033-NLR-NLR-V-53-RANASINGHE-Appellant-and-FERNANDO-Respondent.pdf
GRATIAEN J.—Ranasinghe v. Fernando '
169
1931Present :Gratiaen J.
RAN A SIN GHE, Appellant, and FERNANDO, RespondentS. C. 172—0. R. Colombo, 29,691
Rent Restriction Act, No. 29 of 1948—Section 5 (2) (c)—Construction—Arrears ofrent—Computation.
No order of a Rent Control Board or of a Board of Review constituted underthe provisions of the Rent Restriction Act, No. 29 of 1948, fixing the rentalfor any premises at a sum different from the rental previously fixed by agreementbetween the parties can operate retrospectively.
-^^.PPEAL from a judgment of the Court of Requests, Colombo.
H. W. Tambiah, for the defendant appellant.
C. E. Jayewardene, for the plaintiff respondent.November 21, 1951. Gratiaen J.—
Cut. adv. vuU.
This appeal relates to an action against a tenant for the recovery ofalleged arrears of rent and also for ejectment from certain premisesto which the provisions of the Rent Restriction Act, No. 29 of 1948, areadmittedly applicable.
The plaintiff let a portion of a building in Hulftsdorp to the defendantwith effect from April 1, 1945, at an agreed monthly rental of Rs. 25.It is not suggested that this sum exceeds the authorised rent for the
premises within the meaning of the Act.
1 (1950) 51 N. L.R. 381.*
(1950) 52 N. L. R. 91.
164
GRATIAEN J.—ARanasinghe v. Fernando
On some .date in 1948 the plaintiff desired to increase the rental to anAmount whioh would not offend the provisions o£'the Act. The defendantretaliated by claiming a reduction. The dispute was accordingly referredto the decision of a Rent. Control Board constituted under the Act andvested with jurisdiction under Section 5 (2) (c) to vary (subject to con-,firmation, variation or annulment by the Board-of Review) the rent fixedby agreement between the parties.
Parliament has in its wisdom decided that disputes of this kind betweenlandlords and tenants are of such urgency that they can be settledmore expeditiously and conveniently by extra-judicial tribunals estab-lished for the purpose. It is therefore legitimate to express the hopethat the history of the present dispute before these tribunals is notcharacteristic of the experience of persons who resort to the machineryset up by the Rent Restriction Act.
On October 21, 1948, the Colombo Kent Control Board investigatedthe dispute and made order reducing the rent to Rs. 15 pee mensem.The plaintiff appealed to the Board of Review which on January 15,1949, allowed the appeal and remitted the matter for a fresh inquiry, inconformity with certain specified directions, by the tribunal of firstinstance. This second inquiry took place on July 7, 1950, when theRent Control Board purported to make order fixing the monthly rentalat Rs. 20. The plaintiff again appealed. On September 30, 1950, theBoard of Review once more'set aside the order under appeal and orderedyet another inquiry de novo by the Rent Control Board. In the result,although two years Had now elapsed, the settlement of the dispute, inthe manner contemplated by the Act, had made no progress, and therewas no binding order fixing the rental payable by the defendant to theplaintiff at a sum different to that fixed by the parties m terms of theiroriginal agreement.
The plaintiff instituted the present action on September 22, 1950,and the rights of the parties must be considered with reference to theposition as it stood at that date. The main cause of action on which theplaintiff relied in claiming a decree for .ejectment was that the defendantwas in arrears of rent within the meaning of proviso (a) to Section 13 (1)cf the Act.
The facts relating to this issue are not in dispute. After the firstabortive order was made by the Rent Control Board on October 1948,the defendant repudiated liability to pay the previously agreed monthlyrental of Rs. 25. He tendered instead Rs.15 each month on the assump-tion that this sum now represented the rent fixed by the Board within themeaning of Section 5 (2) (c) of the Act. Payment on this basis wasrejected by the •'plaintiff. When the Board made its second order on( July 7, 1950 (which in due course proved equally abortive), the defendantincreased the amount of his offer to Rs. 20 per mensem. This tender wasalso refused.
The learned Commissioner of Requests has upheld the plaintiff’s-contention that, on the faots of this case, no valid and binding order has•been made by either Board fixing the rental at any amount in substitution
GBATIAEN J.—Ranasinghe v. Fernando*
165
■for the sum fixed by agreement between the parties 'when the tenancy-commenced. Mr. Thambiah has conceded that, if this 'view of thelegal position be justified, the judgment under appeal was correct.
It seems to-me that the learned Commissioner’s decision is unanswer-able. Under the common law it is -of the essence of a contract of tenancythat there should be a definite agreement regarding rent. The rentpayable at any particular point of time must either be a precise amountfixed by agreement or at least a sum capable of precise ascertainmentin accordance with the terms of the contract. The Rent Restriction Actis Dot designed to alter the nature of a contract of tenancy but merely'varies in some respects the contractual rights and obligations of theparties. It prohibits, for instance, the recovery of the agreed rentalin excess of the authorised rent as defined in the Act. It also vests theHoard in certain cases with jurisdiction to make an order which, onreaching the stage of finality, will operate to vary the terms of the contractby fixing fOT the future a rental in substitution for the rental previouslypayable according to law. No rental fixed by a Rent Control Board orby a Board of Review in the exercise of its appellate jurisdiction operatesretrospectively. Nor is it legitimate to construe the Act as contemplatingany period of time during which the amount of rental payable under the■contract of tenancy is left for ascertainment at some future date. Indeed,it is for .this very reason that the jurisdiction of the tribunals establishedunder the Act requires to be exercised with due regard for urgency.
Section 5 (2) (c) applies to the premises which form the subject matter•of the present contract. In such cases, the rent fixed by agreementbetween the landlord and tenant continues—subject of course to therestrictions contained in Section 8—to be the measure ’of the land-lord’s rights' until a different rental has been fixed either by a bindingorder made by a Rent Control Board under Section 5 (2) (c) or by a•binding order made by the Board of Review under Section 21. If npappeal is preferred against an order made by the Rent Control Board,it comes into immediate operation and regulates the future rights of theparties. If, on the other hand, the party aggrieved by such an order■duly exercises his right of appeal under Section 21 (4), it cannot be saidthat a new rental has been finally substituted for the old until the order•under appeal has been confirmed by the Board of Review. The Board-of Review, -in disposing of the' appeal, is vested with jurisdiction, shouldit think proper, to fix .the rent at some different amount. Where, ashas happened here in respect of two successive appeals, the Board ofReview merely sets aside- the order made by the Rent Control Board:&nd orders a fresh investigation into the dispute, the rental originally■fixed by the contract continues for the time being to be the operativefigure.
For the reasons which I have set out I affirm the judgment underappeal. Mr. Thambiah has pleaded that his client should be even at this-stage given a short time within which to 'find alternative accommodation.Mr. Jayawardene very rightly points out that the plaintiff has been•deprived of his lawful rent- for a considerable period of time, but he ulti-mately agreed that the defendant might, as an indulgence, be granted
166
GRATIAEN J.—Kadirgamer v. Rosairo
some slight concession subject to such conditions as I might think appro-priate to the case. I accordingly vary the .decree entered in the lower-Court by directing that writ of ejectment should not issue until January31, 1952, provided that the defendant pays to the plaintiff on or beforeDecember 15, 1951, a sum not less than Re. 500 in part-payment of thearrears of rent, damages and costs calculated in accordance with para-graph (b) of the prayer to the plaint. If the sum of Rs. 500 be not paidon or before December 15, 1951, writ of ejectment may issue on December-10, 1951, without further notice to the appellant. Subject to this,variation, the defendant’s appeal is dismissed with costs.
Appeal dismissed-