COURT OF APPEAL.
RANASINGHE, J. AND RODRIGO. J.C.A. 615/73 (F) D.C. GALLE 7822/L.JUNE 3. 1981.
Landlord and tenant—Arrears of rent—Action for ejectment—Claim by tenant that hehad overpaid rents—Schedule of payments set out in answer—Burden of provingpayment in this manner to be on defendant—Validity of notice to quit—RentRestriction Act (Cap. 274) as amended by Act No. 12 of 1966, section 12 (A) (1) (a).
The plaintiff filed this action against his tenant, the defendant seeking ejectment,inter alia, on the ground of arrears of rent. He claimed that the rent was Rs. 50 permonth and that the defendant paid no rent from 1st June, 1966. Notice of terminationof tenancy was sent on 30th March, 1969, to take effect at the end of April, 1969.The defendant while denying the allegations in the plaint admitted the receipt of noticeterminating the tenancy, but did not admit its validity. He, however, averred that hetook the premises at a monthly rental of Rs. 200 and had paid all rents until the end ofApril, 1969, setting out the manner of payment in a schedule to his answer. He allegedthat the authorised rent was Rs. 62.61 per month and that he had overpaid a sum ofRs. 3,495.56, claiming the same in reconvention.
The learned trial Judge found that the agreed rent was Rs. 200 per month and theauthorised rent was Rs. 62.61, but held that the defendant had not proved paymentas set out in the schedule to his answer. He also held that the plaintiff has not provedthat the defendant was in arrears of rent for over three months until after it had becomedue and that the notice terminating the tenancy was invalid.
(1) The defendant had chosen a specific method of disproving the plaintiff's assertionthat the rent was Rs. 50 per month and that he was in arrears and sought to prove theschedule of payments he relied on. He had, however, failed in this attempt. All thatthe plaintiff could have done was to state on oath that the defendant had not paidhim the rent and subject himself to cross-examination on this matter; but the defendantwho makes a positive assertion as in this case is required to produce evidence of paymentand this the defendant had failed to do. The learned trial Judge was wrong in holdingthat the rent was Rs. 200 per month and that the plaintiff had failed to prove that thedefendant was in arrears as claimed by him.
(2) The learned trial Judge was wrong in holding that the notice terminating the tenancywas invalid as all that was required by the Rent Restriction Act (Cap. 274) as amendedby Act No. 12 of 1966 (section 12 (A) (1) (a) ) was that the rent should be in arrear forthree months or more. Once the tenant forfeited the protection of the Act on thisground a calendar month's notice of termination of the tenancy was sufficient.
Sri Lanka Law Reports
(1981) 2 S.L.R.
Cases referred to
(1) Sirisena v. Pieris, (1970) 74 N.L.R. 174.
12) Nilamdeen v. Nanayakkara, (1973) 76 N.L.R. 169.
APPEAL from the District Court, Galle.
H. W. Jayewardene, Q.C., with M. I. M. Sally and Lukshman Perera, for theplaintiff-petitioner.
T. B. Weerakoon, for the defendant-respondent.
Cur. adv. vult.
The plaintiff-appellant died pending this appeal. The defendant-respondent too died after that. Their respective widows have nowbeen substituted in their place. To assist clarity I shall in thisjudgment refer to the plaintiff-appellant as 'plaintiff' and thedefendant-respondent as 'defendant'.
The plaintiff has instituted this action to eject the defendantfrom premises No. 45, Pedlars Street, Galle. He was also claimingarrears of rent and damages. He was seeking the ejectment of thedefendant on three grounds. He alleged in his plaint that thedefendant was in arrear with his rent for over three months afterit fell due. He has said that the defendant had not paid rent from1st June, 1966. Notice terminating the tenancy had been sent onMarch 30, 1969, to vacate the premises at the end of April 1969.The plaintiff has also alleged that the defendant has partitionedthe rooms in the premises with planks and sub-let the said rooms.He alleged further by the said partitioning of the rooms withplanks, the defendant has caused wanton and wilful damage to thepremises. These are the three grounds relied on by him forejectment of the defendant.
The 1st defendant in his answer denied all these allegations. Headmitted the receipt of the notice terminating the tenancy butdenied its validity. He said that he came into the premises as atenant on January 1, 1964. He said he took the premises at arental of Rs. 200 per mensem and paid the plaintiff three months'advance of rent in a sum of Rs. 600. He had paid rents till the endof April 1969 according to his answer in the manner set out in hisschedule thereto. It is said in his answer that when he tendered
Saheed v. Wickramanayake (Rodrigo, J.)
the rent for May 1969 the plaintiff refused to accept it. He allegedthat the authorised rent of the premises is Rs. 62.61 per monthand he had over-paid the plaintiff a sum of Rs. 3,495.56 as at theend of January 1971 and claimed in reconvention a refund of thissum of money.
At the trial counsel for plaintiff raised an issue to cover theplaintiff's allegation that the defendant partitioned the premisesand sub-let them and that by so partitioning the premises thedefendant caused wanton and wilful damage. The issue wasobjected to by counsef for the defendant as the averments in theanswer in regard to this issue are not in conformity with section40 (d) of the Civil Procedure Code, read with section 44 thereof.He argued that section 40 (cO requires that the circumstancesconstituting the cause of action should be averred and that theplaint in respect of this matter does not give the circumstances.He said that the particulars and more particularly the datesrelating to the partitioning of the premises and the causing ofdamages are important for him but that they had not beenpleaded. The Judge of first instance upheld the objection and theplaintiff had not pursued it any further. The trial thereforeproceeded to determine whether the monthly rental of thepremises was Rs. 50 as averred by the plaintiff or Rs. 200 asaverred by the defendant; whether the defendant was in arrearwith the rent for over three months after it had become due;whether the notice terminating the tenancy was valid; whetherthe authorised rent of the premises was Rs. 62.61; whetherthe defendant had paid rent at Rs. 200 per month in the mannerset out in the schedule to his answer and what amount, if any,were the parties entitled to recover from each other by way ofarrears and damages or by way of excess payments of rent.
The trial Judge has reached a finding that the agreed rent wasRs. 200 a month as averred by the defendant but that he hadnot proved that he had paid Rs. 200 a month as set out in theschedule to his answer; that the defendant therefore is not entitledto his claim in reconvention; that the plaintiff has not proved thatthe defendant was in arrear with his rent for over three monthsafter it had become due; that the notice terminating the tenancyis not valid and that the authorised rent of the premises isRs. 62.61.
These findings are attacked on behalf of the appellant as some
Sri Lanka Law Reports
(1981) 2 S.L.R.
being inconsistent with one another and all being inconsistentwith the evidence led in the case. It is argued that when the trialJudge reached a finding that the defendant had not proved hispayments according to the schedule to his answer and the burdenof proving which he took upon himself by a specific issue in thatregard, it is not open to him in the same breath, to say that theplaintiff has not proved that the defendant was in arrear with hisrent for over three months. This appears to me to be an exercise inlogic. The trial Judge has found that he could place no reliance atall on any item in the schedule of payments put forward by thedefendant. The defendant had been cross-examined item by itemin the schedule. The defendant at one stage, so the trial Judgefinds, was constrained to admit that his schedule of payments wascompletely wrong. The plaintiff said that he gave receipts to thedefendant whenever rent was paid to him. The defendant did notchallenge this. Neither did he produce the receipts. Nor has theplaintiff noticed the defendant to produce the receipts. One canwell understand why the plaintiff did not so notice the defendant.The defendant had denied that the rent was Rs. 50 per mensem.In the circumstances it would have been futile for the plaintiffto require the defendant produce the receipts. The receipts, ifin fact, they had been given, would have given the lie direct to thedefendant's contention. Even so, the Judge had viewed theplaintiff's evidence with disfavour. He could not bring himself tobelieve that the plaintiff would have given these premises lo thedefendant for a sum as low as Rs. 50 per mensem. The plaintiffhad bought these premises for his own occupation. He found thatit was difficult for him to continue where he was as his bedroomswere upstairs and he could not climb the stairs as he was too ill forthat He, therefore, had slept in thedining room. In that situationhe would have ordinarily moved into the house he had purchasedwithout delay. Still, he had rented it out to the defendant. Thereason advanced was that the defendant was pleading with himand his wife. The defendant had promised to vacate the premisesin a very short time. The defendant, however, had continuedwithout trouble for as long as Mirch 1969. The plaintiff, however,had said that he had repeatedly requested the defendant to handover the premises. This had been done verbally. From the veryfirst month of occupation of the premises by the defendant it wasthe defendant that had paid the rates. When rates are deductedfrom the rent of Rs. 50 per month what was left to the plaintiffout of the rent was less than Rs. 25. The trial Judge thereforethought that it was more probable that the rent would have
Saheed v. Wickramanayake (Rodrigo, J.)
been much higher than Rs. 50 per month. The plaintiff has alsonot impressed the trial Judge as a witness. Too often he had saidfrom the witness box that he could not remember when questionswere put to him. The trial Judge thought that he was exploitinghis apparent illness to give false answers. The question still remainsas to whether the Judge was right in concluding that the rent permonth was Rs. 200 as said by the defendant. The quantum ofrent was not important to the central issue in the case:it iswhether the defendant has been in arrear with his rent for threemonths or more. It did not really matter what the amount of therent was. This had, however, a bearing on the credibility of theparties. How did the Judge reach this finding that the rent wasRs. 200 per mensem as testified to by the defendant? One cannotignore the fact that the defendant joined issue with the plaintiffon the amount of rent and that he was in arrear. The defendantdrew the plaintiff into a pitched battle of falling or standing withthe defendant's assertion that the rent was Rs. 200 and thatthere was no arrears. He positively asserted that he had made thepayments according to the schedule which he produced. Heclaimed a large sum of money in reconvention. The plaintiff hadto meet this. It is not as if the defendant had put the plaintiff toproof that the rent was Rs. 50 and that he was in arrears. Thedefendant deliberately chose a specific method of disproving theplaintiff's assertions. He sought to prove his schedule of payments.He failed in that. Is it then open to him to say 'It is true I havefailed in my attempt to prove my assertions. But still you have notproved your assertions?' Is it not the position that when thedefendant has made a positive assertion and sought to prove itwith a view to disproving the plaintiff's assertion that he cannotfall back on the right which he had to ask the plaintiff to prove hiscase independently of the defendant's version? While the assertionof the plaintiff and that of the defendant cannot both be true,they can both be false. The plaintiff after ail was seeking to provea negative. In the nature of things the best evidence of the negativeassertion is negativeness. What evidence can a plaintiff give or putforward before a court when the plaintiff says that the defendanthad not paid him rent from a particular month. The best evidencerule will not enable him to do anything more than to say onoath that the defendant had not paid him rent and standcross-examination on that denial. But a defendant who makes apositive assertion is required by the best evidence rule to produceevidence of payment This he attempted to do and failed.
Sri Lanka Law Reports
There is this case: H. D. Sirisena v. Pieris (1). Here the plaintiffasserted that he rented out his premises to the defendant forRs. 7.50 per month. The defendant said that the plaintiff hadtaken Rs. 15 per month. He said the plaintiff did not issue himreceipts, ever. The Chief Justice (H. N. G. Fernando) observedthat "the proved conduct of the parties afforded the best test as tothe truth of their conflicting evidence ori this question." That is,what the rent was, and for what period the defendant was inarrears. I think in this case too that test would be appropriate. Letme run over the evidence of their conduct. The defendant deniedthe plaintiff's allegations. He chose to prove positively what thetrue position was. He did not succeed. As against that it is ratherstrange that the plaintiff should have been content with a smallamount of rent after the payment of taxes and that he should havecontinued for long to let the defendant occupy the premises whenhis needs of occupation were urgent. This must remain a mystery.It will not detract from the effect and repercussions of theattempt and failure of the defendant to prove what he said was thetrue position. In my view, therefore, the Judge was wrong inholding that the rent was Rs. 200 per month and that the plaintiffhad not proved that the defendant was. jn arrear with his rent forthree months or more.
There are two more points that need mention. The Judge hadheld that the notice of termination is invalid. What he means bythat is not clear. The notice validly terminated the common lawtenancy. What the section, that is, section 12 (A) (1) (a) of theRent Act, No. 29 of 48, as amended by Act No. 12 of 66requires was that a tenant Could not be ejected from premises therent of which for a month does not exceed Rs. 100 except,inter alia, on the ground that the rent of such premises had been inarrear for three months or more. In the instant case the plaintifffell into arrears within the meaning of this section in June 1966.He forfeited the protection of the Act on this ground in June1966. The notice terminating the tenancy did not require for itsvalidity anything other than that that it should be a calendarmonth's notice. The plaintiff's cause of action arose when defendantfell into arrears, within the meaning of section 12(A) (1) (a) ofthe Rent Restriction Act, No. 29 of 48. See Nilamdeen v.Nanayakkura (2). (A judgment of the then Court of Appeal). I,therefore, hold that the Judge was wrong in his finding that thenotice terminating the tenancy was invalid.
Saheed v. Wickramanayake (Rodrigo, J.)
A point was sought to be raised for the first time in appeal bycounsel for the defendant that the action could not have beenmaintained in any event in the Court below as the plaintiffs causeof action to recover his arrears of rent was prescribed. What thecounsel meant by that was not clear. In any case since no suchplea had been raised in the court below either in his pleadings or inthe form of a issue we indicated to him that such an issue, even ifit had any merit on the face of it, and we thought there was none,could not be raised for the first time in appeal as it is a mixedquestion of fact and law. What little enthusiasm counseldisplayed in raising this point thereafter quickly evaporated andhe did not press it any further.
We finally take the view that the plaintiff has proved that herented these premises to the defendant at Rs. 50 per month andthat the defendant was in arrear with his rent within the meaningof the section of the Rent Act referred to, for three months or moreand thus has forfeited the protection given to him by the RentAct. The plaintiff must therefore succeed in this appeal. Weaccordingly allow his appeal with costs here and in the Courtbelow. We set aside the judgment of the learned trial Judge andenter judgment as prayed for by the plaintiff. The defendant'swidow has been substituted in his place and she and her servantsand agents are accordingly liable to be ejected in terms of thisjudgment from the premises in suit.
RANASINGHE, J.-l agree.