SAMARAWEERA, Appellant, and RANASINGHE, Respondent

089-NLR-NLR-V-59-SAMARAWEERA-Appellant-and-RANASINGHE-Respondent.pdf

BASXAYAIvE, C’.J.—Sanutrawccra t Ranustnyhe
395
Present :Basnayake, C.)., de Silva, J., and Sinnefamby, J.
SAMARAWEERA, Appellant, and RANASINGHE, Respondent.S'. C. 270—D. C. Colombo, 33,371/M'
Rent Restriction .let. .Vo. 29 of I91S—Xoticc to quit—Duty of tenant to pay rent there-after—Sections 13 (/) amt 11.
The Rent Restriction .Act imposes on a monthly tenant the obligation ofpaying rent even after the contract of tenancy lias been determined by noticeto quit. Proceedings, therefore, for his ejectment can bo instituted if liis rent is inarrear at any time thereafter for one month after it lias become due.
Per Basnayake, C.-J.—The tenant is bound to pay tho rent even if tliolandlord informs him or indicates to him that ho is not prepared to receive it.
^AlPPEAL from a. judgment of tho District Court, Colombo.
II. V. Perera, Q.C., with 31. L. de Silva and ilfis-3 Maureen Semviralne,for Defendant-Appellant.
S. Jayaivickrenta, Q.C., with IS. Gooneralne, for Plaintiff-Respondent..
Cur. adv. vuft.
April 2, 105S. Bas.vav.-ikb, C.J.—'*
The main question for determination on this appeal is whether pro-ceedings for the ejectment of a monthly tenant who does not pay rentafter his contract of tenancy has been determined can be instituted on theground that his rent is in arrear for one month after it has become due.
Shortly the facts are as follows : The appellant. became the tenantof the respondent’s premises No. 236 Dam Street, Pettah, on 1st March1953 on a monthly rental of Rs. 160. On 21st April 1953 tho respondentgave notice terminating the appellant’s tenancy on 31sb May 1953 andon I2th June 1953 instituted an action in the Court of Requests of Col-ombo to have him ejected on the ground that the premises were reasonably *
396
BASNAYAKE," G.J.-^-Samaraweera v. Ranasinffhe__
required by him for his om use and occupation. On 21st July 1953this action was withdrawn of consent. On 4th December 1953 the res-, ”pondent once more instituted an action for the ejectment of the appellant., 'This action was instituted in the District Court of Colombo. . On 2nd. August" 1954 it was withdrawn of consent with liberty to file a freshaction and reserving to the defendant, in any subsequent action againsthim by the’respondent-, the right to interpose the claim in reconventionpreferred in the action. On 6th October 1954 the present action wasinstituted and ejectment was sought on the ground that the rent- was inarrear for one month after it had become due. The respondent claimed asum of Us. 820 being rent for April, May, June, July, August and Sep-tember 1954. It is common ground that the rent for April, May and June1954 was paid to the respondent’s Proctor on 2nd August 1954, the dayon which the previous District Court action was withdrawn, and that hereturned the money to the appellant a few days later..
. ' Learned counsel for the appellant submitted that once the contractof tenancy is terminated by a landlord he is not entitled to claim rent fromthe overholding tenant but only damages, and that the tenant is also underno obligation to pay rent but his liability is to pay damages. He further' -submitted that a tenant whose tenancy has been terminated cannottherefore be said to be in arrear in regard to his rent after it has become-due. He contended that what a tenant is under no legal obligation to' pay cannot be said to be due.
If we were considering only the common law rights of landlord and■tenant- learned counsel’s contentions would be unexceptionable. Buthere we are dealing with a statute upon the true construction of which ’depends the answer to his submissions..
Section 13 (1) of the Rent Restriction Act-, No. 29 of 1948, curtailsthe common law rights of the landlord to institute proceedings in eject-meat against his tenant and enlarges the rights of the tenant against -whom proceedings in ejectment cannot be instituted except in the casesin which the statute permits it. In fact the section affords protection tothe tenant against the landlord’s exercise of his common law remedies. "Once a tenant loses this protection the landlord is free to institute legalproceedings in ejectment. One of the ways in which this protection canbe lost is bj' allowing the rent to be in arrear for one month after it hasbecome due. While protecting the tenant against ejectment except incertain circumstances the statute has by implication imposed on himthe obligation of paying rent even after the contract of tenancy is deter-mined if he is to continue to receive the protection. The obligation isthat he must pay the rent on the due date. Now what is the due date■once the contract has been terminated ? At common law rent becomes-due on the date agreed on as the date on which it’should be paid. As .* the statute does hot prescribe a date as the due date it must be presumed _that the Legislature had the contractual date in contemplation. -.’•
i -Learned counsel also, submitted that the tenant is not bound to pay ''the rent if the landlord informs jhim. or indicates to him. that he is notprepared to receiypjt.-p;ITdo not think-the tenant pan refrain from paying"the rent on 111at-'gr oundJLncl claim the protection of the Act. If he is to -.avoid an action in. ejectment he must fulfil, his statutory obligation, viz..
SIXXETAMBY, J.—Samaraurccra v. Jtanasinghe
397
pay his rent on tho cue date to the landlord. Learned counsel for theappellant relied on the case of Vadivel Chelty v. Abdu.1 With respectI find myself unable to agree with the view expressed by my brother.Weerasoorij'a in that case that the tenant cannot be said to be in defaultif as a result of the landlord’s conduct in refusing acceptance of the rentfor a previous month the tenant does not tender the rent for a subsequentmonth on the ground that the tender would be useless. The statutoryobligation must be fulfilled if the statutory protection is to be claimed.The tenant is not entitled to say that he did not pay the rent because ofthe landlord’s attitude (vide my judgment in Bazik v. Esufally 2).
The tenant cannot avoid the consequences of his rent being in arrearfor more than a month after it has become due by tendering the arrearsin a lump sum. The moment the rent falls into arrear for more than amonth he forfeits the protection afforded by the Act and the landlordbecomes free to proceed against him in ejectment and there is nothingthe tenant can do thereafter to prevent it. (J/. 21. Dias v. P. Vincent■Gomes 3; Fernando v. Samaraiveera ■’).
The appeal is dismissed with costs.
i>e Silva, J".—I agree.
Sevxetaxebv, J.—
This is an action in wliich the purchaser of a property seeks to eject a-tenant who was in possession and who had attorned to him. Short yafter his purchase the plaintiff gave the defendant notice to quit on-21/4/1953 requiring defendant to quit and deliver possession on 31/5/1953.He filed C. R. Case Xo. 46181 on 12/6/1953 and, in order to dispensewith the authorisation of the Rent Restriction Board, stated that thepremises were reasonably required for his own use. That action waswithdrawn on 21/7/1953 : it is not known for what reason.
The plaintiff gave another notice on 7/10/1953 requiring possession on30/11/1953 and followed it up by instituting action No. 30633 in theDistrict Court on 4/12/1953. Once again the ground on which dispen-sation of the Board's permission was sought was the reasonable require-ment of the premises by the plaintiff. There seem to have been somenegotiations for a settlement between the parties and this action was byconsent withdrawn by the plaintiff on 2/S/1954 with liberty reserved toplaintiff to institute a fresh action. The trial judge has foimd that onthe same day but after the withdrawal of the action a sum of Rs.^4S0was tendered by money order to the plaintiff’s proctor in plaintiff’s-presencc. Subsequently on 3/S/1954 a money order for Rs. 55 and acheque for Rs. 105 were sent to- plaintiff’s proctor. These sums were.returned on 6/8/1954.‘.-..
While D. C. Case No. 30633 was pending the defendant from time totime sent the plaintfff sums of money equivalent to the. rent of the pro- ,imises but fell into arrears for, the months, ofAprilMay and June,' 1954.
1 (7963) So t. Jt. 67d l- /U/ > – V-V ‘(1954) gS X-. &: Wl 337— r .
* 11937) SSX. A. Jt. 469' '/ .* (1962) 53 N. L. It. 3S2. ■
39S
SIlvNETAMBY, J.—Samaraweera'v. Jianasinghe
The cheque for Rs. 4S0 which was tendered on 2/8/1954 along with excess-rent would have covered the "rent” for these three months had the tenancy-been in existence, but it would nevertheless have been in arrears formore than one month after it became due.. .
On 20/8/1954 the plaintiff gave defendant a fresh notice to'quifanddeliver possession on the 30th September, 1954, and when defendantfailed to do so instituted the present action on G/10/1954. On t-hiaoccasion the plaintiff sought to dispense with the authorisation of the'Rent Restriction Board on the ground that defendant had been in arrearsof rent for more than one month after it had become due. The learnedtrial Judge held with the plaintiff and the appeal is against that decision.
Mr. H. V. Perera’s contention was that by instituting action No. 30633the plaintiff intimated to the defendant that he was repudiating thecontract of tenancy and that he would not accept rent in respect of thepremises—indeed in the action he claimed damages : the defendant wasin the circumstances not liable to pay any rent: that if he did pay anysum of money as rent it was not open to the plaintiff to accept it asdamages. His contention was that a tender of money on one basis by adebtor to his creditor must be accepted by the creditor on the basis onwhich it is tendered and that it was not open to the creditor to accept iton any other basis : if the creditor sought to accept it on any other basisit amounted to a refusal to accept and thereafter it was not obligatoryon the part of the debtor to make a tender in respect of a future paymentunless the creditor intimated his willingness to accept the tender on thebasis on which it was offered.-
Applying his argument to the facts of the present case Mr. Pereracontended that- by instituting D. C. Case No. 30633 the plaintiff inunequivocal terms intimated to the defendant that he was not willing toaccept rent but demanded damages. The effect of this refusal to accept-rent made it unnecessary to make any payment until the plaintiff laterdemanded it—in the present case the withdrawal of the action may beregarded as a demand when the defendant may pay within a reasonabletime. In support of his latter argument he relied on the case of VadivelChetly v. Abdu *..
Section 14 of the Act on which the learned Judge relied, he contended,does not apply to the fa,cts of this case for two reasons : first, the District-Court ease was withdrawn reserving to the plaintiff the liberty' toinstitute a fresh action and not dismissed and secondly', it was not dis-missed by reason of the provisions of the Act. With this contention Iagree : it cannot be said that the withdrawal even if it amounted to adismissal was by reason of the provisions of the Act. The reason for thewithdrawal was manifestly not because any of the provisions of the Acthad been infringed but because of an undisclosed agreement reached bythe parties..-
Mr. Perera’s attractive argument ns a pure matter of law certainlydid commend itself to me and might well have formed the basis ofmy judgment but for the existence of certain earlier decisions of thisCourt taken in conjunction with the object which tho legislation in -question intended to achieve. Taken to its legical conclusion Mr. Perera’s
1 {1953) -55 A*. Z,. Tt. 07.
SI^OCETAMBV, J.—Scimaraircera v. Jianasinghe
309
argument amounted to this : once the landlord repudiates the contractof tenancj- by notice to quit lie refuses to accept rent and the tenantis under no obligation to tender the rent until the landlord changes his-mind and expresses his willingness to accept it; a notice to quit is arepudiation; thereafter, in order to keep the “ statutorj' ” tenancyalive, a tenant need not pay at all until the notice is withdrawn. Thisplaces a tenant in a position of undue advantage. On notice being givenhe need not pay rent but is entitled to occupy the premises till the actionwhich is instituted is disposed of. The final decision may take severalj ears particularly if there is an appeal, and if the landlord fails he stillhas a reasonable time in which to pay the arrears. This was clearlynot the intention of the legislature. The one cardinal principle whichforms the basis of the entire Act is that the tenant’s possession must-be preserved so long and only so long as he pays rent regularly. InEngland this difficulty does not arise in view of the provisions of section15 of the English Act wliich imposes on the “ statutory tenant ” all theobligations of the original tenancy. It may be contended that it isnot the function of the Courts to give effect to the intention of the legis-lature unless such intention is clear from the terms of the enactmentbut in regard to the Rent Acts both in England and here the intentionof the legislature has largely influenced the decisions of the Courts.
In Premalhiratne v. Elo Fernando 1 this Court held that “ so long as atenant enjoys a statutory right of occupation notwithstanding the-termination of the earlier conti'act, a statutorj^ obligation is imposedon him to pay monthly 'rent’ at the original contractual rate”. Thiswas followed by Vincent v. Sumarasena 2 wherein it extended the ruleto cover the period of the pending of an action brought by the landlordto eject the tenant. This latter case is a complete answer toMr. Perera’s argument and we are asked in effect to over-rule it. It isto be noted that Mr. Perera eventual!}' did not ask us to hold that anotice to quit rendered it unnecessary for a tenant to pay “ rent ”regularly in order to preserve his statutory protection, but only that theinstitution of an action had that effect.
To hold that a “ statutory tenant ” must pay “ rent ” after noticebut need not do so after institution of action in order to prevent theoperation of section 13 of the Act would be to make the situationstill more illogical..
The best solution to the problem would no doubt be by legislation butuntil such time I would prefer to follow the trend of judicial decisionsin this country and not disturb the basis on which tenants have thusfar conducted themselves in an attempt to fulfil their contractual andlegal obligations as " statutory tenants”. To do otherwise would beto create a situation which from the point of view of tho landlord mightwell prove to be disastrous.-.
I agree with my Lord the Chief Justice that the appeal should bedismissed with costs.
Appeal dismissed.
{195-i) 55 -V. L. R. 3C9.
5 {1954) 55 X. Zr. R. 478.