendant has failed and neglected to pay to theplaintiff (the arrears of rent) though thereto often demanded,—anallegation, to put it mildly, not quite true to facts. Why then did the
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plaintiff make a mis-statement of fact in the plaint ? No explanationhas been given, but the answer is obvious and reveals clearly the view held,by the plaintiff’s lawyers themselves.
The construction I have placed on this proviso is supported by theview taken in the English Courts in regard to a similar provision in theRent and Mortgage Interest Restrictions (Amendment) Act 1933 (23 and24) George the Fifth, Chapter 32, Schedule 1 Clause (a) which empowersthe Court to direct delivery of possession to the landlord, “ if any rentlawfully due from the tenant has not been paid.” Though the languageof our enactment is not identical -with that of the English provision astriking correspondence can be noticed if the term “ has been in arrear ,ris paraphrased as “ has not been paid.”
In the case of Bird v. Eildage1, the facts were that the landlordcommenced his action in ejectment against the tenant after refusing toaccept the arrears of rent tendered to him before commencement of suit -the Court of Appeal held that as the tender of rent had been made before*the commencement of proceedings such tender prevented rent being-lawfully due and that the landlord was not therefore entitled to maintainthe action. Although the words “ lawfully due ” do not find a place in ourenactment, yet the notion underlying these words is implicit under ourlaw as well. With regard to the meaning to be attached to these words-Cohen J. said,
“ In our view, rent is not lawfully due unless it can be recovered by-
process at law.”
Now a landlord under our law too cannot institute an action forrecovery of rent unless it remains unpaid at date of institution of action.If rent is in arrear, a cause of action accrues to the landlord to sue for itbut if before he files or can file action, rent is tendered or paid to him,,the cause of action is extinguished, and with it the right to sue. Henceat the date of institution of action the plaintiff must be in a positionto show that not only had a cause of action accrued to him prior to-institution of action but that the cause of action continued to subsist-even at the date of institution. In the present case therefore, it isessential for the plaintiff to show that not only had the defendant allowedthe rents to remain unpaid for over a month as they fell due, but that,in fact the rents remained so unpaid even at date of institution of action.The plaintiff is clearly unable to establish the second requirement. The*rents that were in arrears were tendered to him before institution ofaction and he wrongfully refused to accept them. The plaintiff mustin those circumstances be deemed to have been paid the rents on the*dates they were tendered and therefore it must follow that the tenantwas not in arrear with his rent. The plaintiff cannot therefore availhimself of proviso (a). In this view of the matter the plaintiff’s actionfails. The appeal is therefore allowed and the plaintiff’s action dismissed,with costs in both Courts.
Appeal allowed_
(1947) 2 All EM. 7.