Easton v. Nagario
1969Present: Samerawlckrame, J.K.HASSAN, Appellant, and A. 0. NAGARIA, RespondentS.'C. 36/68—0. R. Colombo, 89925
Landlord and tenant—Disclaimer of tenancy by tenant—Notice to quit not necessary.then.
A tenant who disclaims tenancy is not entitled to a notice to quit before actionin ejeotment is instituted against him. 1
1 Monir on Evidence (4th edition), Vol. II, p. 685.
SAMERAWICKRAME, J.—Haaaan v. Nagaria
ApPEAL from a judgment of the Court of Requests, Colombo.
J.IF. Subasinghe, for the defendant-appellant.
K.Shanmugam, for the plaintiff-respondent.
Cur. adv. tmil.
October 15, 1969. Samerawioicbame, J.—
Counsel for the defendant-appellant submitted that the contract oftenancy between the part it.-;* had not been terminated by a notice toquit duly given. Learned counsel for the plaintiff-respondent, whilesubmitting that notice to quit had been duiy given, contended that itwas not open to the defendant-appellant to seek to have this actiondismissed on the giouncl that no valid notice was given because thedefendant who disclaimed tenancy, was not entitled to a notice to quit.In Mvltu Katchia v. V‘<iv.)vo Notclm.} was held that a tenant whodisclaimed to hold of Ids landlord and puts him at defiance is not entitledto have the action against him dismissed for Want of a valid notice toquit. This decision was followed in <S'undent »•! w«a/ r. dusty Appu *,and in Patrick v. [<n<lix". hi lids, case the defendant-appellant hasdenied tenancy under the plaint ill'-respondent and the latter had to provetenancy in the. ac! ion. In view of the authorities that have been citedto me, I hold that no notice to quit need have been averred or proved inthe circumstances of this case.
Learned counsel for the defendant-appellant also submitted that theplaintiff had failed to prove the quantum of arrears of rent satisfactorilybecause, though he stated that he had books of accounts which showedthe receipts of rent, he failed to produce them. The defendant howeverdenied that he had paid any rent to the plaintiff-respondent. Thoughunder stress of cross-examination when confronted with two chequeswhich the plaintiff had produced to prove payment of commission to himby the defendant-appellant the latter said that they were payments ofrent, both before and after that in the course of his evidence he deniedtenancy and payment of rent to the plaintiff-respondent. Further theplaintiff-respondent has averred in his plaint and has proved and thelearned Commissioner has held that the defendant was in arrears of rentfrom October 1960. The arrears of rent due was a sum of Rs. 2,669'34but the plaintiff-respondent restricted his claim to a sum of Rs. 700 inorder that he might bring this action in the Court of Requests. In thecircumstances, I do not think that there is sufficient ground for interferingwith the quantum pf arrears of rent awarded in the decree.
The appeal is dismissed with costs.
1 (1305) 1 S’.L. R. SI.3 (1934) 36 N. L. R. 400.
3 (1059) 62 N. L. R. 411.
K. HASSAN, Appellant, and A. O. NAGARIA, Respondent