Sri Lanka Law Reports
 1 Sri L.R
COURT OF APPEALSALAM, J.
DC BATTICALOA 284/E/97MAY 25, 2006
Rent Act 7 of 1972 as amended by Act 12 of 1980 – 912 – Reasonablerequirement Section 22(2) (bb), section 22(2) (ii)- One year's notice— Is itmandatory – Could this be split? – Notice to quit a condition precedent -Purchase of property over the Head of the tenant – Reasonable requirement- Is it available? – Fresh issues altering scope of action – Permissibility ? -Blowing hot and cold? – Civil Procedure Code section 46 (2) 1. Action barredby positive Rule of Law ? – Can the plaint be rejected later?
The plaintiff-respondent sued the defendant-appellant for ejectment fromthe premises in question on the ground of reasonable requirement – aftergiving him notice of termination of tenancy of 6 months. The District Court aftergranting the reliefs prayed for by the plaintiff went on to hold that the writ ofpossession should be deferred by 6 months, to ensure that, no prejudice iscaused to the defendant. The position of the defendant was that the length ofnotice given is inadequate in law to file an ejectment suit under section 22 (6)- it should be one year
In terms of section 22 (6), if the premises is required by the landlordon the ground of reasonable requirement either for himself or for anymember of his family, then one years notice in writing of thetermination of the tenancy should be given by the landlord to histenant.
This being a condition precedent, to the institution of legalproceedings, has to be complied strictly, prior to the institution of anaction. Failure to do so, undeniably renders the purported action ofthe landlord, a mere futile exercise.
Piragalathan v Shanmugam
The pleadings and evidence without any ambiguities point to the factthat the landlord has purchased the property, subsequent to thespecified date over the head of the tenant- thus the plaintiff cannotmaintain the action.
If the suggested issues are permitted, it would not only radically alterthe entire basis of the plaintiff’s action, but place the defendant-appellant at a remarkably disadvantageous position, causingirreparable loss and immense prejudice to his case.
Having come to Court on the basis that the provisions of the RentAct would apply to the premises in suit, the- plaintiff cannot beallowed to rescile from that position and take up an entirely differentposition. The doctrine of approbate and reprobate forbids theplaintiff-respondent from being allowed to take up the position thatthe premises in question is excepted from the operation of the RentAct.
Per Abdul Salam, J.
"Failure on the part of the landlord to give the tenant proper notice to quit,would disentitle the landlord from maintaining an action for section 46(2)(1) ofthe Civil Procedure Code provides that when the action appears from thestatement in the plaint to be barred by any positive rule of law, the plaint shallbe rejected”.
Failure of the Court to reject a plaint at the time of presentation,where the cause of action is barred by a positive rule of law doesnot prevent the Court from rejecting the plaint later when the defectis subsequently brought to its notice – nor is the defendantestopped by the earlier acceptance of the plaint from seeking therejection of the later.
APPEAL from the judgment of the District Court of Batticaloa
Case referred to:
Hilmy v De Alwis – 1980 – 2 Sri LR 207
S. Ratnam v S.M.K. Dheen – 70 NLR 21
Divisional Forest Officer v. Sirisena – 1990 – 1 Sri LR 44
Kandasamy v Gnanasekeram – SC 16.6.1983; SC App 60/82
Sidebothom v Holland -1895 – 1 QB 378, 383
S. Mandaleswaran with P. Peramunagama for defendant-appellant.
Faiz Musthapha PC with Thushani Machado for plaintiff-respondent.
Sri Lanka Law Reports
 1 Sri L.R
April 30, 2007ABDUL SALAM, J.
The plaintiff sued the defendant, his tenant, for ejectment fromthe residential premises in suit, (hereinafter at times referred to as“premises”) on the ground of reasonable requirement. It wasadmitted that the premises is governed by the Rent Act and theplaintiff had purchased it while the defendant was in occupation as atenant. The learned District Judge held that the plaintiff reasonablyrequired the premises for his occupation, within the meaning of theProvisions of Rent Act No. 7 of 1972 and gave judgment for theplaintiff, to eject the defendant.
As regards the notice of termination of tenancy, which isconsidered to be a pre-requisite under the Act, the learned DistrictJudge arrived at the finding that the plaintiff should have given noticeof termination of tenancy of one year. However, he refrained fromruling that the said notice which extended to a period of 6 months, asbeing void in law, although he was persistently invited by thedefendant to do so. Conversely, the learned trial judge held that thewrit of possession should be deferred by 6 months, presumably toensure that no prejudice is caused to the defendant- appellant byreason of the defective notice, relating to the termination of tenancywhich fell short of 6 months of the required period as contemplatedby section 22 (6). The present appeal has been preferred by thedefendant-appellant against this judgment.
It is common ground that the plaintiff respondent by notice dated30/9/1996, sought to terminate the tenancy upon the lapse of sixmonths, on the ground that the premises was reasonably required byhim, for his occupation. The defendant in his answer took up theposition inter alia, that the said length of notice is inadequate in law tofile an ejectment suit against him on the ground stated therein. One ofthe issues that came up for determination before the learned DistrictJudge was the propriety of the notice of the termination of tenancy.The issue recorded at the commencement of the trial, pertaining tothe notice of termination of tenancy, included the following.
Did the plaintiff by his letter dated 30/9/1996 terminate thesaid tenancy as the premises described in the schedule tothe plaint were required for its own use and occupation?
Piragalathan v Shanmugam
(Abdul Salam. J.)
If issue No: 1 is answered in the affirmative, is the defendantin unlawful possession of the said premises from 1/4/97,paying damages at Rupees 1000/- per month to the plaintiff?
If the issues No: 1 and 2 are answered in the affirmative, isthe plaintiff entitled for judgment as prayed for in the plaint?
Does the notice of the plaintiff dated 30/9/1996 conform tolaw?
If issue No: 4 is answered in the negative, can the plaintiffmaintain his action?
The learned District Judge answered the above issues in thefollowing manner.
The defendant is in unlawful possession.
Only prayer (a) of the plaint is allowed.
The period of notice required to terminate the tenancy wasone year but only six months notice of termination has beengiven.
According to the answer given to issue No. 4, the issue ofwrit of possession will be deferred by six months.
As far as the present appeal is concerned, the factual existenceof the reasonable requirement of the respondent, to repossess therented premises was not seriously disputed. Consequently, thefindings of the learned District Judge, relating to the comparativeneed of the landlord to repossess the rented premises, as opposedto the necessity of the tenant, to continue with his possession of thesame, need not be addressed. However, it will be necessary to clearup one preliminary matter, in respect of which arguments wereadvanced at some length by the learned Counsel appearing for bothsides. It relates to the question as to whether a landlord who purportsto send out a notice to a tenant terminating the tenancy, which fallsshort of the required period, (contemplated by section 22(6) of theAct, as amended by section12 of Act No. 55 of 1980) can have andmaintain an action, successfully for ejectment of the tenant on theground that the premises is reasonably required for his occupation.
The question that the standard rent of the premises (asdetermined under section 4) and also as to whether the said
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premises exceeds the relevant annual value, were never disputed atthe trial. As a matter of fact, the trial proceeded on the tacitadmission that the provisions of the Rent Act, were applicable to thepremises in question and that the contract of tenancy was governedby the Act. This is quite clear from the averment contained in theplaint and the unqualified admission made in the answer,(paragraphs 3 of the plaint and 5 of the answer).
Arising from the above the learned trial judge, categorically heldthat the subject matter of the action is governed by the provisions ofthe Rent Act. He also proceeded to deliver his judgment, on thepremise that the standard rent of the premises, is above Rs 100/-. Itis clear from the record that the plaintiff respondent has not come toCourt in ejectment of the tenant on the ground that he is the ownerof a single residential premises as is contemplated by section22(2)(bb) of the Rent Act. In other words the action in ejectment isbased on section 22(2) (ii) of the Rent Act. In terms of section 22 (6)of the Rent Act, the nature of the written notice required to be givento the tenant of such premises should extend to a period of one year,as opposed to the proceedings in ejectment of premises let to atenant, whether before or after the date of commencement of theRent Act, on the ground of reasonable requirement of the premisesfor the occupation as a residence of the landlord or any member ofhis family, IF SUCH LANDLORD BE THE OWNER OF NOT MORETHAN ONE RESIDENTIAL PREMISES, section 22 (2)bb. (emphasisadded). Hence, the learned District Judge has had no mis-apprehension as to the application of the relevant law, when he cameto the conclusion that the nature of the notice required to terminatethe tenancy of the defendant, was one that should extend to a year.
Despite the finding that one year’s notice of termination oftenancy was imperative, to institute proceedings against thedefendant, the learned District Judge held that the action wasnevertheless maintainable, when instituted after notice of six months,as was admittedly dispatched to the defendant by the plaintiff. Thisline of reasoning presumably appears to be the out come of theapproach adopted by the learned trial judge to regularize the patentlydefective notice of termination of tenancy.
The learned trial Judge has been greatly influenced by theunreasonable attitude of the defendant’s failure to give up the
Piragalathan v Shanmugam
tenancy, despite the fact that he owned two residential premises inthe same vicinity, of which he has disposed of one for valuableconsideration, subsequent to his receiving the notice to quit.Motivated by his enthusiasm to meet out justice to both, the learnedtrial judge has disregarded the patent defect in the said notice andwent on to defer the writ of possession by six months. This seemsto be the solution, Court was able to find, to make good the damagecaused by the defective notice of termination of tenancy. The attemptof the learned judge, to regularize the notice in question has had theoutcome of the tenant being compelled to receive, notice to quit inpiecemeal, in that 6 months notice by the Landlord prior to theinstitution of the action and yet a similar term of notice by Court,simultaneously with the pronouncement of the judgment. This has •been done ensure that the defendant factually had one year notice,before he is forced out of the premises. Such a notice, in myjudgment invariably lacks coherence and hardly be said to constitutea proper notice. In short the notice contemplated in this respect, asfar as the length of it is concerned, should be continuous andindivisible. It lacks the essential characteristic of a notice to quit,(emphasis added) no sooner the required period is identified asdivisible and interruptible.
It is urged on behalf of the defendant appellant that the action ofthe plaintiff-respondent was not maintainable in law, without a propernotice of termination of tenancy. Such a notice according to thedefendant-appellant should stretch out for a period of one year atleast, so as to enable the tenant to find alternative accommodation,before he elects to face the consequences of being dragged intoCourt. Such a notice has the effect of extending a grace period of onefull year to the tenant to find alternative accommodation, with a viewto avoid litigation.
The learned Counsel of the defendant-appellant has submittedthat the notice to quit, unlike an agreement, represents a unilateralact by the landlord without involving the tenant to consent to it andtherefore must be technically perfect as one man's act terminatesanother man’s right. I am unable disagree with this contention.
It is interesting to note the several type of notices required to begiven to a tenant, prior to the institution of an action under the RentAct. The length of notice required to be given varies, depending on
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the ground on which the tenancy is terminated and the category in towhich the rented premises falls under section 22. As far as an actionin ejectment from a residential premises, on the ground ofreasonable requirement is concerned, the length of notice required tobe given to the tenant, terminating the tenancy, is determined interalia on the following considerations.
Standard rent (determined under section 4)
Date on which the tenancy agreement commenced and
In certain type of residential premises based on whether thelandlord is the owner of a single residential premises.
As far as the instant action is concerned, it is section 22 (6) readwith 22 (2) (b) of the Rent Act, which determines the length of noticerequired to terminate the tenancy. As has been correctly held by thelearned District Judge, the length of notice required to be given to thetenant in this connection, should extend to a year. Admittedly, thetenant has been given six months notice of the purported terminationof tenancy. In terms of section 22 (6), notwithstanding anything in anyother law a landlord of any premises referred to in section 22 (2)[save and except when he is the owner of not more than oneresidential premises] shall not be entitled to institute any action orproceedings for the ejectment of the tenant of such premises, on theground that such premises is required for occupation as residence forhimself or any member of his family, if the Landlord has not given tothe tenant of such premises one year’s notice in writing of thetermination of tenancy. In terms of the aforesaid section, irrespectiveof the commencement of the date of tenancy, if the landlord is theowner of a single residential premises, perhaps in recognition of theurgent need of the landlord to recover possession of his property, itis laid down that six month’s notice of termination of tenancy, wouldsuffice for the institution of proceedings in ejectment.
Mr. Mandaleswaran has submitted on behalf of the defendant-appellant that there is no proper notice to quit and as a result thecondition precedent to the institution of the action has not beensatisfied by the plaintiff respondent. In the case of Hilmyv De A/w/socited by the learned District judge, it was held that notice to quit is acondition precedent to the filing of an action. In that case Victor
Piragalathan v Shanmugam
(Abdul Salam, J.J
Perera, J. delivering the judgment of the Supreme Court held thatSection 22 (6) had altered the law by providing that if the premises isrequired by the landlord on the ground of reasonable requirementeither for himself or any member of his family, then one year’s noticein writing of the termination of tenancy shall be given by the landlordto the tenant. This new provision thus gave the tenant a period of oneyear to find out alternative accommodation and was a conditionprecedent to the institution of the action. Emphasizing thesignificance of one year’s notice, the Supreme Court furtherobserved that the requirement of one year’s notice, relieved to someextent, a burden that may have been laid on a landlord.
Section 22 (6) of the Rent Act is quite clear on this point. Themanner in which this section has been couched, leaves no doubt thatno landlord of any premises referred to therein, shall be entitled toinstitute any action or proceedings for the ejectment of the tenant ofsuch premises, on the grounds referred to therein, unless one year’snotice has been given in writing of the termination of the tenancy andduring the said period of one year the tenant has failed to hand overvacant possession of the rented premises. This being a conditionprecedent to the institution of legal proceedings, has to be compliedstrictly, prior to the institution of an action. Failure to do so, in myopinion undeniably renders the purported action of the landlord, amere futile exercise.
In the case of S.Ratnam v S.M.K Dheert?) it was held that thefailure on the part of the landlord to give the tenant proper notice to quit,would disentitle the landlord from maintaining an action, for section46(2) (i) of the Civil Procedure Code provides that when the actionappears from the statement in the plaint to be barred by any positiverule of law, the plaint shall be rejected. Since the defendant-appellanthas failed to advert the learned District Judge to the prohibition againstthe maintainability of the action, when it is barred by positive rule of law,to be precise, without proper notice of termination of tenancy, the courthas failed to take such a step under section 46 (2) (i).
In the case of Divisional Forest Officer v S/risena*3* it was heldthat under section 33 (1) of the Forest Ordinance a person whoseclaim has been rejected under section 32 may within one month fromthe date of the rejection institute a suit to recover possession of thetimber claimed. When such a suit was filed after the lapse of one
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month and was therefore barred by a positive rule of law, it was heldthat it should have been rejected as provided in section 46 (2) (i) ofthe Civil Procedure Code.
In dealing with the omission on the part of the judge to reject theplaint at the inception, it was stated by Wijetunga, J. in the said casethat the failure of the Court to reject a plaint at the time ofpresentation, where the cause of action is barred by a positive rule oflaw does not prevent the Court from rejecting the plaint later whenthe defect is subsequently brought to its notice. Nor is the defendantestopped by the earlier acceptance of the plaint from seeking therejection of the plaint later. In passing it must be mentioned that if theoriginal Court had recourse to section 46 (2)(i) and rejected theplaint, the plaintiff-respondent in actual fact would have gained in thelong run, for such a rejection shall not of it's own force preclude himfrom presenting a fresh plaint in respect of the same cause of action,provided the defective notice is regularized.
Mr. Mandaleswaran further submitted that conduct of the court,in stepping down from its high pedestal, in acting as landlord to coverthe shortfall of six months, by staying writ cannot legally besanctioned. Taking in to consideration the several legal authorities onthe matter and the clear wordings of section 22 (6) of the Rent Act, Ifind it difficult to justify the step taken by the learned District Judge tokeep alive a notice which is of no force or avail in law. In thecircumstances, I am of the view that the learned District Judge shouldhave answered issue No. 4 in the negative and 5 in favour of thedefendant-appellant.
In any event, the pleadings and the proceedings in the case,amply bare out, that the premises in question has been purchased bythe landlord over the head of the tenant. As a matter of fact in termsof paragraph 3 of the plaint, notice of attornment has been given inthe year 1996. The premises has been purchased by the plaintiffrespondent from the former landlord of the defendant-appellant, bydeed No. 3259, attested by D.C Chinnaiah, Notary of Batticaloa, on25th May 1996. In terms of subsection 7 of section 22 of the Rent Act,in so far as it is applicable to the instant matter, notwithstandinganything in section 22 (1) to 22 (6), NO ACTION OR PROCEEDINGSFOR THE EJECTMENT OF A TENANT OF ANY PREMISES SHALL BEINSTITUTED ON THE GROUND OF REASONABLE REQUIREMENT,
Piragalathan v Shanmugam
(Abdul Salam. J.)
WHERE THE OWNERSHIP OF SUCH PREMISES WAS ACQUIREDBY THE LANDLORD ON A DATE SUBSEQUENT TO THE SPECIFIEDDATE BY PURCHASE, (emphasis added) Thus the pleadings andevidence in this case without any ambiguities point to the fact that thelandlord has purchased the property, subsequent to the specifieddate, over the head of the tenant. Consequently, I have no hesitationin concluding that the issues pertaining to the second preliminaryobjection taken up by the defendant-appellant, as to themaintainability of the action of the plaintiff-respondent, should also beupheld.
In the course of the trial before the commencement of the crossexamination of the plaintiff, two additional issues, suggested by thedefendant-appellant, which are numbered as 8 and 9 were allowedby Court. By the said issue, the learned trial judge was invited toadjudicate as to the maintainability of the plaintiffs action in the lightof the provisions contained in section 22 (7) of the Rent Act, whichinter alia bars the institution of an action or proceedings for theejectment of a tenant of any premises referred to in subsection (1) or
(i) of section 22, where the ownership of such premises wasacquired by the landlord on a date subsequent to the specified date,by purchase. Upon the said issues having been allowed, the plaintiff-respondent in turn suggested two more additional issues, meant tobe numbered as 10 and 11, inviting the Court to rule on the questionas to whether the subject matter is a residential premises occupiedby the owner on 1.1.1980 and let on or after that date. Arising on thesaid suggested issue the plaintiff-respondent further invited Court toadjudicate as to whether the subject matter is excepted premises interms of section 2 (4) (c) of the Rent Act.
The learned District Judge by his order dated 30/11/1999,refused to accept the said additional issues inter alia on the groundsthat such issues would radically alter the entire basis of the plaintiffsaction, as the plaintiff-respondent having come to court that theprovisions of the Rent Act would apply to the premises in suit, cannotbe allowed to resile from that position and take up an entirely differentposition. In other words the learned trial judge concluded his orderstating that the doctrine of “approbate and reprobate" forbids theplaintiff-respondent, from being allowed to take up the position that thepremises in question is excepted from the operation of the Rent Act.
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Mr. Faiz Musthaffa, P.C. has contended that in order to meetthe new position of the defendant-appellant, as to themaintainability of the action in terms of section 22 (7) of the RentAct, as suggested by issues 8 and 9 that his client should havebeen allowed to raise the issues relating to the exemption of thepremises from the operation of the Rent Act.
The learned Counsel of the defendant-appellant’s contentionis that the attempt made by the plaintiff-respondent to include thesuggested issues 10 and 11, was to take advantage of the omissionof the parties and/ or the Court to record the admission that theRent Act, applies to the premises in suit, notwithstanding the factthat the plaintiff-respondent, defendant-appellant and the Courtproceeded on the basis that the Rent Act was applicable to thepremises in suit. He has further submitted that in other words thatthere has been throughout the case an implied admission that theprovisions of the Rent Act are applicable to the subject matter.
It is also contended on behalf of the defendant-appellant thatissues 8 and 9 arise from the provisions of the Rent Act itself, asopposed to the attempt of the plaintiff-respondent to take the caseoutside the purview of the Rent Act, by raising the additional issues10 and 11.
Upon a consideration of the arguments placed by bothCounsel, I am of the view that the learned District Judge has rightlyheld that as stated in the judgment of the Kandasamy vGnanasekararrf4> on the basis of common sense and also commonjustice, that a man should not be allowed to blow hot and cold, toaffirm at one time and deny at another.
Even otherwise, it must remembered that the plaintiff-respondent suggested the additional issues, at a belated stage, aslate as when the defendant himself had closed his case. In myassessment, if the said issues are permitted, it would not onlyradically alter the entire basis of the plaintiffs action, but place thedefendant-appellant at a remarkably disadvantageous position,causing irreparable loss and immense prejudice to his case. In thecircumstances, I am not inclined to endorse the submission madeby the learned President’s Counsel that the learned District Judgeshould have allowed the purported consequential issues. My line of
Piragalathan v Shanmugam
(Abdul Salam, J.)
reasoning to justify the refusal of the trial Judge’s to accept theadditional issues of the plaintiff-respondent is based upon thebelatedness of the application of the plaintiff-respondent, namelyafter conclusion of the trial, linked with the principle relating to thedoctrine of “approbate and reprobate”.
As regards the notice of tenancy, it must be emphasized thatthe learned trial Judge has failed to adopt a reasonable andbalance approach in interpreting the imperative provisions of theRent Act. No doubt, the validity of a notice to quit, as was stated byLindley, J. in the case of Sidebotham v Holland5> “Ought not to turnon the splitting of a straw”. Nevertheless, it is absolutely irrationalto justify a notice of termination of tenancy, which fell short of sixmonths, when if fact the clear intention of the legislature is that thetenant, should be tolerated for one full-year and given the option tofind alternative means of shelter, above his head. To disregardthese provisions of the law and to resurrect an absolutely voidnotice, would amount to undermining the legitimate right of thetenant to enjoy the immunity from being sued for one year.Furthermore, he is permitted in law to be in lawful andunencumbered possession of the rented premises, either by theLandlord or at his instance, for one full year even after he isnoticed. His possession becomes unlawful only upon the expirationof the period set out in valid notice, which he is legally entitled tohave. Any approach by the learned trial Judge, which is capable ofrendering such legislative provision and the clear intention ofParliament, meaningless and absurd, should be discouraged.
For the foregoing reasons, I set-aside the judgment anddecree of the learned District Judge and enter judgment as prayedfor in the answer of the defendant, in the original Court. Accordinglythe plaintiff’s action stands dismissed, subject to costs payable inthis Court and in the District Court by the plaintiff-respondent.
PIRAGALATHAN v. SHANMUGAM