023-NLR-NLR-V-63-H.-J.-ARON-SINGHO-Appellant-and-K.-A.-SAMUEL-SILVA-Respondent.pdf
T. S. FEBNANDO, J.—Aron Singho v. Samuel Silva
137
1981Present :T. S. Fernando, J.
H. J. ARON SINGHO, Appellant, and K. A. SAMUEL. SILVA,
Respondent
S. C. 167—C. R. Colombo, 72682
Rent Restriction Act, No. 29 of 1948, s. 18 (1)—Unregistered notarial lease—Subsequentsale of leased premises—Due registration of deed of sale—Right of lessee tocontinue as tenant.
A lessee can plead the benefit of the Rent Restriction Act where the premisesin question are occupied by him under a notarial lease which has terminated byeffluxion of time.
A sale of certain premises prevailed over an earlier unregistered lease of theproperty by reason of due registration. After he bought the premisesfrom the lessor, the vendee gave notice to quit to the lessee inquiring him todeliver possession of the premises on the expiry of the lease.
Held, that on the expiry of the lease the lessee was entitled to claim theprotection of section 13 (J) of the Rent Restriction Act.
Ar
PEAL from a judgment of the Court of Requests, Colombo.
R. P. Goonetilleke, for the defendant-appellant.
H. W. Jayewardene, Q.C., with B. J. Fernando,for the
plaintiff-respondent.
Cur. adv. vult.
March 29, 1961. T. S. Eeristaistdo, J.—
This action was instituted by the plaintiff claiming the ejectment ofthe defendant from certain premises which have been purchased by himfrom the owners on transfer P.l executed on 18th September 1958. Atthe time of such purchase by the plaintiff the premises were occupied bythe defendant and there is no dispute between the parties that the defen-dant had been placed in occupation by the owners who had executed anotarially attested lease for three years commencing from 1st January1956 to 31st December 1958 and acknowledging the receipt by them ofrent for the premises for the full period of three years in advance. Thislease had at no time been registered, and on the authority of SennaiyaChetty v. Rupesinghe Appuhamy 1 and Singho Appuhamy v. Amaratunge 2the transfer P. 1 prevails over the unregistered lease. The plaintiff,however, through his proctor, about two months' after his purchase,viz. on 14th November 1958, addressed letter D.l to the defendantgiving him “ notice to quit and deliver quiet and peaceful possession ofpremises No. 98 occupied by you on the 31st day of December 1958 onthe expiry of the lease. ” The defendant failed to quit the premises bythe 31st of December 1958 and the present suit resulted.
1 {1885) 7 S. G. C. 111.
* (1922) 1 Times 110.
138
T. S. FERNANDO, J.—Aron Singho v. Samuel Silva
The learned Commissioner of Requests, purporting to apply the decisionof this Court in Hinniappzihamy v. Kumarasingha 1 reached the conclusionthat on the date of purchase by the plaintiff, viz. on 18th September1958, the defendant became a trespasser vis-a-vis the plaintiff. In regardto the letter D. 1, the Commissioner took the view that it was not an indica-tion of a recognition of the unregistered lease but that it went to show thatthe plaintiff was indulgent enough to allow the defendant to remain until31st December 1958 as sudden eviction might work hardship on the latter.If the defendant had in law become a trespasser vis-a-vis the plaintiff,the latter was under no legal obligation to give the defendant any noticeto quit before instituting proceedings in ejectment. De Sampayo J. inthe course of his judgment in Wijesinghe v. Charles 2 observes :—“ It isclear that a purchaser in this connection has two courses open to him whena third party is in possession of the property at the time of the sale : hemay either stand on the strength of the title and sue the third party inejectment, or he may at once bring the action ex empto against his vendorfor failure to implement the sale by delivery of possession. ” In the casebefore me it is obvious that the plaintiff had not elected to proceed againsthis vendor. In that situation how did the plaintiff come to refer to thelease at all in the letter D. 1 ? It was contended on his behalf in the lowerCourt that he was unaware of any lease by the vendor and that it wasunlikely that he would ever have made the purchase had he known of thislease. As against this contention it must be observed that any reasonablepurchaser of residential property could be expected to have addressed hismind to the question of vacant possession of the premises and the impli-cations arising from the operation of the Rent Restriction Act. Aninterpretation of the letter D. 1 must have regard to the probability Ihave referred to above, and I am of opinion that when the plaintiff re-ferred in letter D. 1 expressly to the lease and indicated that possession maybe retained till 31st December 1958 he was recognising the lease grantedby bis vendor. A lessee can plead the benefit of the Rent RestrictionAct where the premises are occupied by him under a notarial lease whichhas terminated by effluxion of time—Guneratne v. Thelenis 3. In view ofthe opinion which I have reached in regard to the interpretation of theletter D. 1, the plaintiff’s action is barred by reason of Section 13 (1) ofthe Rent Restriction Act, No. 29 of 1948. In this situation it does notappear to me to be necessary, sitting alone, to discuss arguments raisedby counsel for both parties as to the conflict between the decisions inHinniappuhamy v. Kumarasingha {supra) on the one hand and BancLarav. Appuhamy 4 and Ukkuioa v. Fernando 6 on the other.
It is important to realise, said Gratiaen J. in Britto v. Heenatigala *,that Section 13 of the Act (No. 29 of 1948) operates “ notwithstanding•anything in any other law ”. This means that the “ tenant ” is protected-even though his contractual rights may have been terminated (e.g. by duenotice or by effluxion of time) or extinguished by operation of law. Giving
» (1957) 59 N. L. R. 566.9 (1915) 18 N. i. R. 169.• (1946) 47 N. Zr. R. 433.
(1923) 25 N. L. B. 176.8 (1936) 38 N. L. R. 125.
(1956) 57 N. L. R. 329.
J-. B. D£ SILVA, J.—Sabi v. DarUuwa
130
-effect to Section 13 of the Rent Restriction Act, I hold that the present.action was not competent and should have been dismissed with costs.The appeal is, therefore, allowed, and the plaintiff's action is dismissedwith costs in both courts.
I am unable to agree with Mr. J ay e ward ene that a decision in this caseadverse to the plaintiff causes bim undue hardship. His position wouldhave been the same if the defendant had been an ordinary monthly tenant.The fact that the defendant was the holder of notarial lease—albeit un-registered—which was due to expire only some three and a half monthsafter the date of the purchase cannot surely make the defendant's claim toretain occupation any less deserving than that of a tenant from month tomonth.
Appeal allowed.