022-SLLR-SLLR-2002-3-NANDAWATHIE-SILVA-v.-MANURATNA.pdf
CA
Nandawathi Silva v. Manuratna (Weerasuriya, J.)
201
NANDAWATHIE SILVAv.
MANURATNA
COURT OF APPEALWEERASURIYA, J. (P/CA) ANDBALAPATABENDI, J.
CA NO. 712/93 (F)
DC MT. LAVINIA NO. 1653/LOCTOBER 26, ANDNOVEMBER 09, 2001
Rei Vindicatio Action – Tenant undertaking to vacate premises – Can the tenantcontract out of statute?- Agreement conditional – Can action in any event bemaintained?
The plaintiff-respondent instituted action seeking the ejectment of her tenant thedefendant-appellant on the basis that the defendant tenant has expressly undertakento leave the premises within one month and therefore she was a licensee underher. The District Court held in favour of the plaintiff-respondent.
On appeal –
Held:
The defendant-appellant being a tenant under the plaintiff is entitled to seekprotection under the provisions of the Rent Act. Such statutory protectioncomes to an end only upon (a) by handing back of the premises to the landlordor (b) by order of a competent court.
It is open to a tenant to recall a promise to surrender possession.
The common law rights of a landlord to institute action for an order of ejectmentof a tenant is curtailed by the provisions of the Rent Act.
A conditional agreement cannot form the basis for an order of ejectment.APPEAL from the judgment of the District Court of Mt. Lavinia.
202
Sri Lanka Law Reports
[2002] 3 Sri L.R.
Cases referred to:
Ibrahim v. Mansoor – 54 NLR 217 (DB) at 224.
Nugera v. Richardson – 51 NLR 116.
Dep v. Nagaratnam – 56 NLR 262.
Dr. J. de Almeida Gunaratne for substituted defendant-appellant.Gayan Perera for plaintiff-respondent.
Cur. adv. vult.
January 07, 2002
WEERASURIYA, J. (P/CA)
The plaintiff-respondent brought this action against the defendant-appellant seeking her ejectment from the premises described in theschedule to the plaint. The defendant-appellant in her answer whilstdenying averments in the plaint prayed for dismissal of the action.
This case proceeded to trial on 11 issues and at the conclusionof the case learned District Judge by his judgment dated 16. 09. 1993,entered judgment for the plaintiff-respondent. It is from the aforesaidjudgment that this appeal has been preferred.
At the hearing of this appeal, the case of the defendant-appellantwas presented on the following basis :
That the document dated 16.11.1983 by which the defendant-appellant agreed to vacate the premises in suit is obnoxiousto the provisions of the Rent Act.
That the said document (P2) establishes an interest in landand therefore in terms of section 2 of the Prevention of FraudsOrdinance it should be notarially attested.
ot
10
CA
Nandawathie Silva v. Manuratna (Weerasuriya, J.)
203
(c) That the said agreement being conditional, the plaintiff-respondent has no legal basis to seek the ejectment of thedefendant-appellant.
In order to consider the above submissions, it is necessary to setdown the factual position briefly.
The plaintiff-respondent based this action on the ground that in termsof the document dated 16.11.1983, the defendant-appellant has expresslyundertaken to leave the premises in suit within one month from thedate thereof, and therefore she (the defendant-appellant) was a licenseeunder her.
It is common ground that the defendant-appellant was a tenant underLidy Magdelene Welaratne and the plaintiff-respondent purchased thepremises by deed of conveyance bearing No. 24 dated 22. 07. 1983attested by S. I. Wijeratne, NP. The impugned agreement had beenentered into on 16. 11. 1983 and therefore, it would be clear that ithad been effected after the purchase of the property by the plaintiff-respondent. The defendant-appellant had undertaken to hand over thepremises within one month from the date thereof. It is significant thatplaintiff-respondent sought to assert that prior to the purchase of thepremises in July, she had discussions with the defendant-appellant inrespect of purchase of this property. The defendant-appellant tooconceded that prior to the agreement she had discussions with theplaintiff-respondent, nevertheless it was never meant to suggest thatthey took place prior to the purchase of the premises in July.
The contention that the document (P2) is illegal is based on theproposition that the tenant can never contract out of the protectionafforded in terms of the Rent Act. The defendant-appellant being atenant under Magdelene Welaratna is entitled to seek protection underthe provisions of the Rent Act. It is to be mentioned that such statutoryprotection comes to an end only upon (a) by handing back of thepremises to the landlord or (b) by order of a competent court. Therefore,
20
30
40
204
Sri Lanka Law Reports
[2002] 3 Sri L.R.
it is open to a tenant to recall a promise to surrender possession.(vide Ibrahim Saibo v. Mansoo/<1) at 224).
It is to be observed that common law rights of a landlord to institute 50action for an order of ejectment of a tenant is curtailed by the provisionsof the Rent Act.
It was never the position of the plaintiff-respondent that the defendant-appellant has attorned to her. In the circumstances, the protection thedefendant-appellant could claim against her landlord in terms of theRent Act is equally applicable against the plaintiff-respondent whopurchased the premises. However, this restriction is not applicable tocompromises effected in a pending action as seen from the followingcases :
In Nugera v. Richardsonf2) it was held that the limitations placed 60on the jurisdiction of a court by the provisions of the Rent RestrictionOrdinance in an action against a tenant who is unwilling to vacatethe premises do not in any way fetter the right or the duty of thecourt to give effect to lawful compromise willingly entered into in apending action between a landlord and his tenant.
In Dep v. Nagaratnard3) it was held that although parties cannotby agreement give the courts jurisdiction which the legislature hasenacted that they are not to have, nevertheless a compromise afteraction which is advantageous to a party and secured to him by adecree subsequently entered of consent is not void as offending the 70prohibition against waiver.
Therefore, it is manifest that the aforesaid agreement is ineffectiveas it seeks to contract outside the protection of the Rent Act witha person to whom the defendant-appellant has not even attorned asher lawful tenant.
CA
Nandawathi Silva v. Manuratna (Weerasuriya, J.)
205
The contention that the agreement was conditional on the defendant-appellant obtaining a house from Jayawadanagama has to be acceptedon the testimony of the defendant-appellant. This position is seen ona close examination of the agreement itself marked P3. The defendant-appellant asserted that she made it known to the plaintiff-respondentof her desire to return the money she obtained, on her failure to obtainthe house from Jayawadanagama which was not heeded. A conditionalagreement cannot form the basis for an order of ejectment.
In view of the above material, the other contention that the agreementcreates an interest in land within the meaning of section 2 of thePrevention of Frauds Ordinance, need not be examined.
For the above reasons, I set aside the judgment of the learnedDistrict Judge dated 16. 09. 1993.
However, I make no order as to costs.
BALAPATABENDI, J. – I agree.
Appeal allowed.
80