Sri Lanka Law Reports
[2001 j 2 Sri L.R.

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
fWlgneswaran, J.)
It is relevant to remember in this regard the following
matters: –
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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[20011 2 Sri L.R.
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
(Wlgneswaran, J.]
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
Sri Lanka Law Reports
[2001] 2 Sri L.R.
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
(Wlgneswaran, J.)
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.
Appeal allowed.