093-NLR-NLR-V-53-KADIBHOY-Appellant-and-KESEYANU-Respondent.pdf
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Kadibhoy v. Keseyanu
Present:Nagalingam A.C.J.
KADIBHOY,Appellant,and KESEYANU, Respondent
S.C. 154—C.R. Colombo, 27,784
Rent Restriction Act—Notice to quit—Effect of acceptance of rent thereafter—“ Waiver of notice ”.
Where a “ statutory landlord ” governed by the Bent Eestriction Act acceptsthe rent paid to him by a “ statutory tenant " even after termination of thetenancy by a proper notice to quit, the plea of waiver of notice is not entitledto succeed.
jAk. PPEAXi from a judgment of the Court of Requests, Colombo.
G-. Thiagalingam, Q.C., with N. Nadarasa, for the plaintiff appellant.
H. W. Tambiah, for the defendant respondent.
Cur. adv. vutt.
NAG ALIN GAM A.C.J.—Kadibhoy t>. Keteyanu
420.
April 8, 1952. Naqaungam A.C.J.—
The landlord who has been refused a decree for ejectment of his tenantappeals from the judgment which was delivered by the learnedCommissioner of Bequests of Colombo.
The only ground upon which the appellant, the landlord, sought toeject big tenant from the premises was that the latter had sublet thepremises to certain third parties. The tenant, while joining issue with thelandlord upon the ground for ejectment set out by the landlord, set upa plea that in any event the landlord had, as a result of his acceptingpayment of the rents that accrued subsequent to the date on which thetenancy had terminated, waived the notice by which he purported toterminate the tenancy.
The first question is entirely a question of fact. [His Lordship then-discussed the evidence, and continued:—]
The conclusion X reach on a survey of the entire evidence is that thedefendant has sublet the premises to the Tamil persons in May, 1950,prior to the institution of the action. The plaintiff, on this finding, isentitled to a writ of ejectment.
The next question for determination is whether the defendant’s pleathat the plaintiff had waived the notice to quit is entitled to succeed.Whatever may have been the position prior to the enactment of the KentBestriction Act in regard to the question of waiver of notice by acceptanceof rent for a period subsequent to the determination of tenancy, the lawsubsequent to its enactment is set out in the case' of Fernando v. Samara-weera 1 where it is indicated that a “ statutory landlord ” has no optionbut to receive the rent paid to him by a “ statutory tenant ” even after -termination of the tenancy by a proper notice to quit. This question istherefore concluded by authority, and I do not think that the plea ofwaiver of notice is entitled to succeed.
In the result, I set aside the judgment of the learned Commissioner andenter judgment for the plaintiff as prayed for with costs both in this Courtand in the Court below.
Appeal allowed.