HAMY v. IRENE DIAS BANDARANAIKE

006-SLLR-1984-V1-APPUHAMY-v.-IRENE-DIAS-BANDARANAIKE.pdf


44
Sri Lanka Law Reports
[1984} 1 SLR.
APPUHAMY
v.IRENE DIAS BANDARANAIKE
COURT OF APPEAL.
L. H. DE ALWIS. J. AND G. P. S. DE SILVA, J.
C.A. (S.C.) 185/76(F> – DISTRICT COURT COLOMBO 2009/R.E.
NOVEMBER 16,1983.
Rent Act. No. 7 of 1972-Notice to quit-Excepted premises-Effect of interlocutorydecree in partition action.
The plaintiff had instituted action as administratix de bonis non in the District Courtfor the ejectment of the defendant who was the tenant of the premises in suit andfor the recovery of arrears of rent. The basis of the action was that the premiseswere 'excepted premises' within the meaning of the Rent Act. No. 7 of 1972 andthat the plaintiff had by writing dated 1 Sth February, 1971 noticed the defendant tovacate the premises by 31 st March. 1971. The District Judge entered judgment forthe plaintiff. The defendant appealed to the Court of Appeal.
Held-
An omission to specifically state that a notice to quit is given by the plaintiff inher capacity as administratrix is not material. A notice to quit should not beinterpreted narrowly and restrictivety but having regard to the conduct of thedefendant and the wording of the notice.
Premises which are 'excepted premises' within the meaning of the Rent Act,No. 7 of 1972 as assessed on the relevant date according to the annual value
kof the premises at that time, remain 'excepted premises' despite asubsequent change in the annual value of the same premises.
Rights flowing from a monthly contract of tenancy are not affected by theentering of an interlocutory decree in a partition action.
Cases referred to
SunroseLtd. v. Gould [1962} 1 WLR20.
Perera v. Jansz (1949) 51 NLR 479.
APPEAL from a judgment of the District Court of Colombo.
H. W. Jayewardene. Q.C. with N. R. M.t Daluwatte for the defendant-appellant.Jacolyn Seneviratne with R. Weerakoon and D. S. Rupasinghe forplaintiff-respondent.
Cur. adv. vutt.
CA
Appuhamy v. Irene Dias Bandaranaike (G. P. S. De Silva. J.)
45
January 17, 1984.
P. S. DE SILVA, J.
The plaintiff instituted this action, as administratrix de bonis non ofthe estate of John de Silva, for the ejectment of the defendant whowas the tenant #of the premises in suit and for the recovery ofarrears of rent. The basis of the action was that the premises were‘excepted premises* within the meaning of the Rent Act No. 7 of1972. and that the plaintiff had by writing, dated -15th February.1971 noticed the defendant to vacate the premises by 31 st March1971. After trial, the District Judge entered judgment for theplaintiff and now the defendant has appealed.
Counsel for the defendant-appellant submitted that the plaintiffcannot have and maintain the action for the reason that
the notice to quit is not valid in law ;
the premises are not 'excepted premises* within the*meaning of the Rent Act, No. 7 of 1972 ;
as a result of the interlocutory decree entered in the partitionaction No. 13802/P of the District Court of Colombo, thedefendant has become the tenant of not only the plaintiff butalso the other two co-owners.
As regards the invalidity of the notice to quit P1 Counselcontended that the notice was given by Mrs. Irene DiasBandaranaike in her personal capacity and that there was no privityof contract between Mrs. Bandaranaike and the defendant.Counsel urged that a valid notice terminating the tenancy, couldonly be given by Mrs. Bandaranaike in her capacity as administratrixde bonis non of the estate of John de Silva.
It is true that P1 does not expressly state that it is given byMrs. Bandaranaike in her representative capacity. It appears to methat P1 is equivocal. The plaintiff admittedly is an heir of the originallandlord, the deceased John de Silva.' It is clear from the avermentsin paragraph 3(b) of the Answer, that the defendant has paid rent tonone other than the plaintiff both before and after the notice to quit.P1 itself begins with the words
‘I am instructed by my client, Mrs. Irene Dias Bandaranaike, yourlandlord in respect of the above premises, to give younotice"
46
Sri Lanka Law Reports
[1984] 1 S.L.R.
Having regard to the conduct of the defendant and the wording ofPI. it seems to me that the omission to specifically state that noticeto quit is being'given by Mrs. Bandaranaike in her capacity asadministratrix is not material.
Counsel for the plaintiff-respondent cited the <^se of SunroseLtd. v. Gould {1) where Holroyd Pearce, L.J., made the observationthat
". . . . at common law notices to quit have been benevolentlyconstrued ut magis valeant quam pereant.
There is also the decision of Nagalingam, J. in Perera v. Jansz (2)where the learned Judge applied the maxim falsa demonstratio nonnocet to a notice to quit which referred to the premises by anincorrect assessment number. It seems to me wrong in principle tointerpret P1 in an unduly narrow and restrictive manner as iscontended for on behalf of the defendant-appellant, t accordinglyhold that PI is valid and that it effectively terminates the contract oftenancy.
I now turn to the submission that the premises in suit are not"excepted premises’. Section 2{5) of the Rent Act, No. 7 of 1972,enacts that:
"the regulations in the Schedule to this Act shall have effect forthe purpose of determining the premises which shall beexcepted premises for the purposes of this Act
i .
Admittedly, the premises in question are business premises. Interms of regulation 3 in the Schedule to the Act, business premiseswnujd be excepted premises if the annual value as specified in theassessment made as business premises for the purposes of rateslevied by the local authority "under any written law and in force onthe first day of January. 1968, or, where the assessment of theannual value thereof as business premises is made for the first timeafter the first day of January, 1968, the annual value as specified insuch first assessmenf. exceeds Rs. 6,000/-.
It is not in dispute that the annual value of the premises wasassessed at Rs.7,500/- as on 1st January, 1968. It is alsocommon ground that the annual value of the premises was reducedto Rs. 5,310/- as frqjn 1st January, 1971. Counsel for thedefendant-appellant contended that since the annual value was
CAAppuhamy v. IreneDiaa Bendaranaike (G. P. s. De Silva, J.f47
reduced below Rs. 6,000/- with effect from 1st January, 1971,
, the premises aA not excepted premises. Counsel urged that theidentity of the premises as it stood on 1st January, 1971, wasdifferent from the premises that existed on 1 st January, 1968.
It is common ground that since January 1968. a part of the roof(184 sq.ft.) had collapsed and the floor area was reduced. TheInspector of the Municipal Council stated in evidence, that this wasthe reason for the reduction in the annual value of the premises toRs. 5,310/- in 1971. It seems to me that the fact that a part of theroof had collapsed and the floor area was reduced, does not meanthat the identity of the premises assessed in 1971 is different fromthe identity of the premises assessed in 1968. As rightly submittedby Counsel for the plaintiff-respondent, the assessment in 1971 isin respect of the same premises as were assessed in 1968, but theannual value was reduced as the floor area available to the tenantwas (ess than what was available in 1968. There was no physicalsub-division of the premises ; nor was there an amalgamation withother premises nor a structural alteration which changed theidentity of the unit which was assessed in January 1968. I,therefore, hold that the assessment in force on 1st January, 1968prevails and that the premises are 'excepted premises'.
Counsel for the defendant-appellant finally submitted that onceinterlocutory decree was entered in the partition action, D.C.Colombo 13802/P, the defendant became a tenant of all the*co-owners and the plaintiff could not maintain the action. Thissubmission does not commend itself to me for the reason that therights from a monthly contract of tenancy are not affected by theentering of an interlocutory decree in a partition action- Videsection 48(1) of the Partition Law, No. 21 of 1977, section 651 (1)of the Administration of Justice (Amendment) Law, No. 25 of 1975and section 48(1) of the Partition Act (Chapter 69).
In the result, the appeal fails, and is dismissed with costs.
L. H. DE ALWIS, J. -1 agree.
Appeal dismissed with costs.