003-NLR-NLR-V-75-M.-A.-J.-PARACK-Appellant-and-A.-R.-M.-FASI-Respondents.pdf
O. P. A. SILVA, S.P.J.—Parack v. Fasi
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1971Present: G. P. A. SUva, S.P.J.
M.A. J. PARACK, Appellant, and A. R. M. FASI, Respondents8. C. 173/69—C. R. Colombo, 96896/RE
Bent Restriction Act (Cap. 271)—Section 12 A (J) (a)—Tenant in arrears oj rent—Notice to quit—Payment of arrears thereafter—Liability oj the tenant neverthelessto be evicted—Admission, in trial Court, of the validity of the notice toquit—Whether the validity con be challenged in appellate Court.
In an action in ejectment in respect of premises subject to section 12 A (1) (a)of the Rent Restriction Act, the tenant is liable to be evicted if, even thoughhe has paid all arrears of rent at the time of the institution of the action, he wasin arrears at the time v.hen the cause of action arose. In such a case the materialpoint of time, is the time when the cause of action arose.
Bamarakoon v. Ounadasa (74 N. L. R. G2) followed.
Mahamed v. Wahab (72 N, L. R. 333) not followed.
Where a tenant admits at tho trial the validity of the notice to quit that wasgiven to him by his landlord, he will not be entitled to contend for the firsttime in appeal that the notice was not valid or that it was invalid on theground that there wets no relationship of landlord and tenant tetween theparties at the time when the notice to quit, was given.
A PPEAL from a judgment of the Court of Requests, Colombo.
N.S. A. Ooonelilleke, with (Miss) L. R. Breckenridge, for the defendant-appellant.
Bimal Rajapakse, for the plaintiff-respondent.
October 22,1971. G. P. A- Silva, S.P.J.-
The plaintiff in this case sued the defendant for arrears of rent andejectment from certain premises. One of the averments in the plaintwas that the plaintiff, by writing dated 6th January 1967, gave noticeto the defendant to quit and deliver possession of the said premisesbn 30th April 1967, as he was in arrears of rent from the 1st of August1964. The notice referred to was produced in the case as D5, which wasdated 6th January 1967. It was further averred that the defendantwas in arrears of rent from the 1st August 1964 to 31st October 1967,and was thus in arrears of rent for more than three months after it becamedue. The position taken up by the defendant in his answer was that heoriginally became the tenant of one Farook in December 1961 andsubsequently of one Mukthar as from 1st March 1963, Mukthar being thebrother of the plaintiff, that he paid rent due for the period March 1963to August 1964, to the said Mukthar and obtained receipts from him and
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G. P. A- SILVAj S.P.J.—Parack v. Faai
that he deposited at the Bent Department of the Colombo Municipality,rents for the months of September, October and November 1964 in favourof the said Mukthar. He also averred that after Mukthar died on orabout 14th December, 1964, he was unaware of the heirs of the saidMukthar or the person to whom the rents should be paid and thatimmediately after he became aware that the plaintiff had applied forprobate in respect of the estate of the said deceased Mukthar, he depositedall rente in the Rent Department of the. Colombo Municipality.
At the trial, Counsel for the defendant admitted the notice to quit,and having regard to the course that the trial took; one has to presumethat the admission was that the notice was correct and there was noobligation therefore on Counsel for the plaintiff to raise any issues as tothe giving of the notice or the validity thereof. It is important to bearthat in mind for the reason that in this Court one of the main submissionsmade in regard to the ejectment was that at the time notice was servedby the plaintiff, he had not become the landlord of the defendant, andthat therefore, the notice was not a valid notice. The four issues thatwere raised by the plaintiff were—
Did the plaintiff let the premises in suit to the defendant ?
Has the defendant been in arrears of rent for the period 1st June,
1966, to 30th September 1967 ?
If issue (1) or issues (1) and (2) are answered in the affirmative, is
the plaintiff entitled to a decree in ejectment ?
What amount is due to the plaintiff by way of rent and damages ?
The learned Commissioner found in favour of the plaintiff in respectof the first three issues and set down the damages at Rs. 16 a monthfrom 1.7.69. If, as I hold he was, the learned Commissioner was correctin his decision as far as issues 1, 2 and 3 were concerned the plaintiffwas entitled to succeed in this action, and in view of the admission madeby the learned Counsel at the trial on the basic issues, the argumentof Counsel in this Court that the notice was not a valid notice or that it■was invalid, because it was an action before the relationship of landlordand tenant was established, cannot succeed.
A further point taken up by the Counsel for the Appellant was that,in any event, at the time of the institution of the action all arrears ofrent had been paid by the defendant. In regard to this point Counselcited two cases, 72 N. L. R. 333 1 and 74 N. L. R. 62 2 where there was adifference of opinion as to whether a tenant was liable to be ejected, ifhe had paid the rent which was due at the time of the action, eventhough he was in arrears of rent at the time notice was issued. I preferto take the view expressed by Panditha-Gunawardane, J. in the case of2f. B. Samardkoon v. P. V. 0. Gunadasa 74 N. L. R. 62 in which it washeld that tho material point of time at which arrears should be decidedis the time tho cause of action arose. I therefore hold that the defendant
ilSSO) 72 N. L. if. 3 3.
{1970) 74 N. L. if. 62.
Kaliamma t. Wanarajah Tea Co., Lid.
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in this case was in arrears of rent at the time the cause of action aroseand that he is therefore liable to be ejected. Another complaint made bythe Counsel for the Appellant was that the learned Commissioner hadproceeded on a basis that was not taken up either by the plaintiff or thedefendant at the trial. I am unable to agree with this contention. Inany event, on the issues framed, the admission made by Counsel for thedefendant and the evidence available, I am unable to say that thefinding that the learned Commissioner arrived at was wrong.
Counsel for the Respondent has drawn my attention to a Revisionapplication filed by the Appellant on the 10th of February 1970, in whichhe mado a complaint against the writ of possession issued by theCommissioner of Requests in this case and prayed that the writ issuedbe reoalled and that the defendant be restored to possession of the premisesin suit pending the hearing and determination of the appeal filed by him;The petition mokes it clear that the defendant had been ejected fromthese premises on the 17th September 1969, about 2 years ago, and Counselfor the Appellant has not sought to support this application today,even though the Revision papers came up before this Court earlier andwere ordered to be taken up along with this case. He did not desire tosupport this application, and tho revision application will thereforestand dismissed.
For the reasons stated by me, the appeal itself is dismissed withcosts.
Appeal dismissed.