008-NLR-NLR-V-70-S.-RATNAM-Appellant-and-S.-M.-K.-DHEEN-Respondent.pdf
SAMKRAW1CKKAME, J.—Ralnam v. Dheen
21
1967Present : Samerawiekrame, J.
S. RATNA5I, Appellant, and S. M. K. DHEEN, RespondentS. C. 72 [66—C. R. Matale, J4982/RE
Rent-controlled premise•—Tenant in arrears of rent for more than 3 months after itwas due—Failure of landlord to give 3 months' notice of termination of tenancy—Action in ejectment—Maintainability—Scope of s. 4(1) of Rent Restriction(Amendment) Act, No. 12 of 1066—Rent Restriction Act, as amended by ActNo. 10 of 1061 and Act No. 12 of 1566, ss. 12 A (1), 13 (1A)—Civil ProcedureCode, s. 46 (2) (i).
Plaintiff sought ejectment of the defendant, his tenant, on the ground thatthe latter had failed to pay rent for five months and was continuing to remainin unlawful occ upation in spite of one month’s notice given to him to leave thepremises. The action was filed on the 6th July 1965. The premises weregoverned by the Rent Restriction Act and their standard rent was belowRs. 100.
Held, that the plaintiff’s action was not maintainable for the reason thatalthough the f laint averred as a fact that rent had been in arrears for more thanthree months after it was due, three months’ notice of termination of tenancyin conformity with the requirement of secton 13 (1A) of the Rent RestrictionAct, as amended by Act No. 10 of 1961, had not been given. The action couldnot be said to have been brought on a ground on which an action is now per-mitted to bo brought by section 12A of the Rent Restriction Act, as amendedby Act No. 12 of 1966. The plaint should have been rejected in limine in termsof section 46 (2) (i) of the Civil Procedure Code.
A
PPEAL from a judgment of the Court of Requests, Matale.
Siva Rajaratnam, for PIaintiff-Appellant.
N.R. M. Daluivatte, for Defendant-Respondent.
Cur. adv. vult.
August 23, 1967. Samerawickrame, J .—
The plaintiff-appellant instituted this action for the ejectment of thedefendant-respondent, his tenant, on the ground that the latter hadfailed to pay rent for five months and was continuing to remain inunlawful occupation in spite of the notice given to him to leave thepremises. The action was filed on the 6th July, 1965. The premiseswere governed by the Rent Restriction Act and the standard rent thereofwas below Rs. 100.
At the trial, learned counsel for the defend ant-respondent raised oneissue only and stated that he was not raising any other issues for thepresent. The issue he raised was as follows :—
Can the plaintiff have and maintain this action in view of theprovisions of Section 4 (1) of the Rent Restriction Act as amendedby Act No. 12 of 1966 ?•
He submitted that as the action was instituted after the 20th July, 1962,and was pending at the time of the date of the commencement of Act
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SAMERAWICKRAME, J.—Ratruxm v. Dheen
No. 12 of 16C6, the action wa3 void. The learned Commissioner hasanswered the issue in favour of the defendant-respondent, apparently,on the footing that all actions for the ejectment of the tenant of anypremises to which the Rent Restriction Act as amended by Act No. 12 of19C6 applied were void.
This Court has taken the view that Section 4 (1) of Act No. 12 of 19GGdoes not have the effect of invalidating all actions filed after the 20thJuly, 1962, and pending at the date of the commencement of that Act—vide K. P. C. Moosa v. 21 rs. S. P. Amir,1 and Charles Fernando v. T. P.de Costa2. It is necessary, therefore, to consider whether this actionis one which is void in terms of Section 4 (1) of Act No. 12 of 1966.
In his plaint, the plaintiff alleged that the defendant was in arrears ofrent for a period of five months to the 30th April, 1965 ; that by noticedated 7th May, 1965 the plaintiff required the defendant to quit andvacate the premises on or before the 30th June, 1965 ; that the defendantfailed to comply with the notice and was continuing in unlawful occupationof the premises. By reason of Section 13 (1 )A of the Rent RestrictionAct as amended by Act No. 10 of 1961, a landlord was not entitled toinstitute action on the ground that rent had been in arrears unless hehad given the tenant three months’ notice of the termination of thetenancy and the tenant had failed before the date of the termination ofthe tenancy specified in the notice to tender to the landlord all arrearsof rent. The Rent Restriction Act as amended by Act No. 10 of 1961was the law actually in force at the date of the institution of the action.According to the averments of the plaint, the plaintiff had failed to givethree months’ notice of the termination of the tenancy and had thusfailed to give the defendant, his tenant, an opportunity of tenderingto him arrears of rent before the date of the termination of the tenancyspecified in the notice. In terms of the law in force at the date of theaction, the plaintiff’s action would accordingly have failed.
Act No. 12 of 1906 came into operation on the 10th May, I960 and bySection 2 introduced a new Section, 12A, which set out grounds uponwhich a landlord could ask for ejectment of the tenant of premises ofwhich the standard rent did not exceed Rs. 100. One of the groundsis that the rent of the premises has been in arrears for three months ormore after it has become due. There is no requirement that threemonths’ notice of termination of tenancy should be given to the tenantor that he should have an opportunity of paying the arrears during suchperiod. Section 4 (1) of Act No. 12 of 19C6 stated
“ The Provisions of Sections 2 and 3 of this Act shall be deemed tohave come into operation on the twentieth day of July 1962, andaccordingly—
(a) any action which was instituted on or after that date and beforethe date of commencement of this Act for the ejectment of atenant from any premises to wfiich the principal Act as
* {19C6) 63 N. L. R. 44.
* {1967) 69 N. L. R. 381.
m SAMERAWICKRAME, J.—JRainam v. Dheen23
amended by this Act applies shall, if such action is pendingon the date of commencemnt of this Act, be deemed at alltimes to have been and to be null and void ”.
This Court has taken the view that Section 4 of Act No. 12 of 19GGdoes not apply to make void a pending action in which ejectment ofthe tenant was claimed on a ground set out in Section 12A (1) of theprincipal Act as, for example, the ground that rent has been in arrearsfor three months or more after it has become due. If that principle isapplicable to this case and the action is maintainable and the provisionsof Act No. 12 of 19CG are applicable in determining this action, then theresult will be that the plaintiff can maintain an action which he could nothave maintained in accordance with the law actually in force at thedate of action and the defendant would be deprived of the defence thathe had not been given three months’ notice of the termination of thetenancy and had not been afforded an opportunity of tendering arrearsof rent to the plaintiff during that period. Mr. Daluwatte appearingfor the defendant-respondent submitted that it could not have been theintention of the Legislature to deprive a tenant who is the defendantto an action of a defence that was available to him in law by theretrospective operation of Act No. 12 of I960.
Where the Legislature makes an Act retrospective, it generally makessome provision in regard to pending actions. In Section 4 (1) theLegislature has provided that an action instituted after the 20th July,1902 and before the date of the commencement of the Act and pendingon that day should be deemed to be void. Upon an interpretation ofthat provision, this Court has taken the view in two cases that thatprovision would not apply to render void an action w’here it had beenbrought upon a ground upon which an action is permitted under Section12A of the Rent Restriction Act introduced by Section 2 of the saidamending Act.
The case of K. P. C. Moosa v. S. R. Amir dealt with premises, thestandard rent of which were over Rs. 100 and the action was broughtunder the provisions of Section 9 of the principal Act No. 29 of 1948which the learned Judge held were unaffected by Sections 2 and 3 of theamending Act. Further, in that case, the plaintiff-respondent hadobtained a decree for ejectment of the defendant on the basis of thelaw as it stood before tlie amendment. In Charles Fernando v. T. P.de Costa, the action was one brought, as in this case, on the ground thatrent had been in arrears for a period of over three months, but theplaintiff had obtained a decree for ejectment on the basis of the law asit then stood and the provisions of the amending Act were pleaded inappeal in order to defeat his rights. It will thus be seen that the Courtin that case did not have to deal witlj the situation where the plaintiffclaimed that by reason of th^ retrospective operation of the amendingAct he was entitled to have and maintain an action which would havefailed under the law which was actually in force at the date of the action
24SAMERAWICKRAME, J.—Batnam v. Dhcen ^
and where if the plaintiff’s claim were allowed, the defendant tenantwould have been deprived of the defence that he had not been givennotice of termination and an opportunity of paying arrears of rent tothe plaintiff. The application of the principle laid down in that case tothe present case where the facts are different would be wrong as it wouldhave a result that is both unfair and unjust.
It also appears that upon the averments in the plaint, the plaintiff’saction was one which he was not entitled to institute in view of the termsof Section 13 (1) A which was the law actually in force and applicableat the date of action. Under that law, the landlord of any premisesto which the Act applied was not entitled to institute action or proceedingsfor the ejectment of a tenant on the ground that rent was in arrearsunless he had given three months’ notice of termination of the tenancyand unless the tenant had failed to tender to him the arrears. Theaction, accordingly, was one which appeared from the statement in theplaint to be barred by a positive rule of law and, in terms of Section46 (2) (i) of the Civil Procedure Code, the plaint should have beenrejected.
Does this action fall within the principle applied in the decisions ofthis Court to which I have referred ? It is true that the plaint in thisaction averred as a fact that rent had been in arrears for more thanthree months after it was due, but at the time the plaint was filed thatfact did not constitute a ground for bringing an action for ejectment inthe absence of three months’ notice of termination of tenancy. Theaction was accordingly not in law brought on any ground. A fortioriit cannot be said that it was brought on a ground on which an action isnow permitted to be brought by Section 12A of the Rent RestrictionAct.
I am of the view that the ruling made in those decisions, namely,that Section 4 of Act No. 12 of 1966 does not operate to render void anaction for ejectment brought upon one of the grounds for which anaction is permitted under Section 12A, does not extend to this case asits application to it is negatived by the matters I have set out.Accordingly, I hold that the finding of the learned Commissioner thatthe action was void can be supported for the reasons given by meand I dismiss the appeal with costs.
Appeal dismissed.