OOR v. UMMA

020-SLLR-1984-V1-MANSOOR-v.-UMMA.pdf


CA
Mansoor v, Umma
151
MANSOORv.UMMA ■COURT OF APPEAL.
H. A, G. DE SILVA, J. AND G. P S. DE SILVA, J.
C A. (S. C.) 8/78-D. C. GALLE- L/8898.
JANUARY 10. 1984.
Rent Act. No. 7 of 1972-Action for ejectment of renant-Denial of contract oftenancy by tenant-Whether' notice to quit by landlord is necessary under thecommon law,f
The plaintiff-respondent filed action against the defendant to have him ejected fromthe premises in suit on two grounds, without serving on him a notice to quit. Thedefendant disclaimed tenancy.
Heldr
(11 Once a tenant denies the contract of tenancy, the question of senring on him anotice to quit does not arise. The defendant is not entitled to a valid notice to quit,since he has himself by his denial repudiated the contract of tenancy and therebyterminated it.
Conduct which shows denial of title antecedent to the plaint is not necessary inorder to relieve the plaintiff of the requirement of giving notice. Mere denial of
tenancy is sufficient.
Cases referred to
Peirisv. Fernando,, ft976} 78 N, L. R. 206. .
Muttu Natchia et at v. Patuma Natchia et al. (1896) 1 N.L.R. 21.
Edirisinghev. Patel and others. (1979) 79(1)N.L.R. 217. 228.
Sundra Ammal v. JuseyAppu, (1935) 36 N.LR. 400.
(51 Pedrickv. Mendis. (1981) 62 N.LR. 471
(6) Hassan v. Nagaria. (1973) 75 N.LR. 335.
APPEAL from an order of the District Court of Galle.
A. Mampitiya for 1st defendant-appellant.
N.-Oevendra with Uyanage for plaintiff-respondent.
Cur. aetv. vult
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{1984] 1 SriL R.
February 17. 1984.
P. S. DE SILVA, J.
The plaintiff brought this action for the ejectment of the 1stdefendant, who was her tenant, from the premises in suit, on twogrounds
sub-letting to the 2nd defendant (section 10 (5) of the RentAct, No. 7 of 1972) ;
deterioration of the condition of the premises owing to actscommitted by the 1st defendant (section 22(1 )(d) of theRent Act. No. 7 of 1972).
After trial, the District Judge held against the plaintiff on the issueof sub-letting of the premises while he found in favour of the plaintiffon the ground of ejectment based on section 22(1 )<d) of the RentAct. The District Judge made Order, inter alia, for the ejectment ofthe 1st defendant and the appeal is against this judgment anddecree. I may add that the 2nd defendant died while the action waspending.
Mr. Mampitiya, Counsel for the 1st defendant-appellant, did notchallenge the findings of the Trial Judge on the issue based onsection 22f 1 )(d) of the Rent Act, nor did he canvass any of the otherfindings on the facts. Counsel's only submission was that theplaintiff cannot maintain this action inasmuch as the contract oftenancy was not terminated. It is not in dispute that the plaintiff hadfailed to give notice to the 1st defendant, of the termination of themonthly tenancy. On the other hand. Counsel for theplaintiff-respondent relied on the following issue raised on behalf ofthe plaintiff
'Since the 1 st defendant denies the contract of tenancy withthe plaintiff, as alleged in the plaint, is the lawful termination of thecontract necessary ?'
The 1 st defendant in his answer, while denying that there was acontract of tenancy with the plaintiff, specifically pleaded that thecontract was with the plaintiff's brother, one A. R. A. Majeed. In hisevidence, too, the 1 st defendant took up the same position. At thehearing before us, Mr. Mampitiya conceded that the 1st defendant
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Mansoor v. Umma (G. P. S. de Silva. J.)
153
has disclaimed tenancy. Nevertheless, Counsel strenuouslycontended that no cause of action arises to sue the tenant inejectment unless there is, at (east, an averment in the plaint that thecontract of tenancy has been duty terminated. Mr. Mampitiya furthersubmitted (and this was his main submission) that a mere denial oftenancy is not sufficient to relieve the landlord of his obligation in lawto terminate the contract of tenancy but there must be, to useCounsel's own words, 'a denial of title antecedent to the plaint*
The first case cited by Mr. Mampitiya in support of his submissionsis Pieris v. Fernando (1). This case is certainly an authority for theproposition that an action for ejectment of a tenant based on section22(1 )(d) of the Rent Act, cannot succeed unless the landlord hasgiven to the tenant, a valid notice terminating the contract oftenancy..But what is significant for the purposes of the presentappeal is that the question whether a tenant who denies tenancy isentitled to a notice to quit before action in ejectment is instituted, didnot arise at all for consideration in Pieris v. Fernando {supra).
The case on which Mr. Mampitiya relied strongly was MuttuNatchia et al v. Patuma Natchia et ai, (2). In a very short judgment,Browne, J. stated thus :
'The plaint in this case sufficiently averred that the defendant,after entering and holding as tenant of the plaintiff, had disclaimedto hold of him and put him at defiance. It was unnecessarytherefore that the plaintiff, as he did, should have averred or havesought to prove any notice to quit given by him to defendant, anddefendant, was not entitled to have the action dismissed becauseno valid notice was given.
The decree of dismissal must therefore be set aside and theaction remitted for trial'
It will be seen that nowhere in this judgment is there a reference to*a denial of title' nor does fhe teamed Judge speakbf the conduct ofthe defendant prior to the institution of the action. In my view, diejudgment proceeds on the basis of a denial of tenancy • by the. defendant and does nofpostulate the requirement of a denial of titleantecedent tofhe fftrngof action. It is true that in the summary of thefacts prepare^'ty.the editor of the New Law Reports, there is areference to the .defendants questioning the plaintiffs’ title and the
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defendants setting up title in themselves but it must be noted thatthe judgment itself does not proceed on that basis. What is more,none of the subsequent cases refer to such a requirement.
The reason why a notice to quit is not' necessary when a tenantdenies tenancy, was succinctly stated by Sirimanne, J. in Edirisinghev. Patel and others (3):
'Learned Counsel for the respondent cited some cases where ithas been held that a tenant who denies the tenancy is not entitledto a notice to quit. The reason why such notice is not necessaryand why a defendant who denies a tenancy cannot take such aplea is because by his denial he repudiates the contract of tenancyand thus terminates it. It is, therefore, not open to the defendantwho has himself terminated the contract, to say that the plaintiffhas not terminated it by a valid notice. A contract of tenancy canbe terminated not only by a valid notice but also by a repudiation ofthat contract .•. . . .'{The emphasis is mine.)
Mr. Mampitiya referred us to the case of SundraAmmal v. JuseyAppu (4). In this case, the question was not argued by Counsel inview of the decision in Muttu Natchia v. Patuma Natchia (supra). Itmerely followed the 1 N.L.R. case.
The next case cited on behalf of the appellant was Pedrick v.Mendis (5). K. D. de Silva, J. citing Muttu Natchia v. Patuma Natchia(supra) took the view that:
'it is the common law which requires that a monthly tenancyshould be determined by a month's notice. However, the commonlaw also provides that a tenant who disclaims tenancy is notentitled to a valid notice to quit.' (The emphasis is mine.)
finally, Mr. Mampitiya cited Hassan v. Nagaria (6), whereinSamarwickrame, J. expressed himself thus :
'In this case, the defendant-appellant has denied tenancy underthe plaintiff-respondent and the latter had to prove tenancy in theaction. In view of the authorities that have been cited to me, I holdthat no notice to quit need have been averred or proved in thecircumstances Of this case."
CA•Wijesingfte v. The State. . .,155
Thus it is seen that the submission of Mr. Mampititya, that theplaintiff, ,in the instant case, should, at least, have averred in hisplaint that notice to quit was given to the defendant, is not entitled tosucceed.
On a consideration of the decisions cited before us, it seems to methat ther&b no authority which supports the proposition that in orderto dispense with a notice to quit, a mere denial of tenancy is notsufficient but that there must be the further requirement of conductwhich shows a denial of title. The trend of the decisions is that oncethe defendant in a tenancy action denies the tenancy, the questionof terminating the contract of tenancy by a notice, does not arise. Iam, therefore, of the 'view that the appeal fails and must be. dismissed with costs. 1
Before I conclude, I wish. to point out that the question ofdispensing with the requirements of a statutory notice of terminationof tenancy (as distinct from the notice required under the commonlaw), did not arise for consideration on this appeal.
A. G. DE SILVA, J.-l agree.
Appeal dismissed.