COURT OF APPEALWIGNESWARAN, J.
C. HOMAGAMA 1841/REJUNE 9, 1999SEPTEMBER 3, 1999
Minor – Lease of bare land by Parents – Ground Rent payable to theCredit of the Minor – Increase of rent from time to time – Is there a newagreement – Applicability S. 150 Civil Procedure Code.
The Parents of the Plaintiff – Appellant (Minor) entered Into an agreementwith the Defendant – Respondent in respect of a bare land for 15 years.The Defendant Respondent – was permitted to erect buildings. Upon attainingmajority the Plaintiff – Appellant ratified the Lease, however upon the endof the period of 15 years the Defendant Respondent did not handover theland to the Plaintiff Appellant. Thereafter the Plaintiff-Appellant institutedthe present action.
The District Court dismissed the Plaintiff – Appellant's action holding thatby reason of increases from time to time in the monthly rentals there werefresh agreements and the Plaintiff Appellant was precluded from maintainingthe action on the basis of the original agreement.
(i) Increase of rentals did not result in a new contract. A mere deviationwith regard to a term in the original contractual document need notnegate the whole document unless parties intended to terminate thecontract set out therein –
Negotiating an increased rent does not give rise to a new contract butmerely result in the variation of one term of the contract.
Per Wigneswaran J.,
"Courts are fast making use of technical grounds and traversing ofprocedural guidelines to dispose of cases without reaching out to
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the core of the matters in issue and ascertain the truth to bringjustice to the litigants. This tendency is most unfortunate. It couldboomerang on the judiciary as well as the existing judicial system."
Appeal from the Judgment of the District Court of Homagama.
Case referred to :
1. Azeez Nee Husanlya Uvais vs. Mrs. El. Puniyawathie – 1991 Vol. IVPart I BASL Journal II.
RA.D. Samarasekera PC., with Harsha Soza for Plaintiff Appellant.
D. Wickramanayaka with Ajantha Cooray for Defendant Respondent.
Cur. adv. vult.
January 19, 2000WIGNESWARAN, J.
Byadeed of Indenture No. 2210dated 19.01.1967 attestedby D. J.B. Tantrimudaly, Notary Public of Gampaha, the parentsof the Plaintiff-Appellant entered into an agreement with theDefendant – Respondent in respect of a land calledKeenagahaUmda situated in Homagama in extent 43 percheswhich land belonged to the Plaintiff-Appellant. At the time ofthe agreement she was a minor aged 17 years. The Defendant-Respondent was to pay Rs. 100/- per month as ground rent tothe credit of the said minor Plaintiff-Appellant in respect of thebare land leased out for 15 years from 01.01.1967. TheDefendant-Respondent was allowed to erect buildings on theland and use it to exhibit films. When the minor Plaintiff-Appellant attained majority she was to be persuaded to confirmor ratify the said agreement or enter into a fresh agreement withthe Defendant-Respondent. If she refused to ratify or confirmor enter into a fresh agreement, then the Defendant-Respondentwas to leave the premises within 6 months of such refusal. Insuch an event even the amount of compensation payable to theDefendant-Respondent was stipulated (i.e. Rs. 30000/-). TheDefendant-Respondent was expected immediately after theexpiry of the 15 years to remove the buildings erected by himand hand over vacant possession of the land leased out to him.
Senanayake u. Siriwardene
The Defendant-Respondent entered the land on the strengthof the abovesaid agreement and put up a cinema hall on theland in suit called "Apsara". Upon attaining majority thePlaintiff-Appellant ratified the lease and had direct transactionswith the Defendant-Respondent. (Vide page 166 of the Brief).Upon the end of the 15years(i.e. on 31.12.1981) the Defendant-Respondent did not hand over the land in suit to the Plaintiff-Appellant. On 26.01.1982 (P2) a notice to quit was sent, thoughsuch notice was not necessaiy.
Then this case was filed on 19.07.1982. After trial theAdditional District Judge, Homagama dismissed the Plaintiffsaction by judgment dated 08.06.1994. This appeal relates tothe said judgment.
The only question that has arisen for determination in thisappeal is whether the learned Additional District Judge wascorrect in holding that by reason of increases time to time in themonthly rentals payable, there were fresh agreements betweenthe parties and thereby whether the Plaintiff-Appellant wasprecluded from maintaining this action on the basis of theoriginal agreement.
Learned President's Counsel appearing for the Plaintiff-Appellant submitted;
that there was no issue before Court with regard to a freshagreement and that it was a new position set up by theDefendant-Respondent contrary to the pleadings; and
that increase of rentals did not result in a new contract onthe basis of the decision of the Supreme Court in Azeeznee Husniya Uvais Vs. Mrs. PL. Punlyawathle111.
Learned Senior Counsel for the Defendant-Respondent hascountered;
(i) that the admission of the Plaintiff that there was a freshagreement was in response to a clear and unambiguousquestion; and
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(ii) that there was no provision In the lease agreement No. 2210for a variation of the payment of rent and the premises insuit were not rent controlled premises only a bare land havingbeen leased out. Thus the case referred to was materiallydifferent from the instant case.
Mr. Wickramanayake went on to argue that since the leaseagreement had been superseded, the Plaintiff was not entitledto sue upon the basis of the lease.
These submissions would presently be examined.
When trial started on 23.07.1992 in this case, the followingadmissions and issues were accepted as per page 163 of theBrief.
AdmissionsExecution of Lease Bond No. 2210 admitted.
At the time of execution that the Plaintiff was a minor,admitted.
Receipt of notice to quit dated 26.01.1982 admitted.Issues
Did the lease terminate on 31.12.1981?
If so, is the Plaintiff entitled to ejectment as prayed for inthe plaint.
How much is due to the Plaintiff as damages?
8. In any event since there is no issue raised by the Plaintiffwith regard to the confirmation/ratification of the LeaseBond can the Plaintiff continue with this action?
10. If so, can the Plaintif have and maintain this action?
Senanayake v. Sirlwardene
11. (a) Were the lessors on Deed No. 2210 M.K.D.W.S.
Senanayake and Yasawathie Senanayake?
(b) If so, can the Plaintiff have and maintain this action?
None of the abovesaid issues referred to a fresh agreementbetween the Plaintiff and the Defendant. If there was a freshagreement between the parties the Defendant would have beenaware of it and would have raised an issue that the earlier LeaseBond does not bind the parties since a fresh agreement hascome into being. He did not do so. All that his pleadingsquestioned was the right of the Plaintiff to file this action whenthe parties to Deed No. 2210 were her parents and that theratification by the Plaintiff was not notarially attested. In otherwords the legal right of the Plaintiff to have and maintain thisaction was the crux of the defence set up by the Defendant. Henever averred that the Plaintiff had entered into a fresh leaseagreement wiht him. The answer filed by the Defendant neverreferred to such an agreement. (Vide answer at pages 122 to126 of the Brief). If there was a fresh agreement the Defendantshould have known about it. He then would have referred to itin his answer.
The relevant proceedings which gave rise to the submissionby Counsel for the Defendant-Respondent that there was a freshagreement between the parties is as follows:-
Cross examination of Plaintiff at pages 208, 209 and 210of the Brief.
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At this stage the Counsel for the Defendant moved to raiseissue No. 12 as follows:-
12.(a) Was a fresh agreement reached between parties afterthe Plaintiff attained majority?
Has such agreement been admitted by the Plaintiff inher evidence?
If above issues (a) and (b) are answered in the affirmativecan the Plaintiff proceed with this action?
Quite rightly this issue was refused by the learned DistrictJudge. Homagama on 04.05.1993. (Vide page 228 of the Brief)
Senanayake v. Siriwardene
It is relevant to remember in this regard the following
The Plaintiff in her examination in chief never mentionedabout a fresh agreement.
Even during cross examination it was not the position ofthe Plaintiff that she asked for more rent and therefore theDefendant paid such amount.
All questions posed initially at pages 208 and 209 of theBrief in cross examination, related to the acceptance ofenhanced rent. This acceptance was explained by thePlaintiff at page 222 of the Brief as follows:-
209 of the Brief was in respect of the quantum of rent only.It did not relate to an entirely new agreement as such. Atmost it was only a variation of the terms of an existingcontract. If in fact it was a fresh agreement the questionarises – what were the other conditions of this freshagreement; was it in writing or was it oral; did it terminateand germinate every time the Defendant-Respondent sentan enhanced rent etc.
The forwarding by a party to an existing contract of anenhanced rent and the acceptance by the other of such rentneed not necessarily be viewed as a fresh agreement. In thiscase neither was a fresh agreement talked about by theDefendant in his answer nor did the answer given by the Plaintiffin respect of one aspect of an existing contract amount in fact toa fresh agreement.
referred to in the question at page
(iv) The "agreement
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The learned Additional District Judge, Homagama after theDistrict Judge, Homagama on 04.05.1993 had refused toentertain issue No. 12, had come to her conclusions entirely ona matter based on issue No. 12 which was irrelevant to the caseand rejected by Court earlier as irrelevant. The learnedAdditional District Judge had failed to consider the fact in herjudgment dated 08.06.1994 that there was not a wordmentioned with regard to a fresh agreement in the Defendant'sanswer, that the Defendant while giving evidence had changedhis defence set out in the answer and in the issues and hadreferred to a non existing fresh agreement, that the Defendanthad made a mountain out of the mole hill of an answer given bythe Plaintiff in her cross examination and that the Defendantwas not allowed to be cross examined which made the task ofthe Court even more vulnerable since questions should havebeen posed by Court itself to find out the truth. Courts are fastmaking use of technical grounds and traversing of proceduralguidelines to dispose of cases without reaching out to the coreof the matters in issue and ascertain the truth to bring justiceto the litigants. This tendency is most unfortunate. It couldboomerang on the judiciary as well as the existing judicialsystem. Mr. Batty Weerakoon Senior Counsel for the Plaintiff-Appellant seems to have come a little late to Court on 09.12.1993after the conclusion of the Defendant-Appellant's evidence inchief. Meanwhile since the instructing Attorney-at-Law wasunable to cross examine the Defendant-Respondent, anapplication for postponement was made by him but was refused.Court had then directed written submissions to be tendered on11.01.1994 without allowing cross examination, according tothe petition of appeal filed in this case (Vide page 35 of the Brief).There appears to have been no objections on the part of theCounsel for the Defendant-Respondent to the Plaintiff-Appellant's application for a date to cross examine theDefendant-Respondent. If need be, costs could have beenordered against the Plaintiff-Appellant rather than allow theDefendant-Respondent's patently questionable evidence tostand uncontradicted in the record. When Courts resort to suchtough measures with regard to procedure they must remember
Senanayake v. Sirtwardene
that their duties in those circumstances are far greater. TheCourt should then have itself questioned the Defendant-Respondent to get clarifications as to why his Answer did notrefer to a fresh agreement between parties and so on. To smotherthe Plaintiff-Appellant with the authority of the power of Courtand then grant a judgment on grounds not put forward in theissues, savours of arrogance if not partiality. The Court was dutybound to consider the question as to whether the Defendant-Respondent purposely abandoned his defenses as per hisanswer and put forward a different case merely on an innocentanswer given by the Plaintiff-Appellant in her cross examination,since the Defendant-Respondent considered his original defenceuntenable. The Court was duty bound to consider whether theDefendant-Respondent could in the middle of the trial haveenunciated a case materially different to that pleaded by himthus contravening the provisions of section 150 Explanation 2,Civil Procedure Code. The Court was duty bound to haveexamined the proceedings in this case in its totality to perceivethe devious means adopted by the Defendant-Respondent whowas expected to hand over the premises in suit by 01.01.1982,to protract and delay this case. Due to the length of time a casetakes to conclude, Judges often lose sight of the variousvicissitudes the case had gone through. The learned AdditionalDistrict Judge in this case had failed to consider the fact thatthe Plaintiff-Appellant was the undisputed owner of the premisesin suit and that she was entitled to recover possession of thepremises in suit. The learned Judge should have realised thefact that issue No. 12 had earlier been disallowed and that thatissue related to the same matter on the basis of which shedismissed the Plaintiff-Appellanfs case. She had dismissed thecase on the basis of a new position set up by the Defendant-Respondent which position as an issue had been disallowedearlier. The learned Additional District Judge had therefore erredin her findings. The answer given by the Plaintiff-Appellantduring her cross examination was certainly not clear andunambiguous that there was in fact a fresh agreement as madeout by Mr. Wickramanayake. It only referred to the acceptanceof an enhanced rent which at most was a variation of the terms
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of the earlier contract which was still in force. This matter willbe dealt with under the next submission which deals with thedecision in Azeez nee Husniya Uvais Vs. Mrs. P.L.Puniyawathie (supra).
It was the contention of Mr. Wickramanayake that therewas no provision in the lease agreement No. 2210 for a variationof the payment of rent. If that argument is to be taken to itslogical conclusion then the moment an unsolicited additionalsum of rent was sent to the Plaintiff-Appellant and she acceptedsame, ipso facto the written deed of lease would have come toan end. If this was so the Answer of the Defendant-Respondentshould have reflected this fact. It did not. A mere deviation withregard to a term in the original contractual document need notnegate the whole document unless parties intended to terminatethe contract set out therein. The Defendant-Respondent neverspoke of such intention on the part of either parties at the timeof such deviation or variation.
Whether a premises are rent controlled or not has nothingto do with a simple matter such as this. As stated by JusticeMark Fernando in Azeez nee Husniya Uvais Vs. Mrs. EL.Puniyawathie (supra) 'Where there is a subsisting contract oftenancy the variation of one term of that contract does notusually result in a new contract; negotiating an increased rentdoes not give rise to a new contract but merely result in thevariation of one term of the contract."
Negotiation of an increased rent is not possible with regardto rent controlled premises.
The abovesaid observation of Justice Fernando must bedeemed to have been made in respect of all premises rentcontrolled or not. The mere fact that an enhanced rent was sentby the Defendant-Respondent and it was accepted by thePlaintiff-Appellant could not have been considered as thetermination of the earlier written contract of lease and the genesisof a fresh oral agreement. At most it was only a variation of oneterm of the contract still subsisting.
Senanayake v. Siriwardene
We have no difficulty in coming to the conclusion that thelearned Additional District Judge, Homagama erred in herdecision and therefore we set aside her judgment dated08.06.1994. Even though the Defendant-Respondent'sevidence-in-chief was not contradicted by cross examination,yet taking into consideration the fact that he came out withevidence unconnected to the defence put forward by him andmaterially different to the defence put forward by him we deemit necessary to ignore that evidence at least with regard to hisinconsistent and opportunistic statements. We are satisfied thatthe totality of the evidence led was sufficient to grant the prayersprayed for in the amended plaint dated 14.07.1983 andaccordingly enter judgment for the Plaintiff-Appellant as prayedfor in the abovesaid amended plaint with incurred costs payablein both Courts by the Defendant-Respondent to the Plaintiff-Appellant. Enter decree accordingly.
Registrar of this Court is directed to forward the recordwithout delay to the District Court of Homagama.
TELAKAWARDANE, J. – I agree.