008-SLLR-SLLR-1985-V1-RANASINGHE-v.-PREMADHARMA-AND-OTHERS.pdf
RANASINGHE
v.PREMADHARMA AND OTHERS
SUPREME COURT.
SHARVANANDA, C. J, WANASUNDERA, J., WIMALARATNE. J.. COUN-THOMl. J.AND RANASINGHE. J.
S.C. APPEAL No. 14/84 – C. A. No. 174/80 (F> – D.C. KANDY No. 877/RE.DECEMBER 10, 1984.
Landlord and Tenant – Rent and Ejectment – Denial of tenancy – Is tenant entitled tonotice ?.
In a salt for rent and ejectment the tenant claimed he had constructed the premises andwas entitled to occupy them free of rent until the cost was set off. In effect he claimed ajus retentionis and denied tenancy.
Held – (Wanasundera. J. dissenting) –
The tenant is not entitled to notice because he had repudiated his tenancy. In such acase the landlord need not establish any one or more of the grounds of ejectmentstipulated in section 22 of the Rent Act No. 7 of 1972 for success in Ns suit forejectment.
Edirisinghe v. Patel (1973) 79(1) NLR 217 not followed.
Kandasamyv. Gnanasekeram S. C. Appeal No. 60/82 (CA. Appeal No. 629/79 – S.C.Minutes of 16.6. 1983) followed.
Cases referred to:»
Edinsinghev. Patel (1973) 79(1) NLR 217.
Kandasamy v. Gnanasekeram, $.C. Appeal No. 60/82 (C.A. Appeal No. 629/79,D C. Colombo 2096/RE, S.C. Minutes of 16.6.1983.
Muttu Natchia v. Patuma Natchia (1895) 1 NLR 21.
Sundra Ammal v. JuseyAppu (1934) 36 NLR 400.
Pedrick v. Mendis (1959) 62 NLR 471.
Hassan v. Nagaria (1969) 75 NLR 335.
Mansoorv. Umma(l984) 1 SriLR 151.
Subramaniam v. Pathmanathan (1984) 1 SriLR 252.
Doe v. Prowd (1828) 4 Bing. Reports 655.
Fair Mustapha for plaintiff-appellant.
R. K. W. Goonesekera for defendant-respondenis,
Cur. adv. wit.
February 8, 1985.
SHARVANANDA, C.J.
This is an appeal from the judgment of the Court of Appeal settingaside a judgment of the District Court, Kandy, in a rent and ejectmentcase. The question raised by the appeal is of a general character andof great importance in rent and ejectment cases, having given rise toconflicting judgments. A Divisional Bench of this court has beenconstituted to resolve this conflict and to give a binding decision. Thequestion can be formulated this way-
Where the plaintiff institutes action for the ejectment of thedefendant, his tenant, from premises governed Tsy the Rent Act, andwhere the defendant denies the tenancy, is the court precludedfrom granting an order of ejectment of such defendant unless theplaintiff establishes any one or more of the grounds for ejectmentstipulated in section 22 of the Rent Act ?
The plaintiff, by her plaint dated 24.3.1977, claimed arrears ofrent, damages and ejectment of the defendants, husband and wifefrom the premises in suit, which are admittedly governed by theprovisions of the Rent Act. She averred that she had rented out thepremises to the defendants at a monthly rental of Rs. 16 and that theyhave failed to pay rent since August 1972 and that by notice dated27th*November, 1976, she had requested them to quit and deliverpossession of the premises on or before the end of February 1977The defendants in their answer took up the position that they hadconstructed the house standing on the premises at a cost of Rs.
and that they were entitled to remain in occupation thereof freeof rent until the said amounts are set off. The defendants thus basedtheir right to occupation of the premises not on any tenancy under theplaintiff but on an independent title of their own – namely jusretentions. By way of reconvention they claimed this amount for theimprovements effected by them. They also denied both the receiptand the validity of the notice to quit pleaded by the plaintiff. It is clearfrom the answer that they denied the tenancy of the premises of theplaintiff, though they had in fact in an earlier action No. 10192/L,between the parties taken up the position that they were in facttenants of the plaintiff.
The case proceeded to trial on the following issues, inter alia
Are the defendants in occupation of the premises asmonthly tenants ?
Did the plaintiff oh 27.11.76, send the defendants a noticeto quit the premises on or before end of February 1977 ?
If the issues to be decided are concluded in favour, of theplaintiff, is plaintiff entitled to eject the defendants ?
(13) Was there a valid notice to quit given to the defendants ?
What sum is due as arrears of rent and damages ?
Did the defendants construct a house which is described inthe schedule to the plaint ?
If so, is it open to the defendants to remain in occupation ofthe said premises free of rent until the said amount is set
off?
The learned Additional District Judge by his judgment dated 30thApril 1980 held that the 2nd defendant occupied the premises as amonthly tenant of the plaintiff. He however rejected the copy of thenotice to quit, on the ground that as the last portion of it was missing,there was nothing to show as to who sent it. He however proceededto hold that as the defendants disclaimed tenancy under the plaintiff itwas in law not necessary for the plaintiff to have given notice oftermination of the tenancy. He held that the defendants were inarrears of rent and entered judgment in favour of the plaintiff in termsof the prayer of the plaint and directed that they be ejected from thepremises.
It would appear from the proceedings that the plaintiff had in theearlier action No. 10192/L, sued the defendants for a declaration oftitle and ejectment from the premises on the basis that they weretrespassers. The defendants in that case pleaded that the 2nddefendant was the tenant of the premises under the plaintiff and thatshe was entitled to protection from ejectment under Rent Act No. 7 of1972. The position of the defendants was upheld in that case and theplaintiff's action was dismissed.
The defendants preferred an appeal against the judgment enteredagainst them in this action. The Court of Appeal by its judgment, dated20.1 1984, allowed the defendants' appeal and while upholding thatpart of the judgment entered in favour of the plaintiff for the sum of Rs.816 being arrears of rent up to the end of February 1977, set asidethe order of ejectment of the defendants. In the Court of Appeal theDistrict Judge's finding that the tenancy of the premises was underthe plaintiff was not challenged by the defendants. The judgment ofthe Court of Appeal was founded on the ground that since thedefendant was a tenant under the plaintiff of rent controlled premises,the plaintiff could succeed in getting a decree for ejectment on theground of arrears of rent, only if she established the requirements ofsection 22(3) and 22(6) of the Rent Act. The court held that since theplaintiff had failed to establish that she had given three months noticeof the termination of the tenancy to the defendants the court had nojurisdiction to grant the relief of ejectment of the defendants. Thecourt held that it was incumbent on the plaintiff to given notice oftermination of tenancy to the tenant as required by section 22(3) (a) ofthe Rent Act even though the tenant had repudiated the contract oftenancy and did not claim the benefit of the Rent Act. In reaching thisconclusion the Court of Appeal followed the judgment of the lastSupreme Court in Edirisinghe v. Patel (1) which held that the denial ofthe tenancy by the defendants will not relieve the plaintiff of the burdenof establishing the statutory requirement upon which an order forejectment could be made.
In the appeal before us counsel for the plaintiff-appellant reliedstrongly on the decision of this court in Kandasamy v. N. S.Gnanasekeram, (2). In that case too the premises were subject toRent Act No. 7 of 1972 and the plaintiff sought to eject his tenant onthe ground that the premises were reasonably required for his use andoccupation. A year's notice of the termination of the tenancy had beengiven by him to the defendant in terms of section 22(6) of the RentAct. The defendant in his answer denied that he was the tenant of thepremises and stated that one Sittampalam was the tenant of thepremises and that he was occupying a part of the premises with theleave and licence of Sittampalam. The defendant did not and could notclaim, in view of his denial of the tenancy, the protection of the RentAct. At the trial counsel for the plaintiff raised the following issues
Is the defendant the tenant of the premises in suit ?
In denying the tenancy, is the defendant acting in collusionwith Sittampalam ?
(a) Is the plaintiff entitled for a writ of ejectment against the
defendant ?
(b) What damages is the plaintiff entitled to ?
The issues show that counsel based the plaintiff's right of ejectmentand damages on the defendants repudiation of the tenancy andabandoned the plea of reasonable requirement.' Counsel for thedefendant however raised the following issues
Are the said premises reasonably required for the use ancloccupation of the plaintiffs as their residence ?
If issue 4 is answered in the negative, are the plaintiffs entitledto the relief prayed for in the plaint ?
Counsel for the plaintiff thereupon raised the following furtherissues
Even if the premises are not required by the plaintiffs for theirresidence and if issue (1) is answered in the affirmative, as thedefendant denies tenancy are plaintiffs entitled to judgment asprayed for ?
Counsel for the defendant then raised the additional issues
If issue (1) is answered in the affirmative.and issue (4) in thenegative can the plaintiffs have and maintain this action ?
The trial Judge held on the evidence that the defendant was thetenant of the premises under the plaintiffs and answered issues 3 and6 in the affirmative and that the defendant was liable to be ejected, fiealso answered issue (4) relating to reasonable requirement which wasabandoned by the plaintiff, also in the plaintiff's favour. He accordinglyordered ejectment of the defendant. The Court of Appeal affirmed thisfinding of reasonable requirement which was challenged in appeal.The Supreme Court set aside this finding of reasonable requirement,but held that the District Judge came to a correct finding that the
plaintiff was entitled to the order of ejectment of the defendant on thebasis of the defendant’s defence that he was never a tenant of thesaid premises.
Counsel for the defendant-respondents in turn relied on theTtjjgement in Edirisinghe v. PateI (supra) which held that once it wasestablished that the defendant was the tenant of rent- controlledpremises he could not be ejected except upon any one of the groundsstipulated by the Rent Restriction Act, even though the defendant haddenied that he was a tenant of the plaintiff. In that case Pathirana, J.said that –
"once a landlord comes into court on the averment that the* person in occupation of the premises is his tenant and establishedthis fact, then such a person cannot be elected from the premisesunless the landlord satisfies the requirements of any of the groundsset out in section 13 or on the ground of sub-letting under section 9of the Rent Restriction Act. A tenant may deny tenancy for a numberof reasons but once it is proved that he is a tenant, ipso facto he isentitled to the protection of the Rent Restriction Act, as he is aprotected tenant'
Sirimanne, J., took the same view and stated-
'It was incumbent on the plaintiff, quite apart from what thedefendant may have pleaded, to prove that the defendant was inarrears of rent and/or the defendant had sublet the premises interms of section 13(1) and 9(1) of the Rent Restriction Act. If theyfailed to prove either of these grounds then the action mustfail
'The position remained unaffected whatever be the plea of thedefendant."
In the present case, the Court of Appeal has agreed with thejudgment in Edirisinghe v. Patel (supra) and concluded that since thetrial judge has found that the 2nd defendant was a tenant of thepremises, it was incumbent on the plaintiff not only to establish thatthe 2nd defendant was in arrears of rent for three months or more, asrequired by section 22(1 )(a) of the Rent Act, but also that she gave atleast 3 months notice of the termination of the tenancy as required bysection 22(3)(a) of the Act, to enable her to obtain an order ofejectment. It held that the denial of the tenancy by defendants will notrelieve the plaintiff of the burden of establishing the statutory
requirements upon which an order for ejectment could be made. Thecourt distinguished the case of Kandasamy v. Gnanasekeram (supra)on the ground that the plaintiffs in the latter case abandoned, at thestage of framing issues, their claim for an order of ejectment undersection 22(2)(b) of the Rent Act on the ground of reasonablerequirement and confined their claim for ejectment on grounds otrtlrthan those contemplated by section 22 of the Rent Act.
I find it difficult to follow the distinction drawn by the Court ofAppeal. With all respect to that court I cannot perceive any substancein the distinction sought to be drawn by that court. In Kandasamy'scase, in view of the denial of the defendant that he was a tenant of theplaintiff the plaintiff raised the issue, is the defendant a tenant of tbepremises in suit ? And that issue was answered in the affirmative bythe trial Judge. There was no dispute that the premises in suit in thatcase were governed by the provisions of the Rent Act. On the basis ofthe judgment of Pathirana, J., and Sirimanne, J. in Edirisinghe v. Patel(supra), the plaintiff's action should have been dismissed. Accordingto that judgment, as the plaintiff had come into court averring that thedefendant was his tenant and had established the fact, then the"defendant cannot be ejected from the premises unless the landlordsatisfies the requirements of any one of the grounds set out in section13 or section 9 of the Rent Restriction Act".
The reconciliation by the Court of Appeal of the two cases namely.Edirisinghe v. Patel (supra) and Kandasamy v. Gnanasekeram (supra)is untenable. The latter case is. in my opinion, in conflict withEdirisinghe v. Patel, and departs from the ruling in that case.
The court in Edirisinghe v. Patel had adopted a Very literalinterpretation of the language of section 9 and 13 of the RentRestriction Act. In doing so it had not taken into consideration a veryrelevant principle of law ‘which has its basis in common sense dhdcommon justice, that a man should not be allowed to blow hot andcold, to affirm at one time and deny at another" as stated by VictorRerera, J. in Kandasamy v. Gnanasekeram (supra). It does not appearto me to be sound law to permit a defendant to repudiate a contractand thereupon specifically to rely upon a statutory defence arising onthe contract which he repudiates.
How can a person who denies the tenancy be entitled to insist on aproper termination of the tenancy which, according to him, neverexisted. A defendant cannot be allowed to deny the existence of thecontract of tenancy and in the same breath claim the benefits of that
contract; the doctrine of "approbate and reprobate’ forbids this. It isonly when the defendant admits the contract that he can claim thebenefits of the contract.
In Muttu Natchia v. Patuma Natchia, (3) Browne, J. with Lawrie.J., agreeing, held that a tenant who disclaims to hold of hislandlord and puts him at defiance is not entitled to have the actionagainst him dismissed for want of a valid notice to quit. This ruling hasstood the test of time and has been accepted as part of our law – videSundra Ammal v. Jusey Appu (4), Pedrick v. Mendis (b,Hassan v.Nagaria (6), Mansoor v. Umma (7). Subramaniam v. Pathmanathan(8).
"In the case of Doe v. Frowd (9) Best, C J., ruled that –
'a notice to quit is only requisite where tenancy is admitted onboth sides and if a defendant denies the tenancy there can be nonecessity for a notice to end that which he says has no existence."
When the defendant disclaims the tenancy pleaded by the plaintiff hestates definitely and unequivocally that there is no relationship oflandlord and tenant between the plaintiff and him to be protected bythe Rent Act.
The rationale of the above principle appears to be that a defendantcannot approbate and reprobate. In cases where the doctrine ofapprobation and reprobation applies, the person concerned has achoice of two rights, either of which he is at liberty to adopt, but notboth. Where the doctrine does apply, if the person to whom thechoice belongs irrevocably and with full knowledge accepts the one hecannot afterwards assert the other; he cannot affirm and disaffirm.Hence a defendant who denies tenancy cannot consistently claim thebenefit of the tenancy which the Rent Act provides. For the protectionof the Rent Act to be invoked the relationship of landlord and tenant,between the plaintiff and him which is governed by the Rent Actshould not be disputed by the defendant.
Yhe fundamental object of the Rent Act is to give the tenant securityof tenure by preventing the landlord from evicting him without an orderof court and forbidding the court to make an order for possessionexcept on certain specific grounds. That security of tenure is not to bevouched to a person who repudiates the very basis of the Act, viz .,the relationship of landlord and tenant and who claims possession ofthe premises, not under the plaintiff, but against him. The provisions of
the Rent Act must be construed reasonably with a view to promote theobject of the Act and not to defeat its purposes. Where literalinterpretation would tend to defeat the obvious intention of thelegislature or to lead to a wholly unreasonable result, it is to berejected in favour of a purposive construction. This process mayinvolve putting a construction which modifies the literal meaning of thewords of the Act. in order to produce a reasonable result. Where thedefendant by his conduct or pleading makes it manifest that he doesnot regard that there exists the relationship of landlord and tenantbetween the plaintiff and him, it will not be reasonable to include him inthe concept of "tenant* envisaged by section 22 of the Rent Actalthough the court may determine, on the evidence before it, that he isin fact the tenant of the plaintiff. Since such a person had by his wordsor conduct disclaimed the tenancy which entitles him to the protectionof the Rent act, it will be anomalous to grant him the protection of atenancy, which, according to him, does not exist. Invito beneficiumnon datur (D50. 17. 69) said the Romans-the law confers upon aperson no right or benefit which he does not desire. Whoeverabandons or disclaims a right will lose it. The defendant has to blamehimself for this consequence.
The decision in Edirisinghe v. Patel (supra) has erred in overlookingthe above principles and in holding the conduct of the defendant asirrelevant. Hence it was not correctly decided and should not befollowed. I prefer to follow the judgment of Victor Perera, J. withwhom Wimalaratne, J. and Colin-Thome J. agreed, on the question inissue. As the 2nd defendant is the tenant of the plaintiff and as shehad wrongfully denied the tenancy, she was not entitled to th€ benefitof the provisions of the Rent Act. It was not necessary to give anynotice of termination of the tenancy to her. Hence, the plaintiff isentitled to judgment as prayed for. The Court of Appeal on a wrong 1conception of law has reversed the judgment of the District Judgedirecting the ejectment of the defendants.
I set aside the judgment of the Court of Appeal and allow the appealand restore the judgment of the District Court. Thedefendant-respondents will pay the costs of the plaintiff in all threecourts.
WIMALARATNE, J.-1 agree.
COUN-THOMfc, J. -1 agree.
RANASINGHE, J. -1 agree.
WANASUNDERA, J.
I regret that I cannot agree to the judgment subscribed by the majority.
There is undoubtedly a series of old decisions to the effect that atenant who disclaims the contract of tenancy would not be entitled toplead the want of a valid notice to quit. But these cases were decidedin the context of the common law. The question now before us is :Have the statutory provisions of the Rent Act, No. 7 of 1972, madeinroads into this principle ? I am inclined to think they have.
Under the common law relating to periodic tenancies, a notice toquit is required to bring the tenancy to an end prior to the filing of anaction for ejectment. The Rent Act has created a statutory relationshipbetween landlord and tenant drastically altering some common lawconcepts and has been designed to ensure a great measure ofsecurity and protection to tenants.
For the purpose of this appeal, it would be adequate if we look atonly a few of the relevant provisions of the Rent Act dealing withproceedings for ejectment. The statutory provisions severely restrictproceedings for the eviction of a tenant, and the protection afforded tothe tenant is secured by provisions in the nature of a limit on thejurisdiction of the court and also by requiring vigilance on the part ofcourt in seeing compliance with the statutory provisions. The mainprovision, section 22(1), states that 'no action or proceedings for the
ejectment of the tenantshall be instituted in or entertained by
any court, unless . . .' and sets out the requirements. (The emphasisis by me.)
The provisions of section 22 (3). which are directly applicable tothis matter, are as follows
'The landlord of any premises referred to in subsection (1) orsubsection (2) shall not be entitled to institute, or as the case maybe, to proceed with, any action or proceedings for the ejectment of
the tenant of such premises on the ground that the rent of such
premises has been in arrear for three months or more, or for one
month, as the case may be. after it has become due,-
(a) if the landlord has not given the tenant three months' notice of;the termination of tenancy if it is on the first occasion on whichthe rent has been in arrear. two months’ notice of thetermination of tenancy if it is on the second occasion on whichthe rent has been in arrear and one month's notice of thetermination of tenancy if it is on the third or any subsequentoccasion on which the rent has been in arrear; or
{b) if the tenant has prior to the institution of such action orproceedings tendered to the landlord all arrears of rent; or
(c) if the tenant has, on or before the date fixed, in such summonsas is served on him, as the date on which he shall appear incourt in respect of such action or proceedings, tendered to thelandlord all arrears of rent.'
(Once again the emphasis is by me.)
It is evident from the above that this statutory provision is in thenature of a bar preventing the court from entertaining or proceedingwith a matter in the absence of a requisite notice, which itself has tobe computed and is made dependent on the existence of certain othercircumstances. There is a duty on the court to give effect to thisprovision and it is incumbent on the court to see that the requirementsset out in the statute are established to its satisfaction. Having regardto these statutory provisions, there is no room for the application of*the principle laid down in the cases referred to in the majorityjudgment.
In this view of the matter, I am of the view that Edirisinghe v. Patel.'(1) decided by Pathirana. J. and Sirimanne, J. has been rightly decidedand the Court of Appeal has also come to a right conclusion.
For these reasons I would dismiss the appeal with costs.
Appeal allowed.