SINGHAM V. WIGNESWARAMOORTHY

045-SLLR-SLLR-1995-2-SINGHAM-V.-WIGNESWARAMOORTHY.pdf


CA
Singham v. Wigneswaramoorthy
245
SINGHAM
V.
WIGNESWARAMOORTHY
COURT OF APPEAL.
GUNASEKERA, J.
GRERO, J.
A. 54/86 (F)
C. COLOMBO 5931/REJULY 26, 1994.
Land Lord and Tenant – Rent Act – S. 22(2) (bb) (ii) – 5 years Rent and 6 monthsnotice in writing of Termination of Tenancy 1984 a leap year – Tenant called uponto vacate on 28th February – Validity of notice to quit – Proviso to S. 22(6).
The Plaintiff-Respondent instituted action to eject the Defendant-Appellant interms of S. 22(2) (bb) (ii) of the Rent Act 7 of 1972 as amended by Act No. 55 of1980. The Plaintiff deposited prior to the filing of the action, a sum equivalent to 5years rent with the Commissioner of National Housing, and also gave 6 monthsnotice in writing of the termination by letter dated 27.8.83, to quit on or before28.2.1984. The year 1984 was a leap year.
Held:
It appears that instead of 29th February 1984, the notice states that theTenant should vacate on or before 28th February 1984. The Notice falls short by aday of the required time under provision to S. 22(6) of the Rent Act and therequirement under the common law. The Notice to quit is bad in law and it has noforce or effect and validity.
Per Dr. Grero, J.
“The scheme of the Rent Act is to protect the Tenant in occupation of premises,which fall within the ambit of the Act and any defect, omission, or shortcoming onthe part of the landlord in taking steps to eject, the Tenant should not be in favourof the former, but such defect, omission etc., should be decided in favour of thelatter.”
Article 138 of the Constitution does not help the Plaintiffs-Respondents, aswhen the statute requires that the Tenant should be given 6 months notice inwriting, and it is not followed or complied with it is the Tenant who is prejudiced,because, he is deprived of a Right granted to him by the statute.
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AN APPEAL from the Judgment of the District Court of Colombo.
Cases referred to:
Ismail v. Sheriff-68 NLR 19.
Zahira v. Ismail -61 NLR 357 at 359.
Hankey v. Clavering – 1942 2 All ER, 314.
S.C. 44/86 CA 479/79(F) D.C. Colombo 2796/RE. – SC Minutes 13.3.89.
Haniffa v. Sellamuttu, 70 NLR 200-201.
Sidebotham v. Holland 1895 – 1QBD 378.
P. A. D. Samarasekera P.C., with Keerthi Sri Gunawardena for Defendant-Appellant.
S. Mahenthiran for the Plaintiff-Respondent.
Cur. adv. vult.
October 03,1994.
DR. ANANDA GRERO, J.
This is an appeal preferred to this Court by the defendant-appellant against the judgment of the Learned Additional DistrictJudge of Colombo, dated 10.01.86, whereby he gave judgment infavour of the plaintiff-respondent.
The plaintiff-respondent instituted this action to eject thedefendant-appellant from the premises more fully described in theschedule to the plaint on the basis of section 22(2) (bb) (ii) of theRent Act No. 7 of 1972 as amended by Act No. 55 of 1980.
The plaintiff-respondents in their plaint averred, that the premisesare residential premises and the standard rent exceeds Rs. 100/- permonth. As required under section (22) (2) (bb) (ii), it is also stated inthe plaint that the plaintiff-respondents have deposited prior to thefiling of the action a sum of Rs. 16,800/-, being a sum equivalent tofive years rent with the Commissioner of National Housing forpayment to the tenant defendant-appellant. It is also stated in theplaint that the plaintiff-respondents have given six months' notice inwriting of the termination of tenancy to the tenant defendant-appellant.
The aforesaid notice to quit which is marked and produced as P1is dated 27.08.93. According to this notice, the tenant has beenrequested to quit and deliver vacant possession of the premises inquestion on or before the 28th day of February, 1984.
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Singham v. Wigneswaramoorthy (Dr. Ananda Grero, J.)
247
When this case was argued before us, it was contended by theLearned President’s Counsel for the defendant-appellant that 1984was a leap year and in the month of February of that year there were29 days. The tenant was not called upon to vacate on or at theexpiration of the 29th day of February 1984. He further contendedthat the witness Mr. A. C. Strong an Attorney-at-Law who had thepower of attorney on behalf of the plaintiffs while giving evidenceadmitted that the tenant was not given six month’s notice by P1. (videproceedings at page 89)
The Learned President’s Counsel for the defendant-appellantstrongly contended that the plaintiff-respondents have failed tocomply with proviso to section 22(6) of the Rent Act and as such theiraction should fail. He also contended that issue No. 1 which dealswith the notice to quit as contemplated in the said section has beenanswered by the Learned Additional District Judge wrongly andcannot be justified.
The Learned Counsel for the plaintiff-respondents while concedingthat this particular year 1984 was a leap year, and the month ofFebruary ended on the 29th day, was of the view that the notice toquit which requested the tenant to quit the premises on or before28.02.84 was not a notice bad in law as no prejudice was causedto the tenant; in that he very well knew that he was given sixmonths notice and at the end of that period he should vacate thepremises.
Proviso to section 22(6) of the Rent Act states as follows: Thatthe landlord of any premises referred to in paragraph (bb) ofsubsection (1) or paragraph (bb) of subsection (2) may institutean action or proceedings for the ejectment of the tenant of suchpremises, if such landlord has given to such tenant six months’notice in writing of the termination of the tenancy.
The aforementioned proviso to section 22(6) of the Rent Act clearlyreveals that six (6) months’ notice in writing should be giventerminating the tenancy.
The Rent Act does not give the form of a notice to quit; nor does itshow how a monthly tenancy should be terminated. For various
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grounds of ejectment of a tenant the Rent Act has prescribed thenumber of months that a notice should be given terminating thetenancy between the landlord and tenant. For example three month’snotice of termination of tenancy should be given on the first occasionwhen the tenant falls into arrears for the first time. (Section 22(3) (a))One has to fall back on the law to find out the manner with which amonthly tenancy is terminated.
A number of decisions of our Superior Court have considered thequestion of terminating a monthly tenancy based on our common law.Suffice to mention the case of Ismail v. Sheriffm. which was cited bythe Learned President’s Counsel for the defendant-appellant whenthis matter was argued before us. In this case after a full discussionof the question of termination of a monthly tenancy, the Courtaccepted and followed the dicta of Basnayaka, C.J. in the case ofZahira v, Ismail™:
“It is settled law that in the absence of an agreement to thecontrary the notice of termination of a tenancy must runconcurrently with a term of the letting and hiring and mustexpire at the end of that term”.
Thus it, manifests that in the case of a monthly tenancy whichcommences on the first day of a month, the notice to quit to be validshould call upon the tenant to vacate the premises on the last day ofa month.
The Learned President's Counsel for the defendant-appellant drewthe attention of this Court to the evidence given by Mr. Strong (thewitness on behalf of the plaintiffs) where he in answer to Court (thetrial Court) said that the notice to quit (P1) was to operate with effectfrom 1st day of September 1983. Therefore he contended that thenotice to quit which called upon the tenant to vacate the premises onany day other than the last day of the calender month would be aninvalid notice. The tenant should have been asked to vacate on orbefore the 29th February 1984. But according to P1, he was asked tovacate on or before 28th February 1984; which according to thecontention of the Learned Persident’s Counsel for the defendent-appellant is contrary to the accepted principles of our common law,and therefore this notice is bad in law.
CA
Singham v. Wigneswaramoorthy (Dr. Ananda Grero, J.)
249
Considering the fact that the year 1984 was a leap year in whichthe month of February had 29 days, and the tenant was called uponto vacate on the 28th of February, which was not the last date of thatmonth, it cannot be stated that six months’ notice has been given asrequired under the proviso of section 22(6) of the Rent Act. Thecompletion of 6 months falls on the 29th day of February 1984.
It appears that instead of 29th February 1984, the notice says thetenant should vacate the premises on or before 28th February 1984.It is only by a day that this notice falls short of the required time underthe aforesaid proviso to section 22(6) of the Rent Act and therequirement under the common law. Although it is by one day thenotice is bad in law, yet the Court cannot ignore the consequence ofsuch a single day and decide in favour of the plaintiff-respondentsthat in fact they have properly (i.e. statutorily) terminated the tenancy.
The Learned President’s Counsel for the defendant-appellant citedHankey v. Clavering(3) to substantiate his contention, that a wrongdate given on the notice does not terminate the tenancy or the leaseof the premises.
In the aforementioned case, Lord Greene M. R. in the appeal heldas follows:-
“I dissent entirely from the proposition that, where a document isclear and specific on a particular matter, such as that of date, it ispossible to ignore the inaccurate reference to a date andsubstitute a different date because it appears that the date wasput in by a slip. In the present case what the respondent purportedto do by the notice on its face was to bring the lease to an end onDecember 21, and if he had said “I hereby, by this notice give you,6 months’ notice to determine your lease on December 21, 1941,he would have been attempting to do something which he had nopower to do; and however much the recipient might guess, orhowever certain he might be; that this was a mere slip, itwould not cure the defect because the document immediatelyit is dispatched is a document which is incapable on its face ofproducing the necessary legal consequence.” (Vide at page314).
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Applying the dictum stated in the said decision to the facts of thepresent case it could be said that even a day short of the requisite 6months’ period is an error which cannot be rectified and the notice toquit is one which is incapable of producing the necessary legalconsequence, namely the termination of tenancy.
The argument of the Learned Counsel for the plaintiff-respondentsthat P1, (notice to quit) does not prejudice the defendant-appellant inour view cannot be sustained as notice has not been given to complywith the proviso to section 22(6) of the Rent Act, which requires that aperiod of six months' (not even less by a day) notice should be givenin writing of the termination of tenancy.
The scheme of the Rent Act is to protect the tenant in occupationof premises which fall within the ambit of the Act and any defect,omission, or shortcoming on the part of the landlord in taking steps toeject the tenant should not be in favour of the former, but suchdefect, omission etc. should be decided in favour of the latter.
It is proved at the trial, that P1 (notice to quit) has been deliveredto the tenant on the 30th August 1983. Even going on the basis that ittakes effect from that day, yet from 30.8.83 to 28.2.84 it is not sixmonths as required in the aforesaid section of the Rent Act.
The Learned President’s Counsel for the defendant-appellantfurther contended that both in Sri Lanka and in England Courts haveaccepted the principle that “Notice to Quit” are documents of atechnical nature and must be in proper form to become effective. Hecited Megarry on “The Rent Acts" and an unreported decision of ourSupreme Court(4) in order to substantiate his contention.
Megarry on “The Rent Acts” 7th Edition at page 181 states thus:“Notices to determine a tenancy are documents of a technicalnature, technical because they are not consensual documents.But, if they are in proper form they have of their own force withoutany assent from the recipient the effect of bringing the demise toan end”.
This principle has been followed by the Supreme Court in the casestated earlier and Bandaranayake, J. with Ranasinghe C.J. andDr. Amarasinghe, J. agreeing held that “a contractual tenancy mustbe terminated, and a notice to quit unlike an agreement represents
CA
Singham v. Wigneswaramoorthy (Dr. Ananda Grero, J.)
251
an unilateral act done by the landlord which does not involve theconsent of the tenant. Therefore such a notice must be technicallyperfect as one man’s act terminates another man’s right”
The Learned Counsel for the plaintiff-respondents heavily reliedupon the decision reported in Haniffa v. Sellamuttu<5) and moreparticularly what is stated at page 201. Justice T. S. Fernandoquoting Lindley LJ in Sidebotham v. Holland™ stated as follows:
“The validity of a notice to quit ought not to turn on the splitting of a
straw”.
In the light of what has been so far mentioned in this judgmentregarding the exact legal position pertaining to Notices to Quit, it isabundantly clear that the line of thinking in the majority of theauthorities (stated above) appear to be contrary to Lindley L. J.’sthinking as quoted by T. S. Fernando, J. We prefer to follow themajority views and decisions in regard to notices to quit asmentioned earlier.
In the aforesaid circumstances we are unable to agree withcontention of the Learned Counsel for the plaintiff-respondents that ashort fall of one day, because of an intervening leap year, cannot beconstrued to invalidate the notice calling upon the tenant to quit on28.2.84. On the contrary we are of the view that the notice to quit isbad in law, and it has no force or effect and validity. Thus we agreewith the contention of the Learned President’s Counsel for thedefendant appellant that the Learned Additional District Judge hasanswered the issue, namely whether the plaintiffs have given sixmonths’ notice to the defendant by notice dated 27.8.83 wrongly, andit cannot be tenable in law.
The Learned President’s Counsel further urged before us that thatthis Court has to consider whether the plaintiffs have established thatthe standard rent of the premises in question exceeds Rs. 100/- permonth. His contention is, that the issue that the standard rentexceeds Rs. 100/- per month has not been satisfactorily established.It is the contention of the Learned Counsel for the plaintiff-respondents, that the plaintiff's evidence (i.e. Mr. Strong’s evidence)regarding the standard rent exceeds Rs. 100/- per month has notbeen challenged in the cross examination and therefore, such
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evidence stands as unchallenged and uncontroverted evidence in sofar as the standard rent is concerned.
As we are of the view that tenency has not been properlyterminated as required under the proviso to section 22(6) of the RentAct, the action of the plaintiff-respondents should fail and on thatground alone this appeal should be allowed, we do not think that thenecessity does arise for this Court to consider the issue whether theplaintiff-respondents have established that the standard rent exceedsRs. 100/- per month.
The termination of tenancy which goes to the root of an action ofthis nature, is not done as required under the provisions of the Actand the common law, then the consideration of other issues relatingto the action is rather unnecessary and therefore we make no orderregarding the second submission made by the Learned President’sCounsel for the defendant-appellant.
The Learned Counsel for the plaintiff-respondents in his writtensubmission had drawn the attention of this Court to the proviso toArticle 138 of the Constitution of Sri Lanka. It states that no judgment,decree or order of any court shall be reversed or varied on accountof any error, defect or irregularity which has not prejudiced thesubstantial rights of the parties.
When the statute requires that the tenant should be given sixmonths’ notice in writing, and it is not followed or complied with, thenit is the tenant who is prejudiced, because he is deprived of a rightwhich is granted to him by the Statute itself. In such circumstances,proviso to Article 138 of the Constitution does not help the plaintiff-respondents in this case.
For the reasons stated above we are of the view that the LearnedAdditional District Judge’s judgment should not be allowed to standand the appeal of the defendant-appellant is allowed and thejudgment dated 10.01.86 hereby set aside. We order that the plaintiff-respondents do pay to the defendant-appellant a sum of Rs. 850/- ascosts of the appeal.
D. P. S. GUNASEKERA, J. – I agree.
Appeal allowed.