020-NLR-NLR-V-78-M.-A.-MOHIDEEN-Plaintiff-Appellant-Petitioner-and-M.-S.-MOHIDEEN-Defendant-.pdf
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TENNEKOON, C. J.—>Mohideen v. Mohideen
1975 Present :Tennekoon, C.J, Samerawickrame, J., Udalagama,J., Tittawella, J., and Sharvananda, J
M.A. MOHIDEEN, Plain tiff-Appellant-Petitioner, and M. S-MOHIDEEN, Defendant-Respondent-RespondentS. C. 23/1972, Court of Appeal 19/1973—C. R. Colombo 1980/R. E.
Rent Restriction Act as amended by Act No. 12 of 1966—Section 12A(1)(a) — Termination of Contract of Tenancy—Validity of notice toquit—Arrear of rent at the time of notice to quit not required.
Where a landlord institutes action for' ejectment of his tenant frompremises to which the Rent Restriction Act as amended by ActNo. 12 of 1966 applies, Section 12A(l)(a) does not require thelandlord to satisfy the Court that at the time notice to quit wasgiven to the tenant, the latter was three months or more in arrearof rent after it had become due. Section 12A(l)(a) neitheralters the common law rule that a monthly tenancy may beterminated by a month’s notice, nor does it require that in orderto terminate the tenancy, the tenant should be three months inarrear of rent.
“ It seems to me that the combined effect of the general lawrelating to contracts of tenancy and the provisions of Section12A(1) (a) is that a right to sue a tenant in ejectment will accrueto the landlord when two conditions are satisfied, namely, thatthe contract is terminated by due notice, that is, by a month’snotice, and secondly, that the tenant had fallen into arrear ofrent in respect of a period of 3 months or more ” perTennekoon, C. J.
A.PPEAL from a judgment of the Court of Requests, Colombo.A. M. M. Marleen for the plaintiff-appellant.A. Sivagurunathan for the defendant-respondent.
Cur. adv. vult.
TENNEKOON, C.J.—Mohideen v. Mohideen
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March 10, 1975. Tennekoon, C.J.
The landlord of a certain premises filed action in the Court ofRequests of Colombo against his tenant, the defendant-respondentfor ejectment and for recovery of arrears of rent and damages.It was an admitted fact that the standard rent did not exceedRs. 100 per mensem. The actual rent under the contract of tenancywas Rs. 85 per mensem payable before the end of each month.The action was instituted on the 19th of October, 1970. The land-lord alleged that the tenancy had been duly terminated by noticeto quit dated 27th of July, 1970. He alleged that the defendanthad been in arrear of rent for three months and more after ifbecame due within the meaning of section 12A (1) (a) of the RentRestriction Act (as amended by Act No. 12 of 1966). The Com-missioner of Requests held that rents had been paid up to the endof April, 1970, and dismissed the plaintiff’s action, holding that thenotice to quit was invalid, because at the date it was given, thatis, 29th July, 1970, the tenant was not three months in arrear ofrent. On appeal to the Supreme Court Wimalaratne, J. dismissedthe appeal holding that at the date of the notice, the tenant wasonly two months in arrear of rent, and that therefore, the land-lord had not satisfied the requirements of section 12A (1) (a) ofthe Rent Restriction Act. The appellant obtained leave to appealto the Court of Appeal, and this appeal being one pending beforethe Court of Appeal on the 31st of December, 1973, was trans-ferred to this Court under the provisions of section 53 (1) of theAdministration of Justice Law 44 of 1973.
The question that arises for our consideration in this case iswhether the landlord who instituted action for the ejectment ofhis tenant living in a premises to which the Rent Restriction Actapplied, and the standard rent of which for a month did notexceed Rs. 100 must satisfy the court that at the time notice toquit was given to the tenant, the latter was three months or morein arrear of rent after it had become due ; it is contended thatthis is the implication contained in section 12A (1) (a) of the Act.For the appellant it is contended that a valid notice may be giveneven when there are no arrears of rent, and that action for eject-ment can be instituted at any time thereafter, if the tenant fallsinto arrears of rent for three months or more. Section 12A (1) (a)reads as follows : —
“ 12A (1) Notwithstanding anything in any other law, noaction or proceedings for ejectment of the tenant of any pre-mises to which this Act applies and the standard rent of
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TENNEKOON, C.J.—Mohideen v. Mohideen
which for a month does not exceed one hundred rupees shallbe instituted or entertained by any court unless where—
the rent of such premises has been in arrear forthree months or more after it has become due. ”
It seems to me that the combined effect of the general law rela-ting to contracts of tenancy and the provisions of section 12A (1)
is that the right to sue a tenant in ejectment will accrue tothe landlord when two conditions are satisfied, namely, that thecontract is termniated by due notice, that is, by a month’s notice,and secondly, that the tenant had fallen into arrears of rent inrespect of a period of three months or more. There is nothingin section 12A (1) (a) which alters the common law rule that amonthly tenancy may be terminated by a month’s notice. Thesection does not require that in order to terminate the tenancythe tenant should be three months in arrear of rent. This Sectiondeals with the right of instituting and maintaining an action forejectment, and it seems to me, that section 12A (1)(a) only
makes it incumbent on a landlord to establish one factmore than would ordinarily be necessary to succeedagainst an overholding tenant, viz., that the tenant hasbeen in arrear of rent for three months or more afterit became due. All that a landlord has to satisfy to courtis that he has brought the contract of tenancy to an end,and that the tenant has fallen into arrears of rent forthree months or more. A tenant whose contract of tenancy hasbeen terminated by a month’s notice, and still enjoys the protec-tion of the Act in the sense that the landlord cannot sue in eject-ment would lose that protection by failing to pay rent for threemonths or more : by so failing to pay rent he places himself out-side the limits of the protection given to him by the Act provi-ded of course that the notice to quit has not in the meantimebeen waived or a new contract of -tenancy constituted so as tomake a fresh termination of the tenancy necessary. In the pre-sent case notice to quit was given on the 29th of July, 1970, andthe notice was to expire on the 31st of August, 1970 ; on the datenotice was given to the tenant, he was only two months in arrearof rent. By the beginning of October, 1970, he was clearly in!arrear of rent for more than three months, and the right to suethe tenant accrued to the landlord, when both conditions weresatisfied, namely, that the contract had been terminated, and thetenant was in arrear of rent for three months. The action was
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instituted on 19.10.70, and there is nothing in the Rent RestrictionAct which prevents the court in these circumstances from givinga decree in ejectment to the landlord.
Two previous decisions of the Supreme Court have beenreferred to by Wimalaratne, J. in his judgment. First case isSamaraweera vs. Ranasinghe, (59 N.L.R. 395) and the second caseis Abdul Hassan vs. Calideen (74 N.L.R. 21) He appears to takeboth these cases as supporting the proposition that a landlord ofpremises to which the Rent Restriction Act applies and thestandard rent of which for a month does not exceed Rs. 100 willbe entitled to institute and maintain an action for ejectment ofthe tenant only if notice of termination of tenancy is given at atime when the tenant was in arrear of rent for three months ormore. In Samaraweera’s case the Court was dealing with theRent Restriction Act prior to its amendment in 1961 and in 1966.It is true that in this case the tenant was more than one monthin arrear of rent at the time notice to quit was given, but thecourt was not even called upon to examine the question whethernotice of termination of tenancy given at a time when there wereno arrears of rent was invalid. In fact the tenor of the judgment isto the contrary. Basnayake, C. J. stated as follows in the courseof his judgment : —
“In fact the section (13 (1) of the Rent Restriction ActNo. 29 of 1948) affords protection to the tenant against thelandlord’s exercise of his common law remedies. Once atenant loses this protection the landlord is free to institutelegal proceedings in ejectment. One of the ways in which thisprotection can be lost is by allowing the rent to be in arrearfor one month after it has become due. While protecting thetenant against ejectment except in certain circumstances thestatute has by implication imposed on him the obligation ofpaying rent even after the contract of tenancy is determinedif he is to continue to receive the protection. The obligationis that he must pay the rent on the due date. Now what isthe due date once the contract has been terminated ? Atcomjnon law rent becomes due on the date agreed on as thedate on which it should be paid. As the statute does not pres-cribe a date as the due date it must be presumed that theLegislature had the contractual date in contemplation. ”
In this case the court also rejected the submission that what ispayable by a tenant who is protected under the Act after his com-mon law contract of tenancy has been terminated was “ damages”and not “ rent ” and went on to hold that there can be arrears of
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rent even after the common law contract of tenancy has beenterminated. In Abdul Hassan’s case the tenant was three monthsin arrears when notice was given ; he thereafter paid up thosearrears, but when action was instituted he was again 3 monthsin arrears on that day. It was held that the notice to quit was avalid notice and that the plaintiff had satisfied the requirementsof law as contained in section 12A (1) (a) of the Rent RestrictionAct as amended by No. 12 of 1966, namely, that rent was inarrears for three months or more after it had become due andthat the contract had been duly terminated. This case, again,does not hold that for the purpose of section 12A (1) (a) a noticeto quit is invalid unless a tenant is in arrears for three months ormore on the date of giving the notice.
Indeed the trend of judicial authority has been in the oppositedirection. Samaraweera’s case is one such instance. Again in thecase of Cassim Hadjiar vs. XJmanlevve (67 N.L.R. 22), it was heldthat where, at the time when notice to quit rent-controlled pre-mises is given to the tenant, the tenant is not in arrear of rent,the landlord may nevertheless avail himself of the notice to quitif, at the time of institution of action subsequently, the tenant isin arrear of rent for one month after it had become due. Thiscase was decided prior to the amendments in the Rent Restric-tion Act, L. B. de Silva, J delivering the judgement stated—
“ The learned District Judge held that at the time thenotice to quit was given the defendants were not in arrears ofrent as it had been issued a few days after the plaintiffbecame the owner of the premises, and therefore held thatthe plaintiff was not entitled to give notice to quit as thedefendants were not in arrears of rent at that stage. Thereis no provision under the common law that a landlord cannotterminate a monthly tenancy by notice if the tenants werenot in arrears of rent, nor is there any provision in the RentRestriction Act which prevents a landlord from terminatinga tenancy by notice on that ground. The only provision in theRent Restriction Act applicable to the case was that a land-lord is not entitled to sue the defendants in ejectment unlessthe defendants were in arrears of rent for a period of onemonth after the rent became due before the action was filed.In this case the defendants have paid no rent at all to theplaintiff and they were in arrears of rent for a period of overone month after the rent became due when the plaintiff filedthis action. The defendants were thus not entitled to the pro-tection of the Rent Restriction Act, even if they are consider-ed to be statutory tenants of the plaintiff. ”
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The case of Abdul Hassan referred to earlier can. also beregarded as one following this same trend of decision.
I would accordingly hold that the Supreme Court was wrongin holding that the notice of termination of tenancy given by theappellant on the 29th of July, 1970, was invalid, because thetenant was not, on that day, in arrear of rent for three monthsafter rent became due. It is clear that all that the law requiresis firstly, that there had been a valid termination of thecommon law contract of tenancy, and secondly, that at the timeof the institution of the action the tenant had been in arrears ofrent for three months or more. These two facts have been esta-blished in this case and the appellant was entitled to succeed ijihis action for ejectment.
Justice Wimalaratne in the course of his judgment which isunder appeal makes a passing reference to the position under theRent Act, No. 7 of 1972 and says : “ In terms of section 22 (3) ofthis Act (he. the Rent Act of 1972) notice of termination oftenancy, in order to be valid can be given only after the tenanthas been in arrear for the requisite period. ” While this appearsto be undoubtedly so, it is sufficient to state that this case doesnot fall to be decided under the Rent Act of 1972, but under sec-tion 12A (1) of the repealed Rent Restriction Act ; and no argu-ment has been advanced before us to the contrary.
I would accordingly allow the appeal; the judgment of thelearned Commissioner and the judgment of the Supreme Courtaffirming it are set aside, and judgment is entered for theplaintiff for the ejectment of the defendant, for arrears of rentand damages from 1st May, 1970, at the rate of Rs. 85 per men-sem till the plaintiff is restored to possession of the premises insuit; the defendant will be entitled to credit for any paymentmade on account of rent and/or damages as from May, 1970.
In view of the fact that the plaintiff has failed in his claim forarrears of rent as from September, 1968, I would order that he benot entitled to the costs of the trial in the Court of Requests, buthe will be entitled to the costs of appeal in the Supreme Court,in appeal No. 23 of 1972 and for costs of the present appeal whichstarted as an appeal to the Court of Appeal and was latextransferred to this court.
Samerawickrame, J. I agree.
Udalagama, J. I agr^e.
Tittawella, J. I agree.
A. 22863 (9/76)
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SHARVANANDA, J.—Mohideen v. Mohideen
Sharvananda, J.
The relevant facts relating to the question of law involved inthis appeal fall within a small compass and are not in dispute,hut the point involved in the appeal is one of some importancein the law relating to the right of a landlord to eject his tenantunder the provisions of the Rent Restriction Act of 1948 as•amended by Act No. 12 of 1966.
The plaintiff instituted this action on 19.10.1970 for the eject-ment of the defendant, on the ground of arrears of rent from
10.1968. It is agreed that the premises are governed by the RentRestriction Act and that the authorised rent was Rs. 85 permonth. The learned Commissioner of Requests disbelieved theplaintiff’s evidence that the defendant had paid rent only up tothe end of September 1966. The Commissioner has held that renthad been paid by the defendant up to the end of April 1970 andthat the defendant was in arrears of rent for more than threemonths on the date of the institution of action viz. 19.10.1970within the meaning of section 12A (1) (a) of the Rent Restric-tion Act as amended by Act No. 12 of 1966. The Commissionerhas however dismissed the plaintiff’s action for ejectment, sincehe was of the view that as the defendant was not three monthsin arrears of rent on the date 29.7.70 when the notice to quit P 1was sent, the plaintiff’s action must fail. The view was up-held by the Supreme Court.
In this Court, counsel for the plaintiff did not seriously canvassthe findings of the Commissioner but was content to argue onthe basis of the Commissioner’s findings that the defendant wasnot in arrears of rent for three months after it had become dueon the date of the plaintiff’s notice of termination of tenancy PI,but that on the date of the institution of this action the defendantwas in arrears of rent for more than three months. He submittedthat neither the Common Law nor the provisions of the RentRestriction Act require that the tenant should be in arrears ofrent at the time the tenancy is sought to be terminated by avalid notice to quit. He argued that the relevant time when thetenant should be in arrears for the specified period is the timeof institution of action and not the date of the noticeto quit. He relied in support of his submission on thejudgment of L. B. de Sliva, J., in Cassim Hadjiar ‘ v.TJmamlevve 67 N.L.R. 22. In that case too the lowercourt held that the plaintiff landlord was not entitled to givenotice to quit as the defendant-tenants were not in arrears ofrent at that stage. On appeal, in setting aside the judgment of thelower court, this court relevantly observed : “ there is no provi-sion under the common law that a landlord cannot terminate amonthly tenancy by notice if the tenants were not in arrears ofrent, nor is there any provision in the Rent Restriction Act which
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prevents a landlord from terminating the tenancy by notice onthat ground The only provision in the Rent Restriction Act appli-cable to this case was that a landlord is not entitled to sue thedefendants in ejectment unless the defendants were in arrearsof rent for a period of one month after the rent became duebefore the action was filed. ” In that judgment this Court wasconsidering the application of section 13 (1) (a) of the RentRestriction Act of 1948 (Chap. 274) but the principle enunciatedtherein applies equally well when the amending Rest RestrictionAct No. 12 of 1966 is considered. The position is clarified whenthe true nature of a. monthly tenancy in common law and theimpact of the Rent Restriction Act on it are appreciated.
Common haw :
As was held in Fernando v. de Silva 69 N.L.R. 164 at 165“ a monthly tenancy is a periodic tenancy. It is a tenancy whichby agreement between the contracting parties runs from monthto month and is terminated by a month’s notice.” Wille in hisclassic—Landlord and Tenant (4th ed.) at page 42 sums up theposition thus—“ The essence of a periodic tenancy is, under thecommon law, that it continues for successive periods until it is-terminated by notice given by either party.” The notice must begiven ‘ a reasonable time ’ before the date on which it is desiredthat the tenancy or lease should terminate. A reasonable time inthe case of a monthly tenancy is a month, and the notice oftermination must be given so as to expire at the end of a monthly-period, for a monthly lease runs from month to month, and not.for broken periods. The notice need not refer to any reason forthe termination of the tenancy.
On the termination of the tenancy, it is the duty of the tenantto vacate the property let ; if he remains in occupation of theproperty, he is said to ‘ hold over ’ and is liable in damages tothe landlord, in addition to ejectment under order of Court. Sucha tenant can however lawfully be ejected only on an order ofCourt. The landlord has no right to take the law into his ownhands and eject such a tenant either forcibly or illicitly. As itis the duty of the tenant to restore the property let on thetermination of the tenancy, the tenant cannot resist an order ofejectment being granted against him by Court on proof of thetermination of the tenancy by a proper notice to quit. The land-lord has thus an unfettered right under the common law to ejecthis tenant on the termination of the tenancy. The ejectment ofsuch a tenant is based solely on the fact of the expiry of thetenancy. But if the contractual tenancy still exists, the landlordcannot obtain an order for ejectment of the tenant.
Under the Rent Restriction Act:
Since the enactment of legislation relating to rent restriction.,
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the tenant whose tenancy has been terminated has ceased to bein such helpless position of being completely at the mercy of thelandlord. Without curtailing the landlord’s right to terminatethe contract of tenancy by proper notice, the Rent Restrictionlegislation prohibited the landlord from instituting an action forejectment of a tenant except on the grounds stipulated therein.The Rent Restriction Act operates as a fetter on the action ofthe Court in granting a remedy. The effect of the Act is not todestroy the right to possession but to bar the enforcement of thatright by erecting a “ barrier in the way of the plaintiff’s right ofaction for possession ”—per Romer L. J. in Moses v. Lovegrave(1952) 1. A.E.R. 1279 at 1285. When a tenancy expires because ofeffluxion of time or notice, the contractual relationship betweenthe parties comes to an end ; but, by virtue of the provisions ofthe Rent Restriction Act, the tenant may remain in possession ofthe premises let to him, provided he does not render himselfguilty of any of the acts or omissions set out in section 12A or 13of the Rent Restriction Act as amended by Act No. 12 of 1966. Alandlord who has terminated the contract of tenancy but is una-ble to establish any of the grounds set out in the aforesaid sections12A and 13 will be denied the remedy of an order for possessionfrom the Court and in the circumstances the tenant, from beinga contractual tenant, becomes what is conveniently described asa “ statutory tenant ”. Statutory tenancy supervenes on thedetermination of the contractual tenancy and such a tenancy isdetermined on the tenant giving up possession or when the Courtmakes an order for possession on any of the grounds set out inthe Rent Restriction Act. The Rent Restriction Act gives thestatutory tenant the right to resist ejectment. He acquires astatutory right of irremovability except on the grounds postulatedby the Rent Restriction Act. The Act thus gives statutory tenantssecurity of tenure by preventing landlords f rom getting an orderfor ejectment from the Court except on the grounds providedfor by the Act. Thus notwithstanding the termination of thecontractual tenancy, the tenant is afforded a statutory right ofoccupation so long as he does not come within the pale of sections9, 12A and 13 of the Rent Restriction Act as amended by ActNo. 12 of 1966 and continues to perform his statutory obligationof regular payment of the monthly rent. The relevant provisionsof the Rent Restriction Act protects the tenant against the land-lord’s exercise of his common law remedy of ejectment. Thisprotection is enjoyed only so long as the statutory tenant performshis obligations. This protection is lost if he defaults in those. obligations and thereby enables the landlord who has terminatedthe contractual tenancy to institute proceedings in ejectment.Under the Rent Restriction Act a tenant who is in default of rentfor the stipulated period deprives himself of the statutoryprotection which he may ordinarily claim after the contract of
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tenancy has been duly terminated. “ But this does not relieve thelandlord of establishing the termination of the contract oftenancy either by due notice or by effluxion of time beforeclaiming a decree for ejectment ”■—per Gratiaen, J., in ChettinadCorporation v. Zaneek 55 N L.K. at 153.
Thus it is to be noticed that the condition precedent for theinvocation of the jurisdiction of Court to order ejectment of thetenant under the Common Law and the Rent Restriction Act isthe determination of the contractual tenancy by due notice toquit. This notice to quit, in the nature of the relationship, dependson the arbitrary whims of the landlord. The exercise of thiswhim remains, unfettered. But that is not the end ofthe story. To claim ejectment of the tenant the landlordhas however to establish certain other facts besides thedetermination of the tenancy. The effectual determinationof the tenancy need not be ascribed to those facts,but is a necessary step to achieve the object of ejecting thetenant. To claim ejectment under the Rent Restriction Acts,those facts have to be established, in addition to the fact oftermination of the contractual tenancy. Sections 12A and 13 ofthe Rent Restriction Act postulate the circumstances which inlaw entitle the landlord for the ejectment of the statutory tenant.But these additional facts or circumstances are independent ofand not relevant to the fact of termination of the tenancy. Thelaw does not require that the ground for statutory ejectment asset out in the Rent Restriction Act should be urged as the reasonfor the termination of the tenancy. The termination of thetenancy is attributable to the fact that the landlord does notdesire the tenancy to continue—he is exercising a right vestedin him by the contract of tenancy. He need not justify his termina-tion of the tenancy on any ground apart from that of hiscontractual right. It is only when he applies to Court for therelief of ejectment that he is required by the Rent RestrictionAct to establish any of the statutory circumstances to entitle himto his remedy of ejectment of the tenant. The Rent RestrictionAct has denied the process of law in aid of the landlord who has,without more, terminated the tenancy in the exercise of hiscontractual right. But that does not mean that the reason forthe termination of the tenancy should be referable to any of thegrounds which the Rent Restriction Act postulates for theentitlement to an order for ejectment. To sustain the prayer forejectment it is sufficient if besides the termination of the tenancyany such ground exist at the time of the institution of action.
The grounds for possession set out in the Rent Restriction Actare however subject to the common law doctrine relating towaiver. In the instant case that doctrine is not invoked by the
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defendant and hence it is not necessary to explore the scope of. it. But it is to be borne in mind that once a statutory tenancy hasbeen created the subsequent acceptance of rent by the landlorddoes not by itself affect the existence of the statutory tenancy.The payment and acceptance of the rent as such will not giverise to inference of a new contractual tenancy ; for, the landlordhas no option but to permit the tenant to remain in occupation.
In the course of the argument the correctness of the judgmentof Tambiah, J., reported in Bardeen v. de Silva 66 N.L.R. 547 andof Samerawickrame, J. reported in Ramzan v. Sardar 73, N.L.R.380 with regard to section 13 (1A) of the Rent Rescrition Actwas canvassed. Though lot remains to be said for the reconside-ration of the view expressed in those cases it is not necessary forthe purpose of this appeal to go into that question. In an appro-priate case the correctness of the view expressed therein willhave to be gone into.
Counsel for the defendant-respondent made a feeble attemptto resist the order for ejectment by invoking section 22 (3) ofthe Rent Act No. 7 of 1972 which came into operation on 1.3.1972.He argued that the provisions of section 22 of the Rent Act 1972are retrospective in their scope and nature and that on anapplication of section 22 the plaintiff’s action failed in limine. Itis not necessary to go into the question of the applicability ofsection 22 to the facts of the present case, for as has been rightlyheld in the case of Gunasekera v. Somapala 77 N.L.R. 141 sub-sections (1) (2), and (3) of section 22 are prospective and notretrospective in operation.
The defendant has not applied for the indulgence of Court asprovided by section 12 (a) (2) of Act No. 12 of 1966, namelysatisfying the Court that he “ has been in arrears on account ofillness or unemployment or other sufficient cause He has notsought it.
In the instant case, on the findings of the learned Commissionerthat the defendant was in arrears of rent for more than threemonths at the time of the institution of this action, the plaintiffis entitled to an order for ejectment of the defendant. The learnedCommissioner was in error in holding that as the defendant wasnot in arrears of rent for three months at the time notice to quitwas given by the plaintiff, the plaintiff was not entitled to anorder for ejectment of the defendant. It was sufficient in law thatat the time of institution of action the defendant was in arrears ofrent for three monhs or more after it had become due.
I would accordingly allow the appeal and agree with the orderproposed by the Honourable the Chief Justice in this appeal.
Appeal allowed