PEAT, from a judgment of the Court of Requests, Kandy.
H. W. Jayewardene, with D. R. P. GoonetilleJee, for the plaintiffappellant.
No appearance for the defendant respondent.
Our. adv. milt.
FERNANDO—A. J.~—Vincent v. Sumanasena479
June 7, 1954. JTeknando A.J.—
Plaintiff instituted this action on November 6th, 1952, for the ejectmentof his tenant, the defendant, on the ground that rent for June to Sept-ember 1952 had not been paid. Plaintiff had on September 17th,1952 given notice to the defendant to quit the premises on or beforeOctober 31st, 1952. There had earlier been another ejectment action(C. R. No. 9136) between the same parties and in respect of the samepremises on the ground of non-payment of rent for some earlier periodand that( action had been dismissed on 9th September, 1952. It isclear therefore that the arrears of rent on which the present action isbased, were in respect of a period during which the first action waspending. The plaintiff apparently served his second notice to quit(on which the present action is based) eight days after the dismissalof his first action. On 26th September 1952 the defendant tenderedto the plaintiff a cheque for Rs. 200 in payment of the rent for thefour months in respect of which he was in arrears—namely June toSeptember 1952. This cheque was returned by the plaintiff on Nov-ember 7th, 1952, and immediately thereafter the defendant depositedthe sum of J$s. 20P ,to the credit of the former action which had alreadybeen dismissed.
The learned Commissioner dismissed the present second action alsoon the ground that the defendant had not been in arrears for the monthsof June to September 1952. The learned Commissioner does not infact hold that the rent for these months was paid before they fell intoarrear, and his view that the defendant was not in arrears of rent isbased upon an interpretation of Section 14 of the Rent Restriction Act.Section 14 of the Act provides that, “ where an action for the ejectmentof any person ffr#m any premises occupied by him as a tenant is dis-missed by any Court by reason of the provisions of this Act, his occu-pation of those premises for any period prior or subsequent to thedismissal of such action shall, without prejudice to the provisions ofthis Act, be deemed to have been or to be under the original contractof tenancy ”.'* *
The effect of this Section is that when a plaintiff’s action for ejectmentis dismissed, then, despite the purported termination of the tenancyby the lar<dlord’s prior notice, the original contract of tenancy is keptin force retrospectively, so that in the present case by reason of dis-missal of action No. C. R. 9136, the original contract of tenancy betweenthe plaintiff and defendant must be considered as though it had neverbeen terminated. Although the effect of the declaration in Section 14is retrospective, nevertheless the parties would not know that sucha declaration is applicable to their case until the action is in fact dis-missed. Apparently for this reason, the learned Commissioner seemsto think that the plaintiff cannot rely on the failure of the defendant topay rent for the period during which the first action No. C. R. 9136was pending. In short according to the learned Commissioner, “ therents due from a tenant for the period during which an action againsthim was pending could be described as arrears of rent only after thelandlord’s action is dismissed ”.
Js'BRNANDO A. J.—Vincent v. Bumanaaena
In my opinion the judgment is based upon an incorrect view of thelaw. Undoubtedly the effect of the dismissal of the fix si* action was toconfer retrospectively on the tenant (by reason of S. 14) his rights andstatus under the original contract of tenancy ; but equally so therewould be imposed on him also the obligations of the tenant. Whena tenant defends an ejectment action he should be aware* that eitherhe would be liable in damages for his occupation during the pendencyof the action, if the plaintiff is ultimately successful, or he would byvirtue of S. 14 retrospectively continue to be tenant, if the plaintifffails. If therefore he wishes to secure to himself the full benefit whichS. 14 is intended to confer he must regard himself as a tenant during thependency of the action and pay the rent as it falls due, or else depositit in Court to the credit of the action. If he does not do so he runs therisk, as in the present case, that the plaintiff can immediately serve himwith fresh notice forthwith after the determination of the first action.
I accordingly hold that because of the failure of the defendant topay into Court in due time the rent for the months of June, July andAugust 1952 he was in arrears of rent for those months on September17th, 1952, when notice to quit was given* to him.*. QThe plaintiff musttherefore succeed in his action for ejectment, and decree should beentered accordingly in his favour. The plaintiff will also be entitledto damages at the rate of Rs. 50/- per month until the date of theejectment of the defendant. Credit will of course be given to the defend-ant for any payments actually made in the interval. The defendantmust bear the costs in the Court of Requests as well as the costs of thisappeal.
Appeal allowed.