032-NLR-NLR-V-76-M.-J.-M.-NILAMDEEN-Appellant-and-D.-R.-C.-NANAYAKKARA-Respondent.pdf
Nilamdeen v. Nanayalckara
ies
[In the Court of Appeal of Sri Lanka]
. Present: Fernando, P., Sirimane, J., and Siva
Supramaniam, J.
M. J. M. NILAMDEEN, Appellant, and D. R. C.NANAYAKKARA, Respondent
Appeal No. 22 of 1972S. C. 90/70—C. R. Colombo, 1S4/ED
Rent Restriction Act (Cap. 274)—Section 12A (1) (a)—Tenant inarrears of rent—Notice to quit—Payment of arrears of rentthereafter, before institution of action—Liability of the tenantnevertheless to be evicted—Interpretation of statutes—Ttoo rulesof construction:
Defendant was a tenant of the plaintiff paying a monthly rentalof Rs. 34.33. He had allowed the rent to fall into arrear for threemonths or more before notice was served on him to quit the rentedpremises. He paid all arrears after receipt of the notice and' beforethe present action in ejectment was instituted on March 16, 1969.
Held, that the defendant was liable to be evicted despite hispayment of the arrears of rent before the action was instituted. Oncea tenant has fallen into arrear in the payment of rent, he forfeitsthe protection against eviction afforded by the Rent RestrictionAct.
Mohamed v. Wahab (72 N. L. R. 333) overruled.
Although the Rent Restriction Act was amended after the dateof the Divisional Bench decision 'in Dias v. Gomes—(1954) 55N. L. R. 337—by Acts Nos. 10 of 1961 and 12 of 1966, the legislatureretained the expression “ has been in arrear … after it has becomedue ” which had been the subject of interpretation by the DivisionalBench. It is a well-known rule, of construction that where thelegislature uses in an Act a legal term which has received judicialinterpretation, it must be assumed that the term is used in thesense in which it has been judicially interpreted. There is alsoanother rule of construction that where the words of an old statuteare made part of a new statute, the legal interpretation which hasbeen put upon the former by courts of law is applicable to thqsesame words in the new statute.
A.PPEAL from a judgment of the Supreme Court.
A. Sivagurunathan, for the defendant-appellant.
Bimal Rajapakse, for the plaintiff-respondent.
Cur. adv. vult.
LXXVI—8f*—A 08800—2,808 (7/73)
170
FERNANDO, P.—Nilamdeen v. NanayakJcara
May 14, 1973. Fernando, P.—
Leave to appeal was granted in this case on account of a conflictof decisions in the Supreme Court.
We need set down below only such facts of the case as arerelevant to the determination of the question of law we arecalled upon to settle. The plaintiff had let to the defendant thepremises from which ejectment is sought at a monthly rentalof Rs. 34.33 payable on the first day of each month. Rent up tothe end of May 1967 had been paid on the due dates. Allegingthat the payment of rent thereafter has been in arrear for threemonths or more after it has become due, the plaintiff on December28, 1968 gave to the defendant notice to quit the premises atthe end of January 1969. This action was filed on March 16, 1969alleging failure to quit as noticed and demanding ejectment andpayment of arrears and damages. It is admitted that (1) thedefendant had allowed the rent to fall into arrear for threemonths or more before the service of notice to quit and (2) thedefendant paid all arrears after receipt of the notice and beforeinstitution of this action.
The contention for the defendant that he is not liable to beejected is based on a judgment of Samerawickrame J. inMohamed v. Wahab1 (1969) 72 N. L. R. 333 that, in a casegoverned by section 12A (1) (a) of the Rent Restriction Actwhere a landlord seeks ejectment of his tenant on the groundthat rent has been in arrear for three months or more after it hasbecome due, the tenant is not liable to be ejected if, before thedate of the institution of action, he tenders to the landlord therent due.
The learned Commissioner of Requests, although he was ofopinion that the defendant had allowed the payment of rent byhim to fall into arrear for three months or more within themeaning of that expression as understood for many years after1954, properly felt that he had to submit to the judgment inMohamed v. Wahab (supra). On appeal by the plaintiff to theSupreme Court, Thamotheram J. set aside the judgment of theCourt of Requests and decreed ejectment of the defendant,preferring to follow two decisions later in point of time toMohamed v. Wahab. These are Samarakoon v. Gunadasa3 (1970)74 N.L.R. 62, a decision of Pandita-Gunawardene J. and ParackV. Fasi3 (1971) 75 N.L.R. 7, a decision of Silva J. who had bothdeclined to follow Mohamed v. Wahab.
1 (1969) 72 N. L- B. 333.' (1970) 74 N. L. B. 62.
(1971) 75 N. L. B. 7.
FERNANDO, P.—Nilamdeen v. Ifanayakkara1^1
We must point out here that in Dias v. Gomes1 (1954) 55 N.L.R.337, a Divisional Bench of three judges of the Supreme Court(Nagalingam A.C.J., Pulle J. and Swan J.), to which an appealhad been referred in view of the existence then of a conflict ofdecisions, held that, once a tenant has fallen into arrear inpayment of rent (for the period specified in the Rent RestrictionAct) after it has become due, he forfeits the protection givento him by the Act. It actually overruled a decision of Nagalin-gam J. himself in George v. Richard * (1948) 50 N.L.R. 128 whichhad held that, where arrears of rent are tendered before theinstitution of action, the landlord is not entitled to maintainan action for the ejectment of the tenant.
Although the Rent Restriction Act was amended after thedate of the decision in Dias v. Gomes (supra) by Acts Nos. 10 of1961 and 12 of 1966, the legislature retained the expression “ has
been in arrearafter it has become due” which had been
the subject of interpretation by the Divisional Bench. In Jay v.Johnston3 (1893) 1 Q. B. D. at 28, Lord Coleridge C. J. called ita well-known rule of construction that where the legislatureuses in an Act a legal term which has received judicial inter-pretation it must be assumed that the term is used in the sensein which it has been judicially interpreted. So again, “wherethe words of an old statute are either transcribed into or byreference made part of a new statute, it is a rule of constructionthat this is done with the object and intent of adopting anylegal interpretation which has been put upon them by courtsof law, the same words being used in order that everything thathad been settled before as to their construction should remainsettled without fresh litigation ”—per James L.J. in Dale’s Case*(1881) 6 Q.B.D. at 453. Indeed, when Nagalingam A.C.J. agreedto the overruling of his own earlier judgment he did so—to use.his own words—“ with a view to set at rest once and for all thecontroversy in respect of the point of law. ”
In Samarakoon v. Gunadasa (supra), Pandita-Gunawardene
J., in a considered judgment, has explained, with reference toearlier decisions of the Supreme Court, why he held that oncea tenant has fallen into arrear in the payment of rent he hasforfeited the protection against eviction offered by the RentRestriction Act. It is unnecessary to repeat here the reasons,he has set out. We would respectfully vagree with his opinionand that of Thamotheram J. in the appeal now before us. Bothof them applied the reasoning in the Divisional Bench judgment.Although there is no specific reference to the Divisional Bench 1
1 (1954) 55 N.L.B. 337.a (1893) 1 Q. B. D. at 28.
* (1948) 50 N. L. B. 128.* (1881) 6 Q. B. D. at 453.
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FERNANDO, P.—Nilamdeen v. Nanayakkara
case in the judgment of Silva J. referred to above, the circum-stances (i) that he preferred to follow Samarakoon v. Gunadasaand declined to follow Mohamed v. Wahab and (ii) that he heldthat the material point of time for the determination of thequestion whether a tenant is in arrear in payment of rent isthe time the cause of action arose are indication enough that hedid not recognise as valid the narrowing of the decision of theDivisional Bench attempted in Mohamed v. Wahab.
Samerawickrame J., after referring to the amendments madeto the Rent Restriction Act by Act No. 12 of 1966 and drawingattention to the disappearance of sub-section (1A) of section 13in its application to premises the monthly rent of which doesnot exceed one hundred rupees, considered it improbable (1)that the legislature intended that the tenants of premises themonthly rent of which is below one hundred rupees should beplaced in a worse position in this regard than tenants of premisesthe monthly rent of which is in excess of that sum or (2) thatit intended to put them into a position of greater disadvantagecompared to their position before the 1966 amendment. It wasfor those and like reasons that he attempted to distinguish theDivisional Bench decision and to narrow its application. As tothese reasons, we find ourselves in much the same position asPandita-Gunawardene J. found himself in Samarakoon v. Guna-dasa. We do not think, with all respect to Samerawickrame J.,that we are free to speculate upon the intention of the legislature.We remind ourselves of the words of Lord Watson in Salomonv. A. Salomon & Co. Ltd.1 (1897) A.C. at 38 :—“Intention of theLegislature is a common but very slippery phrase whichpopularly understood may signify anything from intentionembodied in positive enactment to speculative opinion as to whatthe legislature probably would have meant, although there hasbeen an omission to enact it. In a Court of Law or equity, whatthe legislature intended to be done or not to be done can onlybe legitimately ascertained from, what it has chosen to enact,either in express words or by reasonable and necessary impli-cation. ” We do not think it profitable to speculate upon theprobable intention of the legislature when the languageemployed by it, particularly after the interpretation placedthereon by the Divisional Bench judgment referred to above,cannot now be said to admit of any serious doubt. We wouldaccordingly overrule the decision in Mohamed v. Wahab {supra).
This appeal is dismissed with costs.
Appeal dismissed.
(1897) A. O. at 38.