028-NLR-NLR-V-78-K.-T.-H.-PIERIS-Appellant-and-DICKSON-FERNANDO-Respondents.pdf
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WANASUNDERA, J.—Pier is v. Dickson Fernando
Present; Sirimane, J-, Wanasundera, J., and Colin-Thome, J.
K. T. H. PIERIS, Appellant and M. DICKSON FERNANDO,
Respondents
S. C. 467/73—D. C. Panadura 12168
Rent Act, No. 7 of 1972—Section 22(1)—Section 10(5) contrasted withSection 22(1)—Requirement of notice terminating tenancy.
Where the Plaintiff instituted action to have her tenant (thedefendant) ejected from the premises in suit on the ground thatthe condition of the premises let to the defendant had deterioratedowing to the acts or the neglect and default of the defendant,without previously giving a valid notice of termination of thecontract of tenancy,—
Held : Section 22(1) presupposes a cause of action which canonly be constituted when the landlord for lawful reasons seversthe relationship of landlord and tenant. Section 22, therefore,deals only with a limitation on the power of the Court in respectof actions by a landlord to eject a tenant and does not providea right to come into Court without terminating the tenancy.
PPEAL from a judgement of the District Court of Panadura.R. C. Gooneratne for the Plaintiff-Appellant.Defendant-Respondent absent and unrepresented.
Cur. adv. vult.
March 25, 1976. Wanasundera, J.—
The plaintiff-appellant filed this action to have her tenant,the defendant-respondent, ejected from the premises describedin the schedule to the plaint, and for the recovery of a sum ofRs. 1,000 as damages sustained by her as a result of wanton'damage caused to the premises by the defendant. The plaintwas filed in July 1970, and an amended plaint was filed on the31st of March 1972. By the latter date a new Rent Act, No. 7 of1972, was in operation and the old Rent Restriction Act (Cap.274) was repealed.
In the amended plaint the plaintiff stated that there was acontravention by the defendant of the provisions of section12A(d) of the Rent Restriction Act, No. 12 of 1966, and also ofsection 22(1) (d) of the Rent Act, No. 7 of 1972. She alleged thatthe condition of the premises let to the defendant had deterio-rated owing to the acts or the neglect and default of thedefendant.
WANASXJNDEKA, J.—Pieria v. Dickson Fernando
207.
The defendant in his answer took up the pleas that—
the plaintiff was not entitled to eject the defendant
without a valid notice terminating the tenancy, and.
the cause of action was prescribed.
After trial the learned District Judge held that he was satis-fied that there was deterioration of the premises caused by thedefendant within the terms of section 22(1) (d) of the Rent Act.The learned District Judge, however, dismissed the plaintiff’saction on the ground that she had failed to terminate thetenancy by a valid notice to the defendant to quit and delivervacant possession of the premises to the plaintiff.
Mr. Gooneratne for the appellant argued that accepting thelearned Judge’s finding that the damage had been caused to thepremises by the defendant, the learned District Judge erredwhen he held that the notice terminating the tenancy wasnecessary to enable the plaintiff to maintain the action. Theauthorities which he cited, May’s Trustee vs. Meyer, 1904T,S. 202, and Halsbury, Vol. 23, page 674, I find, deal mainlywith the common law position in respect of leases and do nothelp to further the case of the appellant.
Under the common law, a monthly tenancy could be termi-nated by either party giving a month’s notice of termination ofthe contract of tenancy. In respect of other letting for a longerand definite period, it would appear that the landlord is entitledto claim the cancellation of a lease prematurely, if the tenantcommits a breach of his obligations such as the misuse or abuseof the leased property, or the failure to carry out any specialobligations imposed on him by express agreement. A noticeof termination of the tenancy, however, would be required insuch a case.
The Rent Control Laws have given a great measure of protec-tion to tenants and it is primarily the statutory provisions ofthe Rent Acts we have to consider in this case. In consideringthese provisions,, it is however necessary to bear in mind that,though these provisions have primacy, they should be con-sidered against the background of the common law. Section 22of the present Rent Act (section 12A of the old Rent RestrictionAct) seems to provide a limitation on the jurisdiction of theCourt to entertain actions. The material words read asfollows :—
“….no action or proceedings for the ejectment of the
tenant of any premisesshall be instituted in or
entertained by any court,”
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WANASUNDERA, J.—Pieria v. Dickson Fernando
It seems to me that this wording clearly suggests that the provi-sion is formulated in terms of jurisdiction only. They do notpurport to dispense with such requirements of the general lawas a need for a cause of action, etc., which alone would entitlea person to come into court and maintain an action.
The provisions of section 10 (5) of the Rent Act (section 9 (2)of the Rent Restriction Act) can be contrasted with those ofsection 22(1). Section 10(5) states that—
“ Where the tenant of any premises sublets such premisesor any part thereof without the prior consent in writing ofthe landlord, the landlord of such premises shall, notwith-standing the provisions of section 22, be entitled in a courtof competent jurisdiction to a decree for the ejectment ofsuch tenant from such premises….”
These provisions expressly create a right in the landlord,upon the requirements being fulfilled, to come into court andobtain an order for the ejectment of the tenant. The differencebetween this section and the earlier section referred to is, thatin this case the section provides the cause of action whichenables the landlord to file action on the happening of theevent. Section 22(1) on the other hand presupposes a cause ofaction which can only be constituted when the landlord forlawful reasons severs the relationship of landlord and tenant.Section 22, therefore, deals only with a limitation on the powerof the court in respect of actions by a landlord to eject a tenantand does not provide a right to come into court without termi-nating the tenancy. In Wimalasuriya vs. Ponniah, 52 N L.R. 191,Basnayake, J., held that no notice terminating the tenancy isrequired in the case of an unauthorised sub-letting, I find thatthis is undoubtedly correct on a plain reading of the relevantprovisions.
In the present case the plaintiff has referred to two noticessent by the defendant in her plaint, but she did not lead•evidence showing a notice validity terminating the contract oftenancy. In these circumstances I find that the order of thelearned District Judge was correct when he dismissed the plain-tiff’s action on this ground. I would accordingly dismiss thisappeal.
As the respondent was not represented at the hearing of thisappeal, I make no order as to costs.
Sirimane, J.—I agree.
Colin-Thome, J.—I agree.
Appeal dismissed.