060-NLR-NLR-V-62-H.-EBHRAMJEE-Appellant-and-S.-SIMON-SINGHO-Respondent.pdf
PTTLLE, J.—Ebhramjee v. Simon Singho
261
1960Present : Pulle, J.H. EDHRAMJEE, Appellant, and S. SIMON SINGHO, Respondent
S. C. 148—G. R. Colombo, 67822
Rent Restriction Act, No. 20 of 1948—Section 13 (1) (a)Tenant in arrears of rent—•
Action brought for recovery of rent only—Can an action for ejectment be main-tained subsequently ?—Civil Procedure Code, s. 34 {!).
Where a tenant in arrears of rent for more than one month after it becamedue, as contemplated in section 13 (1) (a) of the Rent Restriction Act, is givennotice to quit and sued for arrears of rent only but not for ejectment, he cannotbe .subsequently sued for ejectment in a separate action based on the samenotice to quit. In such a case section 34 (1) of the Civil Procedure Code operatesas a bar to the maintenance of the action for ejectment.
Appeal from a judgment of the Court of Requests, Colombo.
S. Sharvananda, for plantiff-appellant.
D. R. P. GoonetiUeke, for defendant-respondent.
Cur. adv. vult.
June 10, 1960. Pulle, J.—
This is an appeal by a landlord from a decree dismissing an actioninstituted by him to have his tenant ejected from premises No. 146, DamStreet, Colombo, and to recover damages. The tenant resisted theclaim on various grounds of which one was that in a previous action,33. C. Colombo case No. 42400 (M), for the recovery of rent the landlordhad failed to include a claim for ejectment and that, therefore, section34 (1) of the Civil Procedure Code operated as a bar to maintaining theaction. The learned Commissioner of Requests tried two preliminaryissues in regard to the effect of section 34 and, having answered themin favour of the tenant, he dismissed the action with costs.
In D. C. Colombo case No. 42400 (M) which was filed on 26th October,1957, the landlord pleaded a contract of tenancy and the fact that thetenant had failed to pay Rs. 710 as rent for the eight months from1st February to 30th September, 1957, and prayed for judgmentfor that amount. The tenant did not contest the claim – and on20th December, 1957, a decree was entered against him. The plaintin the present action was filed on 29th October, 1957. It stated that thetenant had failed “ to pay the rent due for the month of February, 1957,and thereafter and is in arrears of rent for more than one month afterthe same had become due as contemplated in section 13 (1) (a) of theRent Restriction Act, No. 29 of 1948”. It further stated that D. C-Colombo case No. 42400 (M) had been filed for the recovery of Rs. 710as rent for the period m question and that on 30th March, 1957, the
3?TjLLE, J.—Bbhramjee v. Simon Singhc
262
landlord gave notice to the tenant to quit the premises on 30th Aprilnext because he- was in arrears of rent. The notice would have beenof no effect in law had the tenant not been in arrears of rent.
The submission on behalf of the landlord is that section 34 (1) of theCode has no application because the claim for rent and the claim forejectment were based on distinct causes of action. Reliance was placedon the case of Subray a Chetti and another v. Hathnavelu Chetti1 in whichon a tenancy agreement two actions were brought. The first was forpossession of the house which was the subject-matter of the agreement.The landlord obtained a decree for possession. Thereafter he instituteda suit for rent and it was held that the section of the Indian code cor-responding to section 34 did not bar this suit. The reason for thedecision is expressed as follows :—
“ The cause of action for any portion of the rent is complete whenthat part of the rent is due and is unpaid ; the cause of action forrecovery of the property does not arise until the tenancy is determined,—the one is founded on the obligation to pay for the occupation of thepremises, the other on an obligation to withdraw from occupation.The whole claim which the plaintiff is entitled to make in respect of thelatter cause of action seems to be a claim to be put in .possession of theproperty. He is entitled, no doubt, to join in the same action for rentand damages (section 44 (a) and (6)), but those claims are parts ofseparate causes of action and are not parts of the claim in respect of thecause of action for recovery of possession. They are unconnectedwith the obligation to surrender.”
With all respect I do not find myself able to adopt this interpretation.In each case the landlord had to plead a breach of the tenancy agreementand chose to file separate actions for separate breaches of the agreement.If this reasoning is correct I do not see why a landlord to whom rent ispayable monthly should not be allowed, after arrears hay.e accumu-lated, to file as many actions as there were months at the end of each ofwhich the payment of rent fell due. Yet the case cited takes the viewthat that would not be permissible because the cause of action would be“non-payment of rent”. On this point I prefer the reasoning in Van-derpoorten v. Peiris 2 in which the identity of causes of action in two se-parate suits was judged by the fact that the claims stemmed from breachesof covenants in a lease. It would indeed be oppressive to a party to asingle contract, against whom breaches of its terms are alleged at anygiven time, to be vexed with a. multiplicity of cases. Although learnedcounsel for the landlord cited in support of his argument the case ofKasinath Ramachandra v. Nathoo Keshawz the judgment in that caseappears to favour the view which I have formed.
1 1. L. R. 32 Madras 330.2 {193S) 39 N. L. R. 5..
8 A. 1. R. 1914 Bombay 130.
PiyaserKt v. S. I. Police, Crimes, Marcuinna
263
Strong reliance was also placed on the case of JBrunsden v. Humphrey1in which it was held that a single act of negligence causing damage toplaintiff’s cab and injury to his person gave rise to two distinct causesof action. The judgment of the Court of Appeal reveals sharp differencesof opinion on the point. The basis of the decision was that the plaintiffhad suffered injury in respect of two absolute and independent rights,namely, absolute right for security for his person and an absolute rightto the enjoyment of his goods and that (< the same evidence would nothave supported an action for trespass to the person and an action for thetrespass to the goods”. I am certainly not prepared on the authorityof this case to hold that substantially different evidence was needed tosupport the respective claims made in the District Court and in the caseunder appeal. The provisions of the Rent Restriction Act, No. 29 of194S, are applicable to the premises in question. It was essential toobtaining relief in either case for the landlord to prove that the tenant wasin arrears of rent, with this difference that in one case the quantum hadto be proved and in the other the period during which the tenant hadfailed to pay rent when it became due. On the averments in the plaintfiled in the District Court, judgment for ejectment, had it been claimed,would have followed automatically on the claim for rent being established.Having intentionally relinquished his claim to ejectment, the landlordshould not be allowed to pursue that in separate proceedings. In myopinion the appeal fails and should be dismissed with costs.
Appeal dismissed.