Hussain v. Jiffry
SUPREME COURTS. N. SILVA, CJ.
BANDARANAYAKE, J. ANDISMAIL, J,
SC APPEAL NO. 110/97
CA NO. 307/84
DC COLOMBO NO. 4400/RE
19 JULY, 23 AUGUST AND 15 OCTOBER, 2001
Landlord and Tenant – Rent Act, No. 7 of 1972 – Whether a tenancy is terminableby a unilateral notice of termination by the tenant.
The appellant was the landlord and the respondent was the tenant of premisesNo. 297, Main Street, Colombo 11. On 31. 03. 1980, the respondent informedthe appellant in writing that he (the respondent) was relinquishing his tenancywith effect from that date and requested the appellant to give the premises toone R. There was no evidence of a new tenancy, nor did the respondent givevacant possession of the premises to the appellant.
However, the respondent sent a letter dated 05. 07.1980 to the appellant informingher “I continued and still remain the lawful monthly tenant of the premises" witha cheque for rent for the months of April, May and June, 1980, which establishedthat the respondent had not handed over the premises to the appellant.
The appellant instituted action for the ejectment of the respondent from thepremises, alleging that by this letter dated 31. 03. 1980 the respondent voluntarilyterminated the tenancy and that he was in unlawful occupation from 01. 04. 1980.
(1) In the circumstances, there was no termination of the tenancy and therule that a tenant cannot contract out of the protection afforded by theRent Act applies.
Cases referred to :
Gaffor v. Vivien Perera – (1994) 3 Sri LR 114.
Ranasinghe v. Premadharma – (1985) Sri LR 63 at 72.
Ibrahim Saibo v. Mansoor (D. B.) – (1953) 54 NLR 217 at 224.
Sri Lanka Law Reports
 1 Sri L.R.
APPEAL from the judgment of the Court of Appeal.
Rohan Sahabandu with Athula Perera for appellant.
£. D. Wickremanayake with Anandhi Cooray for respondent.
Cur. adv. vult.
February 25, 2002
SHIRAN I A. BANDARANAYAKE, J.
The plaintiff-respondent-appellant (hereinafter referred to as the 1appellant) instituted action in 1980 against the defendant-appellant-respondent (hereinafter referred to as the respondent) for the ejectmentof the respondent from the premises in question. The appellant tookup the position that the respondent by his letter dated 31. 03. 1980(P1), terminated the tenancy voluntarily and that he was in unlawfuloccupation from 01. 04. 1980.
At the conclusion of the trial the District Court held in favour ofthe appellant. The respondent appealed to the Court of Appeal whichwas allowed by its decision dated 29. 01. 1997. The appellant, 10
thereafter, appealed to this Court and special leave to appeal wasgranted on 17. 07. 1997 only on the following question :
"As the contract of tenancy is a contract between two partieswhen the terms and conditions are accepted by the two parties,can one party unilaterally change and revoke his earlier decision.
Does notice relied upon by the plaintiff (P1) serve to terminatethe tenancy?"
The Court of Appeal held against the appellant on the ground thata tenant can never contract out of the protection afforded by the
Hussain v. Jiffry (Shirani A. Bandaranayake, J.)
It is common ground that the respondent was the tenant and thepremises in question is governed by the Rent Act, No. 7 of 1972.
It is also common ground that the respondent wrote a letter to theappellant on 31. 03. 1980 (P1). This letter was in the followingterms :
"Premises No. 297, Main Street, Colombo 11.
I hereby inform you that I am relinquishing my tenancy of theabove premises of which you are the landlady as from the 31stMarch, 1980.
Mr. A Ragunathan, who is a good friend of mine wants to get 3othe tenancy of the premises and shall be grateful if you wouldgive the premises to him."
It is also common ground that after writing the above letter, therespondent did not give vacant possession and the appellantinstituted action to evict the respondent.
Citing Ghaffor v. Vivien Perera,m the learned counsel for theappellant stressed that the applicability of common law with regardto the Rent Act has not been abrogated in its entirety. His positionis that, if the Rent Act is silent on the issue of the tenant renouncinghis tenancy, the common law would be applicable and in such a 40situation the appellant could act on the letter relinquishing tenancy.The contention of the learned counsel is that the only requirementin this kind of a situation is the acceptance of the relinquishing ofthe tenancy by the landlord.
Learned counsel for the respondent, however, was not inagreement with this view. His contention is that there is no provisionin the Rent Act for application of the common law when there is alacuna in the Act.
Although there is comprehensive statutory provision on tenancy inSri Lanka, yet the common law applicable to the subject area has so
Sri Lanka Law Reports
 1 Sri L.R.
not been abrogated in its entirety. Referring to the above, Prof.G. L. Peiris, in his book on The Law of Property in Sri Lanka, volumeII, Landlord and Tenant (Lake House Investments, 1976) has statedthat –
"The Roman Dutch common law applicable to landlord andtenant has not been abrogated, in its entirety, by the statutes whichgovern the subject today in Sri Lanka. Although some aspects ofthe common law have been superseded entirely by provisionsincorporated in statutes, there are yet other areas of the commonlaw which remain substantially intact. The statutes, therefore, are 60to be seen as an edifice erected on the foundation of thecommon law . . ."
It should, however, be noted that although the common law stillremains 'substantially intact', the Rent Act incorporates statutoryprovisions which are predominantly for the protection of the tenant.
In Ranasinghe v. Premadharma Wanasundera, J. was of the viewthat –
"The Rent Act has created a statutory relationship betweenlandlord and tenant drastically altering some common law conceptsand has been designed to ensure a great measure of security and 70protection to tenants.”
With regard to the present position, there is no necessity to considerthe applicability of common law principles, as a similar situationhas been considered in a collective judgment of five (5) Judgesin Ibrahim Saibo v. Mansoor.<3) In their collective judgment, the Courtstated that –
"A tenant can never contract out of the protection afforded. Itfollows from this that he can at any moment recall a promise tosurrender possession. The only two ways in which the statutoryprotection comes to an end are :so
By the handing back of the premises to the landlord;
By the order of a competent Court that is to say a Courtactina with jurisdiction."
Hussain v. Jiffry (Shirani A. Bandaranayake, J.)
It is conceded that although the respondent wrote the letter P1dated 31. 03. 1980, the premises in question was not handed overto the appellant. Even if the respondent had wanted to relinquish thetenancy at the time he wrote the letter P1, and if the owner hasaccepted it, still it would be necessary for the premises to bephysically handed over by the respondent to the appellant, for thestatutory protection to come to an end. Under a contract of tenancy, 90the owner and the tenant agree and accept the terms of tenancy.Therefore, although the respondent may have contemplatedrelinquishing the premises as revealed in PI, he could, nevertheless,unilaterally change his mind and reverse his decision, if he had nothanded over the premises to the landlord. In such circumstances thedocument marked P1 by itself does not serve to terminate the tenancy.
It is common ground that the premises in question, continued tobe in the possession of the respondent and the letter dated05. 07. 1980 (P4) sent by the respondent to the appellant informingher that, 7 continued and still remain the lawful monthly tenant of'1 oothe premises", with a cheque for the rent for months of April, Mayand June, 1980, establish that the respondent had not handed overthe premises to the appellant. In such circumstances it cannot besaid that the tenancy agreement between the appellant and therespondent had come to an end.
For the aforementioned reasons, I hold that the clear intention ofthe respondent was to continue to occupy the premises in questionwithout handing it over to the appellant. The appeal is, accordingly,dismissed and the judgment of the Court of Appeal dated
01. 1997 is affirmed.110
There will be no costs.
S. N. SILVA, CJ. – I agree.
ISMAIL, J. — I agree.