if the tenant has, on or before the date fixed insuch summons that is served on him, as the date fin which he shallappear in court in respect of such action or proceedings, tenderedto the landlord all arrears of rent."
The District Judge reached the finding that there was no proofthat the defendant had deposited the sum of Rs. 1500 as arrearsof rent to the credit of the case. This finding is clearly contrary tothe evidence. The defendant in the course of his evidence producedthe relevant receipt as V3. This was not challenged. The Journal EntryNo. 11 shows that the Manager of the Bank had sent a letter toCourt confirming the deposit of the money. Thus the finding of theDistrict Judge cannot be sustained.
The true question that arises for decision is whether the depositof the arrears of rent to the credit of the instant case is a“ tender “ of such arrears to the " landlord “ within the meaning of
Jayakody v. Lilian Perera (G. P. S. de Silva, C. J.)
section 22 (3) (c). In Rasak v. Esufally Basnayake C.J. hadoccasion to consider the meaning of tender of rent in the contextof section 13 of the Rent Restriction Act. Said the learned Judge,“ Mere willingness to pay the rent does not discharge the obligation
to pay the rentTender does not mean mere expression
• of readiness to pay. To constitute tender the readiness to pay mustbe accompanied by production of the money that is offered in
satisfaction of the debt. (Harris on Law of Tender, p. 11)
The rent must be actually paid ".
Mr. Daluwatte for the plaintiff-respondent placed strong relianceon the judgment of the Court of Appeal in Medonza v. de Silva(Z|, where the provisions of section 22 (3) (c) of the Rent Act directlyarose for consideration. Tambiah J. (as he then was) having citedthe case of Rasik vs. Esufally (supra) and a passage from Law ofContract by Cheshire and Fifoot, 4th Edn., P. 445 concluded “So, it seems to me to constitute a valid tender of all arrears to thelandlord under section 22 (3) (c), there must be actual production
of the moneyThe tender of the moneymust be made to
the landlord ". This, in my view, is the correct interpretation to beplaced on the words “ tendered to the landlord all arrears ofrent " in section 22 (3) (c). It is to be noted that the same phraseoccurs in section 22 (3) (b) which contemplates a situation prior tothe institution of action. In such a situation the tender of the moneymust of necessity be to the landlord, which is a term defined in section48 of the Rent Act. There is no compelling reason for giving the sameexpression occurring in section 22 (3) (c) a different meaning.
Mr. Premadasa, on the other hand, submitted that the interpretationplaced on section 22 (3) (c) of the Rent Act in Medonza v. de Silva(supra) was incorrect as the Court of Appeal has failed to considersection 409 of the Civil Procedure Code. Section 409 of the CivilProcedure Code reads thus:- “ The defendant in any action broughtto recover a debt or damage may, at any stage of the action, depositin court such sum of money as he considers a satisfaction in fullof the plaintiffs claim ". In my view the provisions contained in section409 of the Civil Procedure Code which speaks of an action " to recovera debt or damage “ have no application to the provisions in section22 (3) (c) of the Rent Act. As rightly submitted by Mr. Daluwatte,where a tenant is in arrears of rent for three months or more withinthe meaning of section 22 (3) (a) of the Rent Act, two distinct legal
Sri Lanka Law Reports
[1993] 2 Sri L.R.
consequences flow. Firstly, the tenant loses the protection of the RentAct and the bar against proceedings for ejectment by the landlordis removed. Secondly, the landlord has a claim against the tenantfor arrears of rent. It is to be noted that section 409 of the CivilProcedure Code speaks of a “ debt “ and of " satisfaction in full ofthe plaintiff's claim “. The deposit of money in court in full of theplaintiff's claim The deposit of money in court in terms of section409 of the Civil Procedure Code has relevance to the money claim,namely the arrears of rent. However, section 409 of the CivilProcedure Code has no bearing whatever on the claim for ejectment.The defendant who was in arrears of rent within the meaning ofsection 22 (1) (a) and has thus lost the protection of the Rent Act,cannot regain the protection which he has lost except by complyingwith the statutory requirements set out in section 22 (3) (c) of theRent Act.
I accordingly hold that the deposit of money to the credit of thecase, does not constitute a tender of arrears of rent to the landlordwithin the meaning of section 22 (3) (c) of the Rent Act.
In the result, the appeal fails and is dismissed with costs. Sincethe immediate ejectment of the defendant from the premises in suitmay cause grave hardship, I direct writ of ejectment not to issue till31st December, 1993.
KULATUNGA, J. – I agree.
RAMANATHAN, J. – I agree.
Appeal dismissed.