WIJAYAT1LAKE, J.—Abdul Rahman v. Justin Fernando
Present: Wijayatilake, J.P. T. H. ABDUL RAHAMAN, Appellant
C. JUSTIN FERNANDO, Respondent
S.C. 29/71—C. R. Colombo, 96966 (R.E.)
Landlord and tenant—Agreement by tenant to pay rent that is “legallydue ”—Subsequent increase of authorised rent in consequence ofannual value of the rented premises being increased by the localauthority—Arrears of rent—Computation.
Where a tenant has agreed to pay rent that is “ legally due ”and the annual value of the rented premises is increased bythe Municipal Assessor’s Department, the tenant is not boundto pay the higher authorised rent resulting from the increased annualvalue until notice is given to him by the landlord" requiring him topay rent at the higher rate. When such notice is given, he is notliable to pay rent at the increased rate except in respect of themonths subsequent to the date of the notice.
Ranganathan, Q.C., with A. Sivagurunathan, for the plaintiff-appellant.
Respondent absent and unrepresented.
November 12, 1973. Wijayatilake, J.
The plaintiff had bought the premises in question in 1944 andsince then the defendant had been his tenant. The rent had variedfrom time to time and during the relevant period the defendantwas paying Rs. 130.15. In 1966 the defendant had filed actionNo. 1513/ZL in the District Court of Colombo against the plaintifffor damages and a permanent injunction. On 3.4.67 a settlementwas arrived at whereby the present defendant agreed to pay therent that is legally due from the 1st of April to the presentplaintiff. The question has arisen in the instant case whether thedefendant has been in arrears of rent in respect of the monthsof April and May 1967 as he had paid only Rs. 130.15 for eachof these months although the authorised rent was Rs. 168.33.
It is common ground that the rent payable prior to April 1967was Rs. 130.15 and the defendant had sent a money order forRs. 130.15 on 30.4.67 with a covering letter stating that the saidsum is the cost of the rent for the month of April 1967 (P2).There was no reply to this letter. Thereafter the defendant hadon 30.5.67 sent a money order for Rs. 130.15 with a similarcovering letter stating that this is the cost of rent for the monthof May 1967. He has drawn the attention of the plaintiff to theearlier remittance and called for receipts of payment—(P3)~
from a judgment of the Court of Requests, Colombo.
Cur. adv. vult.
1*—A 39546 (7C/02)
WIJAYATTLAKE, J.—Abdul Rahman v. Justin Fernando
The proctor for the plaintiff by his letter P4 of 3.6.67acknowledged P2 and P3 and he has taken the position that thepremises in question are ‘ a new premises ’ and has been assessedas from 1.4.67 at the annual value of Rs. 3,000—hence thestandard rent of the premises is Rs. 357.50 per month. The twomoney ordeB^daave been returned and the defendant has beenrequested ttf'el^lJOsit a further three months rent calculated atthe present standard rent. The plaintiff by his letter of 30.6.67P5 has pointed out that the premises do not come under thedefinition of “ new premises ” from 1.4.67. He, however, concedesthat the Colombo Municipality has raised the annual valueconsequent on the improvement and alteration from 1.4.67 toRs. 3,000 and therefore the rates have been increased to Rs. 225per quarter as from that date—hence the increase in rentpermissable is only Rs. 38.25. However, he contends that as theplaintiff has not given prior notice to him of this increase he isnot bound to pay the same as from 1.4.67. Thereafter the plaintiffby letter dated 12.8.67 gave notice to the defendant to vacate thepremises on 30.9.67 for failing to pay the correct legal rent forthe month of April 1967. Admittedly, as from June 1967 thedefendant had paid rent at Rs. 168.40 per month. Therefore theprincipal question which has arisen for consideration is as towhether the defendant had been in arrears from April 1967 inthe light of the Agreement ‘ B ’.
The plaintiff in his plaint avers that the rent “ legally due ”per mensem is Rs. 168.33 and the defendant has failed orneglected to pay such rent for the months of April and May 1967.
Mr. Ranganathan, learned Counsel for the appellant submitsthat the defendant has clearly and deliberately acted in breachof the aforementioned settlement arrived in Court as he hasfailed to pay the rent “ legally due He has drawn my attentionto the Statutory Notice issued by the Municipal Assessor’sDepartment (Pll) dated 31.3.67 whereby the annual value hasbeen fixed at Rs. 3,000 as from 1.4.67. The date of service of thisnotice according to Pll was 7.4.67. The defendant has admittedreceiving this notice on this date. Mr. Ranganathan stresses thefact that on the receipt of this notice it was incumbent on thedefendant to pay the rent “ legally due ”•—Rs. 168.33 per monthas from April 1967. However, in regard to the rent “ legallydue ”, although now the plaintiff claims Rs. 168.33 even on 3.6.67(P4) he has claimed a sum of Rs. 357.50 per month as standardrent. The plaintiff in his evidence has admitted that up to thetime he sent the letter P4 he was not aware what was legallydue as rent. This is a most anomalous situation. Despite his lackof awareness he gets his proctor to make a claim of Rs. 357.50per month. So that in my opinion where a landlord himself is
Peiris v. Petris
unaware of the maximum rent he is entitled to charge it wouldbe harsh and unconscionable to expect the tenant to compute thefigures on the basis of a fresh assessment and initiate thepayment of an enhanced rent. I do not think the settlementreferred to makes any difference—so long as the tenant continuedto pay a rent not more than the authorised rent.
The further question arises why the defendant failed to makegood the balance even at a later stage, particularly in the lightof P5 of 30.6.67 whereby the defendant has conceded that on thebasis of the fresh assessment the increase in rent would beRs. 38.25. In this letter he takes the position that as the plaintiffhas failed to give prior notice of this increase he is not bound topay this increased rent as from 1.4.67. It may be noticed that thedefendant has paid the increased rent as from June 1967. In myopinion the defendant was right in adopting this position as thelandlord had failed to intimate to him the rent “ legally due ”from him in terms of the settlement. The admission made by thedefendant in regard to the increase of rent in P5 of 30.6.67 wouldbe of no avail to the plaintiff as the rent for April and May wasdue by the end of the month ; and at that stage the rent was notin arrears. I do not think the quantum of rent could be increasedretroactively and thereafter pursue a claim for arrears of renton this basis. As I have already referred to, the letter P4 of 3.6.67whereby the landlord claims rent at P.s. 357.50 per month from1.4.67 clearly cuts the ground under his feet.
In the circumstances, I see no reason to interfere with thejudgment and decree of the learned Commissioner. I accordinglydismiss the appeal without costs.
P. T. H. ABDUL RAHAMAN, Appellant and C. JUSTIN FERNANDO, Respondent