P.J. CHACKO Appellant ,and D. K. MODY ,Respondent

084-NLR-NLR-V-54-P.J.-CHACKO-Appellant-and-D.-K.-MODY-Respondent.pdf

354
SWAN J*.—Chacho v. JSdody
1952Present: Swan J.
P. J. CHACKO, Appellant, and D. K. MODY, RespondentS. C. 56— C. R. Colombo, 30,846
Landlord and tenant—Notice to quit—Subsequent extension of time—Tenant's liabilityto pay rent—Rent Restriction Act, No. 29 of 1948, 8. 13 {!) (a).
When a tenant who has been given due notice to quit asks for and obtainsan extension of time, he must continue to pay rent during the extended period.Failure to do so renders him liable to be 3ued in ejectment under section 13(l)(a) of the Rent Restriction Act.
./^.PPEALi from a judgment of the Court of Requests, Colombo.
H. W. Jayewardene, for the defendant appellant.
H. W. Tambiah, with N. C. J. Rustomjee, for the plaintiff respondent.
Cur. adv. wit.
^November 14, 1952. Swan J.—
In this case the plaintiff-respondent sued the defendant-appellant tohave him ejected from premises No. 354, Skinners Road North, and for■the recovery of Rs. 70/98 as arrears of rent up to 30.11.50 and damages atRs. 23/66 a month from 1.12.50.
The plaintiff claimed the right to eject the defendant without theAuthorization of the Board upon two grounds—.
that rent had been in arrear for one month after it had become due >
and.-
that the defendant had given notice to quit.
S WAIST J.—Ghacko v. Mody
355
The notice relied upon was an undertaking in writing (marked P2 at thetrial) dated 12.8.50 whereby the defendant agreed to vacate and givepeaceful possession of the premises No. 354, Skinners Road North, on30th November, 1950.
Tn his answer the defendant whilst admitting the writing referred toabove stated that it was given by him on condition that the plaintiff wouldpay him Rs. 1,000 before he left and would also provide him with alter-native accommodation. He further stated that he had been paying rentregularly up to the end of August, 1950, that on 18.9.50 the plaintiff un-lawfully stopped the water supply to the premises thereby causinghim loss and damage to the extent of Rs. 40 per day. He claimed inreconvention a sum of Rs. 5,360 as damages from 18.9.50 to 31.1.51.
The plaintiff filed a replication in which he stated that he did notagree to provide the defendant with alternative accommodation and thatthe sum of Rs. 1,000 was to be an ex gratia payment, provided the defend-ant gave vacant possession on 30.11.50. With regard to the claim inreconvention the plaintiff stated that there was no water service to thepremises in question, that the plaintiff gave the defendant a kitchen touse free of rent on the express condition that the defendant would giveit up when required to do so ; that the defendant surrendered possessionof the kitchen and was thereafter permitted to draw water through arubber tube for a few days, and that the plaintiff, as he lawfully might,prevented the defendant from so drawing water thereafter.
The parties went to trial on the following issues :—
Did the defendant on or about 12.8.50 give the plaintiff notice
that he will vacate the premises in suit on or before 30.11.50 ?
Was the contract of tenancy determined by the said notice ?
Has rent been in arrears for a month after it became due ?
If issue No. 1 is or if issues 2 and 3 are answered in the affirmative,
is the plaintiff entitled to a writ of ejectment ?
What amount is due to the plaintiff on account of arrears of rent and
damages ?•
Was the notice referred to in paragraph 4 of the plaint given in the
circumstances set out in paragraph 4 of the answer ?
{£) Is such a notice a notice that is contemplated by section 13 (1) (b)of the Act ?
<8) Did .the plaintiff on or about 18.9.50 cut off the water supply tothe defendant’s premises ?
(9) What damages did the defendant suffer thereby ?
During the course of the trial it was revealed that the plaintiff had on26. 7. 50 given the defendant notice terminating the tenancy at the end ofAugust, 1950..
The learned Commissioner whilst holding that P2 was at common lawsufficient to determine the tenancy took the view that it was not such anotice as came within the com temptation of section 13 (1) (6). But he heldthat the defendant was in arrears of rent and that the plaintiff’s claimfor ejectment must therefore succeed. As regards the defendant’s claimfor damages he held that the defendant was not entitled to any damages
356
SWAN J'.—Chaclco v. JVLody
because be bad. no right to draw water from the plaintiff’s kitchen.He also held that there was no legal justification for the non-paymentof rent by the defendant after 1.9.50. In the result the claim in re-convention was dismissed and judgment entered for the plaintiff as-prayed for in the plaint.
Mr. Jayewardene’s contention is that the defendant was not in arrearsof rent. He argues that after the tenancy was determined by HIthere was no rent payable. What the defendant was liable to pay wasdamages and not rent. The learned Commissioner was’ therefore inerror in holding that the plaintiff was entitled to sue in ejectment undersection 13 (1) (a). In this connection he drew my attention to section 15of the English Act and section 14: of our Act. The former expresslyprovides that so long as the tenant retains possession of the premiseshe must observe all the terms and conditions of the original contract.The latter, on the other hand, makes no such provision but only statesthat when an action in ejectment against a tenant is dismissed his occupa-tion of the premises for any period prior or subsequent to such dismissal“ shall be deemed to have been or to be under the original contract oftenancy ”. In the circumstances he contends that after 1.10.50, therebeing.no legal obligation on the defendant to pay rent, it could not be saidthat rent was in arrear for one month after it became due as required bysection 13 (1) (a). I am unable to agree with that view. In my opinion atenant must, in order to claim the protection of the Act, fulfil all hisobligations under the contract of tenancy. He cannot have it both waysso as to be able to call, in a manner of speaking, “ Heads I win—tails youlose ”.
In this case however, I think there can be no question that thedefendant was in arrears of rent. It is common ground that the plaintiffsent the defendant the notice to quit HI terminating the tenancy on31.8.50. It is also common ground that the defendant on 12.8.50 gavethe plaintiff the document P2 which runs as follows :—
P2
“ I the undersigned P. J. Chacko doing business at 354, Skinner’s RoadNorth, Colombo, do hereby write to inform H. K. Mody Mudalaly of190 Skinner’s Road North, Colombo as follows :—•
I am in receipt of your registered letter and in reply beg to stateas follows :—
I hereby agree to vacate and give peaceful possession of the premises-No. 354, Skinner’s Road North on 30th November 1950 and also Ihave no objection in your closing the backside door by expanded metal.
I have to request you to kindly pay me Re. 1,000 which you havetold me to give me free if I am leaving the premises on 30th November
1950.
Sgd. P. J. Chacko.
Hated 12th August, 1950. ”
Referring to this document the learned Commissioner had held that theregistered letter mentioned therein is the notice to quit HI ; and thatalthough P2 is signed only by the defendant it is the “ formal record of a-
RWAX J.—CJ/acko v. Modi/
357
previous oral agreement arrived at between the parties but committedto writing in the absence of the plaintiff ”. What then would be thecombined effect ofDl and P2 ? I think the correct answer would be thatthe defendant accepted the plaintiff’s notice D1 and asked for andobtained an extension of time till 30.11.50 to quit the premises. Theplaintiff could not therefore have sued the defendant in ejectment before
12. 50, for the tenancy was not determined until 30.11.50. DocumentP2 as interpreted by the learned Commissioner clearly gave the defendantthe right to remain as tenant till 30.11.50 and preeluded the plaintifffrom acting on the notice to quit Dl. Viewed at in this light, P2 mighteven be construed as notice given by the tenant within the contemplationof section 13 (1) (b). Be that as it may there can beno doubt that by reasonof P2 the tenancy was not in fact determined till 30.11.1950. Thedefendant was therefore clearly in arrears of rent when this action wasbrought.•
The only other point to consider is whether by bringing all rents intoCourt up to the date of filing answer the defendant could escape theconsequences of his default. In George v. Richard1 Nagalingam J.took the view that where the arrears were tendered before the filing ofthe action the landlord could not maintain the action. My learnedbrother came to that conclusion upon the construction of section 8 ofthe Rent Restriction Ordinance which provided that no action for theejectment of the tenant could be instituted unless rent had been in arrearfor one month after it had become due. His interpretation of thatstipulation was that the arrears must exist at the date of institution ofthe action. In the course of his judgment my learned brother said :—
“ In the present case, therefore, it is essential for the plaintiff to showthat not only had the defendant allowed the rents to remain unpaidfor over a month as they fell due, hut that in fact the rents remainedso unpaid even at the date of institution of action. The plaintiff isclearly unable to establish the second requirement. The rents that werein arrears were tendered to him before institution of action, and hewrongfully refused to accept them. The plaintiff must in thesecircumstances be deemed to have been paid the rents on the datesthey were tendered, and therefore it must follow that the tenant wasnot in arrear with bis rent. ”
It is hardly necessary for me to refer to the case of Fernando v.Samaraweera 2 where Basnayake J. expressed the view that in a casegoverned by the Rent Restriction Act once the contractual tenancy isended by notice the landlord loses no rights by accepting rent from thestatutory tenant. The ratio decidendi of that ease appears to me to bethat the sending of cheques by the tenant for rent due does not amountto payment of rent where no receipts are given and the cheques are notcashed.
1 {1948) 50 X. L, R, 128.2 {1951) 52 X. L, R, 278,
358
GTJN'ASEK.ARA J.—Tn ra Jayawarilene
However, in the case of Suywmbulingam, Chettiar v. Pechchi MuttuChettiar 1 de Silva J. refused to follow George v. Richard2and held that the landlord’s right to eject bis tenant cannot he takenaway from him by the tenant’s tendering the arrears of rent before theinstitution of legal proceedings.
In this case there is not even the suggestion that arrears of rent weretendered before action was filed. So that the effect of a tender doesnot arise.
The appeal is dismissed with costs.
Appeal dismissed.