015-NLR-NLR-V-54-JAINUDEEN-Appellant-and-MOHIDEEN-THAMBY-Respondent.pdf
3STAGAX.TN"GAM S.P.J. —Jainudeen v. MohideenlThaniby
63
1952Present: Nagalingam S.P.J. and Pulle J.JAINUDEEN, Appellant, and MOHIDEEN THAMBY, Respondent
S.G. 79—D. G. Badullct, 9,595
Landlord and tenant—Payment of rent to wrong party—Liability of tenant to be held inarrears of rent—Tender or payment of arrears of rent after institution of action—Effect on rights of plaintiff-—Rent Restriction A.ct, No. 29 of 1948, s. 13 (1) (a).
A tenant will be held to be in arrears of rent if he takes npon himself to denythe landlord’s right to recover rents from him and pays the rents to a thirdparty wrongly..~
It is well settled law since the Rent Restriction Ordinance came into operationthat where after the tenancy has been terminated arrear of rent is tendered orpaid after the institution of action, such tender or payment has no effect at allon the rights of the plaintiff who had instituted the action prior to the tenderto him or receipt by him of the arrear.
^^.PPEAD from a judgment of the District Court, Badulla.
H. W. Tambiah, with E. It. S. It. Goomarasivamy, for the plaintiffappellant.
W. Jayewardene, for the defendant respondent.
' Cur. adv. vult.
August 5, 1952. NagAniNGam S.P.J.—
This is an appeal by an unsuccessful landlord who claimed as againsthis tenant ejectment from the premises and arrears of rent. The factsas ascertained by the learned District Judge may be accepted as correct,for Counsel for the appellant has not sought to challenge those findings.
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NAGALlj JGAM S.P. J.—Jainudeen v. Mohideen Thamby
The defendant had not paid rent from June, 1949, to the plaintiff butthe rent from June, 1949, to the end of February, 1950, had been depositedby the defendant either in special ease D. C. Badulla, 120, to -which I shallmake more detailed reference presently, or with the defendant’s Proctor,Mr. Abeyesekera. On 4th April, 1950, the defendant sent by money ordera sum of Rs. 35 as rent for the month of March, 1950, and another moneyorder for a similar sum on 4th May, 1950, as rent for April, 1950, and inbetween these two dates, namely on the 22nd April, 1950, the defendantsent a money order for Rs. 315 on account of rent for the period from1st June, 1949, to 28th February, 1950. The tenancy was determinedby the plaintiff by notice given on 27th February, 1950, terminating thetenancy by the end of March, 1950, and the action was filed on 19th April,1950. It would be apparent from a consideration of the dates and theamounts remitted that when on the 4th April, 1950, the defendantpurported to send the money order for Rs. 35 in respect of rent for themonth of March, 1950, that was on the assumption that he had dulypaid and accounted for the rent for the period ending February, 1950.Rut of course the defendant’s own conduct clearly indicates that the rent“for the period ending 28th February, 1950, far from having been paid tothe plaintiff was yet at that date in the hands of other persons andcertainly not in the hands of the plaintiff, for it was only on 22nd April,1950, that be sent the money order in respect of the rent for the periodof June, 1949, to February, 1950, to the plaintiff. The plaintiff wastherefore justified in disregarding the payment of the sum of Rs. 35 on4th April, 1950, as a payment of rent for the month of March, 1950, and intreating the defendant as being in arrears with his rent and filing actionagainst him, as already stated, on the 19th April, 1950.
I think it is well settled law since the Rent Restriction Ordinancecame into operation that where, after the tenancy has been terminated,arrears of rent is tendered or paid after the institution of action, suchtender or payment has no effect at all on the rights of the plaintiff whohad instituted the action prior to the tender to him or receipt by himof the arrears. In this case, therefore, the plaintiff was fully entitled to thebenefit of the action instituted by him on 19th April, 1950, and anysubsequent payment made by the defendant could not have tended todetract from the rights that had accrued and vested in him.
The simple question, therefore, is whether the defendant was in arrearsof rent for more than a month at the date the plaintiff instituted theaction, and in regard to this there cannot be the slightest doubt, for thedefendant admittedly was in arrears of rent at least for the period 'fromJuly, 1949, to February, 1950, at the date of institution of action ifdefendant be given credit for the payment of Rs. 35 made on 4th April,1950. Learned Counsel for the respondent was unable to surmount thisobstacle but the learned District Judge has, no doubt, sympathising withthe defendant and referring to the circumstance that the defendant wasnot in such impecunious circumstances as not to have been able to paythe rent, stretched a point in his favour and held that the payment ordeposit of money either in the special case 120 D. C. Badulla or with■the defendant’s Proctor, who was then not in fact the defendant’s Proctorbut Proctor for a party who was litigating with the plaintiff, was a
ijAGALTN-QAM S.P.J".—Jainudeen v. Mohideen v?hamby05
sufficient payment to the plaintiff, and therefore a payment which wouldhave operated to prevent the defendant from being in arrears of rent.It is, however, a trite saying that hard cases make bad law and I do thinkthat however much one may be willing to extend one’s sympathy toa party, nevertheless, unless the law is properly and correctly administeredwithout reference to extraneous circumstances such as sympatheticconsiderations the tendency would be to bring about chaos anddisaster.
It is now necessary to advert to the circumstances by stress of whichthe defendant made payment to parties other than the plaintiff of therent due for the period from June, 1949, to February, 1950. It wouldappear that the plaintiff was trustee of the property in question appointedunder a will of his father, whereby the income of the property was to beexpended in the maintenance of a school. It would also appear that inthe special case 120 D. C. Badulla the plaintiff’s brother challenged theplaintiff’s rights to administer the trust and it would be seen that forsome reason or other which is not clear from the record the defendant hadchosen to throw in his lot with the plaintiff’s brother in that piece oflitigation and sought to proffer assistance to the plaintiff’s brother bywithholding the payment of rent to the plaintiff though the plaintiffdemanded the payment of the rents as they fell due ; it must be noted inthis connection that Mr. Abeyesekera who is the defendant’s Proctor wasat the relevant date of the proceedings of special case 120 D. C. Badullathe Proctor for the plaintiff’s brother. In other words the defendanttook upon himself to deny the plaintiff’s right to recover rents from himalthough admittedly he was the plaintiff’s tenant, and if he did defy theplaintiff he has only himself to thank for the consequences of his conduct,and sympathy should not be permitted to outweigh the plain legalconsiderations that are applicable to the ease.
I would therefore hold that the defendant was in arrears of rent and thatthe plaintiff is entitled to an order for ejectment.
The defendant claimed by way of reconvention a sum of Rs. 135 asconstituting the aggregate of over-payments made by him at the rate ofRs. 5 a month in excess of the authorised rent, but at the trial it wasconceded that the excess was only Rs. 2 a month. On this basis thedefendant will be entitled to claim a sum of only Rs. 54 for the periodending April, 1950. I
I would therefore set aside the judgment of the learned District Judgeand enter judgment for the plaintiff for the sum of Rs. 385 less Rs. 54and for damages at the rate of Rs. 33 a month from 1st May, 1950, untilrestoration of possession of the premises to the plaintiff and for ejectmentof the defendant from the premises and order the plaintiff to be placedin possession thereof. The plaintiff will also be entitled to his costs of theaction and of the appeal.
PoXiLE J.—I agree.
2**-iJ.N. B 19618(8/52)
Judgment set aside.