006-NLR-NLR-V-74-M.-C.-ABDUL-HASSAN-Appellant-and-S.-M.-CALIDEEN-Respondent.pdf
1/assan r. C'al idem
1970Present : Weeramantry, J.
yi. C. ABDUL HASSAN, Appellant, and S. >1. CALIDEEN, Respondent
S.C. 11 j GO—C. E. Colombo, 9573SjE. E.
Rent Restriction Act, as amended by .1 i ts Xos. 10 oj 1061 and 12 of 1966—Sections12A, 13 (1A), 13 [JR)—Xotice to quit—Subsequent default in payment of rent—Claim for ejectment of tenant on that ground—Validity of the notice to quit.
Whoro a landlord institutes action claiming ojcctmcnt of his tenant on theground that tho tonnnfc has boon in arrears of rent for a period of throo monthsor more after it became due, tho notico given by the landlord requiring thotonnnt to quit nftor a specified dnto is valid oven if a socond dofault in payment■ of rent occurred aftor payment of the arrears of ront referred to in tho noticoto quit was made on a dato subsequent to tho dato' of termination of tenancy
1 IJ910) 42 X. R. R. 136.
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WT2ERAMAXTRY, J.— Hasson v. Cali,hen
specified in tho notice to quit. In such a case it cannot ho contended by tliotoimnt that, inasmuch as the poriud of arrears referred to in tho nuticu to qu'tis not tho period relied upon as hoing tlio period of arrears at- tho tiino of thoplaint, tho landlord cannot luivo and maintain his action. Tho ground on whichan action in ojoctment is filed need nut necessarily bo tho ground sot out in thonotice determining tho tenancy.
On 2nd May I9GG, pluintifT(landlord) served notice On tho defendant (tonnnt)requiring him to quit- tho rented premises by end of August l'JOG on the groundthat defendant was in arrears of rout for more than threo months. On 4thMay I9G7 defendant paid all rents dao up to ond of December 19GG. Xo routwas pair! thoroaftor. On 1st Juno I9G7 tho present action in ejectment wasfiled.
Held, that tho nolieo to quit that was given on 2nd May 19GG was a validnotice for tho purposes of tho present action and that tho plaintiff satisfiedtho requirements of the law, as contained in tho Kent Restriction (Amondmont)Act Xo. 12 of 10GG, namely that tho rent had been in arrears for threo monthsor moro aftor it had boeoino duo.
./VpPEAL from a judgment of the Court of Requests, Colombo.
Siva Rajaralnam, for tlio defendant-appellant-.
31. T. 31. Sivardeen, for tlie plaintiff-respondent.
September 12, 1970. Week a m axt n v, J.—
In this ease the plaintiff comes into Court claiming the ejectmentof the defendant on the ground that the defendant- has been in arrearsof rent for a period of three months or more after it became due. Thepremises in suit are governed by the Rent Restriction Act.
It would appear that all rents had been paid up to (he 80th of April1965 and that thereafter at the instance of the defendant the RentControl Board made order on the loth of October 19G5 fixing tlie autho-rised rent at Rs. 55/- per month. On tlie basis of this fixation of thorent the tenant filed action against tho landlord on 29th October 1965to recover excess rent that had been paid. Ife claimed a sum ofRs. 534'48. The landlord filed answer admitting that he had recovereda sum of Rs. 430'6S in excess of the authorised rent. However, havingregard to the fact that no rent had been paid after 80th April 1965,lie made a claim in rcconvention on the basis that the excess sum ofRs. 430'6S was exhausted on account of rent due subsequent to 30tliApril 1965, and that over and above this sum there was due to him asum of Rs. 9:32 on account of rent for December 1965 and Rs. 55/- onaccount of rent for January 1966, totalling a claim in rcconvention ofRs. 64 32.
On 2nd May 1906 the plaintiff served the defendant- with notice toquit by the end of August, and on 4th May 1907 the defendant paid asum of Rs. 669 32 to the plaintiff. This sum of Rs. 669 .32 covered allrent due up to the end of December 1906.
IVEEKAMAXX-RY, J.—J/ussaa r. Calvlccn
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Action was filed on 1st June 1967.
It wilt be seen that at the date of filing of plaint rent had not beenpaid for any period subsequent to .‘list- December 1906. Even if, asthe defendant states, the rent for each month became payable onlyon the 10th day of the succeeding month, the defendant was therefore,over three months in arrears of rent at the time when action wasfiled-
It will be seen also that the period for which the defendant was inarrears at the time of the action was not covered bjr the payment ofRs. GG9'32 in May 1907. This sum covered rents due only up to 31stDecember 1966 whereas on the date of the filing of action on 1st June1907 rent was in nrrear from January 1907.
At the argument in appeal the defendant-appellant urges thatinasmuch as the period of arrears referred to in the notice to quit is not theperiod relied upon as being the period of arrears at the time of the plaint,the plaintiff cannot have and maintain his action. It is submitted thatsince the sum due in respect of the period referred to in the notice hadbeen paid prior to the institution of action, it is not competent to theplaintiff to maintain the action upon the basis of a period of arrearsother than that referred to in the notice to quit. I am afraid this sub-mission cannot succeed as it is well established that the ground on whichan action is filed need not necessarily be the ground set out in the noticedetermining the tenancy.
In this case the learned judge has held that the defendant lias failedto bring himself within the provisions of section 13 (IB) of the RentRestriction Act as amended by Act No. 10 of 1961 inasmuch as he hasfailed to prove to the learned judge’s satisfaction that he had falleninto arrears in consequence of illness, unemployment or other sufficientcause. While not contesting the correctness of this finding, learnedcounsel for the defendant-appellant seeks to draw some support from thejudgment of Samcra wickramc, J. in Mohumed v. Wahab 1. In that caseSamcrawickramc, J. drew attention to the fact that although Act No. 10of 1961 contained two provisions 1A and IB which gave certain rights• to the tenant which had not existed before, Act 12 of 1966 made thatprovision inapplicable to premises where the standard rent did notexceed Rs. 100/- per month, and introduced in its place a new section12A. That provision reproduced the advantages given to the tenantby the former sub-section IB but did not give to the tenant the privilegeslie had enjoyed by virtue of the former sub-section 1 A. Samera wickramcJ. took the view that it was unlikely that the privileges conferred bysub-section 1A would continue to be applicable.to the tenants of premisesover Rs. 100/- in value but should be denied to tenants of premisesbelow Rs. 100/- in value. On this basis he held that the privilegeformerly available to all classes of tenants under the provisions of sub-section 1A of tendering to the landlord all arrears of rent before the
« i isr,a 12 ,v. l. R. .m.24
WEEJRAMANTItY, J.— Uus-san v. Caliclccn
date of termination of the tenancy ns specified in the notice of terminationwas applicable to tenants of premises whose rent- was below Rs. 100/-per month.
This decision docs not avail the appellant in the present case for itis not his position that the rent which was in arrears at the date of thenotice was tendered by him before the date of termination of tenancyas specified in that notice. The date of termination of tenancy setout in that notice is the end of August 19G0. Xo payment of rent wasmade between the date of that notice and August I960, for the nextpayment was'made only in May 19G7. The judgment referred to willtherefore not avail the defendant.
Apart from these two provisions 1 have not been referred to any otherprovision of the Statute which produces such a result.
Consequently I hold that the notice which had been given on 2ndMay 19GG was a valid notice and that the landlord satisfied the require-ments of the law, as contained in the Act of 19GG, namely that the renthad been in arrears for three months or more after it had become due.For these reasons I affirm the correctness of the learned Judge’s findingsand dismiss the appeal with costs.
Appea l d ism issed.
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