013-SLLR-SLLR-1990-2-SITHTHI-FAUSIYA-v.-HARUN-KAREEM.pdf
SITHTHI FAUSIYAv.
HARUN KAREEM
SUPREME COURT
H. A. G. DE SILVA. J.. AMERASINGHE, J. AND DHEERARATNE, J.
S.C. 41/87 – C.A. No. 546/82AUGUST 27. 1990.
Landlord and tenant-Rent Act. No. 7 of 1972 as amended by Law No. 10 of 1977Sections 22(1 )(a), 22(1 )(bb). 22(3). 22(6)-Rent Restriction Act. No. 29 of 1948- RentRestriction (Amendment) Act. No. 10 of 1961 Section 13 (la). 13(1a)(b) – RentRestriction (Amendment) Act, 'No. 12 of 1966 – Interpretation of Statutes – Notice.
A Landlord of rent controlled premises gave notice of termination of tenancy on theground of reasonable requirement, purporting to be in terms of Section 22(1) (bb) of theRent Act No. 7 of 1972 as amended by Law No. 10 of 1977. The tenant was in arrears ofrent at the time notice was given. The plaint was filed on the grounds both of reasonablerequirement and arrears of rent but at the trial the case was restricted to the latter groundonly. The Court of Appeal held that the notice is bad in law as it failed to specify that thetermination of tenancy is made on the ground of arrears of rent.
Held :
In the unambiguous words of Section 22(3)(a) a prerequisite of filing action on thegrounds of arrears of rent is a notice of termination of tenancy. The requirement of words'intimating to the tenant that the tenancy is terminated on the ground of arrears of rent" orwords to similar effect cannot be imported to that section.
Interpolation of words to a statute is improper since the primary source of legislativeintent is in the language of the statute.
There are no formal requisites for a notice of termination except where the statutespecifies a period of duration. The test to be adopted is whether the notice has been givenby the landlord with the intention of terminating the tenancy and the tenant would havereasonably understood it as serving that purpose. This cannot be negatived by theOminibus averment in every answer of a tenant that the notice 'is not valid in Law'.
Per Dheeraratne. J.
'No tenant need be reminded of his obligation to pay rent and besides it would beunfair to impose on a landlord such an additional burden not provided for by theCommon Law and not expressly required by the statute which seeks to alter theCommon Law. The Common Law relating to Landlord and tenant not having beenabrogated by the legislature, the statutory inroads made into it may be aptly described
as a process of etching on the surface of the common Law – the Common Law standingout where no statutory etching is done. This appears to be the consistent judicialapproach to the statutory modifications'.
Cases referred to:
Fernando v. Samaraweera 52 NLR 278 at 283
George v. Richard 50 NLR 128
Dias v. Gomes 55 NLR 337
Ratnam v. Deen 70 NLR 21 at 22
A.R.M.C. Thambi Lebbe v. P. Ramasamy 68 NLR 356
Abdul Hasan v. Calideen 74 NLR 22 at 23
Appuhamy v. Seneviratne [1981] 2 Sri LR 45 at 50 '
Wellington v. Amerasinghe [1987] 1 Sri LR 41
Western Bank Ltd. v. Schindler [1976] (3) WLR 355. 356
Magor & St. Mellons Rural District Council v. Newport Corporation [1955] AC 189at 191
APPEAL from judgment of the Court of Appeal.
H. L. de Silva P.C. with G. L. Geethananda. Janaka de Silva andP. M. Ratnawardena for plaintiff-appellant.
D. R. P. Goonetilleke for defendant-respondent.
Cur. adv. vult.
October 05, 1990DHEERARATNE, J.
The landlord of the premises which is the subject matter of this action,sued his tenant on 9.6.81 in the District Court, to have him ejected fromthe premises on two grounds vtz., that the tenant was in arrears of rentfrom June to December, 1980 and that the premises were reasonablyrequired for the landlord's occupation-. In the plaint the landlord averredthat by letter dated 21.1.1981 notice of termination of the tenancy wasgiven to the tenant to quit and deliver possession of the premises on orbefore 30.4.1981. The tenant in his answer took up the position that onan agreement between him and the landlord, the arrears of rent were setoff against a sum of money he expended on account of repairs to thepremises and a further sum due to him from the landlord as costs inanother case, leaving a balance, which he stated was already paid to thelandlord.
At the trial, the landlord confined his case to the cause of actionbased on arrears of rent only. The learned trial judge gave judgment forthe landlord, having held that there is no evidence of an agreement to setoff the arrears, as alleged by the tenant. On an appeal by the tenant, theCourt of Appeal reversed the finding of the original court and dismissedthe landlord's action, on the basis that in its opinion "implicit in thescheme of the (Rent) Act and the statutory context, that it is animperative requirement to set out in the notice the ground of terminationof the tenancy." The present appeal is the sequel. The Court of Appeal,however found no reason to disturb the finding of the trial judge thatthere was no evidence of an agreement to set off the arrears and noarguments were addressed to us canvassing that finding of fact.
Before considering the statutory provisions applicable to the action, itwould be convenient to set out the relevant parts of the letter dated
(P. 1) relied upon by the landlord as the notice of terminationof the tenancy, which the Court of Appeal held to be invalid in law.
"I am instructed by my client Mrs. Siththi Fausia of No. 9,Kumarimulla, Pugoda, your landlord of the above premises, to giveyou notice to quit and hereby give you notice that you should quit,vacate and deliver vacant possession of the above premises to myclient on or before the expiration of 30th day of April, 1981. My clientis not the owner of any other residential premises and the abovepremises are reasonably required by her for her own residence.
;
This notice is been given to you in terms of Section 22{1)(bb)ofthe Rent Act, No.<7 of 1972 as amended by Rent, (Amendment)Law, No. 10 of 1977 and in the event of your failure to comply withthis notice action will be filed against you to have you and all personsholding under you ejected from the said premises."
A copy of this letter had been sent to the Commissioner of NationalHousing.
The premises in dispute, being premises of which the standard rentper month does not exceed Rs. 100, the landlord relied on Section22(1 )(a) of the Rent Act, No. 7 of 1972, to ground his action and suchan action for ejectment could be instituted in terms of that sub-section,only if the rent of the premises has been in arrear for 3 months or moreafter it has become due ; but such an action cannot be instituted unlessthe landlord has complied with the provisions of Section22(3) relating to
the notice of termination of the tenancy. The relevant portions of thatSection which now calls for our interpretation read as follows : –
22(3) 'The landlord of any premises referred to in sub-section
shall not be entitled to institute, or as the case may be, to
proceed with any action or proceeding for the ejectment of the tenantof such premises on the ground that the rent of the such premises
has been in arrear for 3 months or moreafter it has
become due,-
if the landlord has not given 3 months' notice of termination of
the tenancy if it is on the first occasion of which the rent has. been in arrear;or
if the tenant has prior to the institution of such act orproceedings tendered to the landlord all arrears of rent ; or
if the tenant has on or before the date fixed, in such summonsas is served on him, as the date on which he shall appear in .
' court in respect of such action or proceeding, tendered to thelandlord all arrears of rent.”
Since the Court of Appeal considered "the scheme of the Act and thestatutory context” in coming to the finding it did, it would be necessary to •look back at the legislative predecessor of the Rent Act, No. 7 of 1972and some of the decided cases on those and similar statutoryprovisions. The original Rent Restriction Act, No. 29 of.1948, had noprovision similar to present Section 22(3) affording a defaulting tenantan opportunity to pay his arrears before or after the institution of anaction of ejectment and the failure on his part to perform his statutoryobligations exposed him to the peril of being ejected. In Fernando- v.Samaraweera (1) Basnayake, J. (as he then was) remarked –
"Once the tenant commits a breach of any one of his statutoryobligations the b’ar against the institution of proceedings in ejectmentimposed by Section 13 of the Act, is removed and there is nothing the“statutory tenant” can do to regain his immunity from eviction. Hisrights and obligations are governed by the statute and immediatelyhe violates its provisions the consequences of such violation begin toflow. For instance if he is in arrears of rent for one month after it hasbecome due the landlord becomes free to institute proceedings in 'ejectment. He cannot prevent his eviction by process of law bytendering the rent out of time either before or after the institution oflegal proceedings. The consequences of the failure to observe the
obligations imposed by the statute cannot be avoided by doing latewhat should have been done in time."
The contrary view expresed by Nagalingam, J. earlier, in George v.Richard (2) necessitated the reference of the case of Dias v. Gomes
to a bench consisting of 3 judges. Pulle, J., writing the mainjudgement, 'the reasoning and conclusions set out" of whichNagalingam, J. himself was "prepared to adopt", stated at page 342 asfollows: –
"This brings me to the final question whether the protectionconferred on a tenant by the Act, is taken away, if he allows himself tobe in arrears for over a month; It seems to me that being in arrears is acondition or state in which the tenant finds himself by his own lapseand upon that condition or state supervening the tenant placeshimself outside the limits of the protection and it is for him to showhow thereafter he regained that protection. I fail to see how heragains the protection only by the act of tendering, the arrears beforethe institution of the action. The Rent Restriction Act has made heavyinroads into the common law rights of the landlord and I do not seeanything oppressive in interpreting proviso (a) to mean that, havingregard to the new and extensive rights conferred on a tenant, it is a 1condition precedent to the continued protection of the Act, againstthe eviction that the tenant shall pay the rent not necessarily as it fallsdue but at least within a month thereafter."
In this state of the common law that prevailed causing hardship to thedefaulting tenants, came the Rent Restriction (Amendment) Act, No.10 of 1961 conferring on such tenants in arrears a measure of relief.Section 13 (1 A) brought in by that amendment read as follows
13 (1 A)' The landlord of any premises to which this Act applies shallnot be entitled to institute any action or proceeding for ejectment ofthe tenant of such premises on the ground that the rent of suchpremises has been in arrear for one month after it has become due.
if the landlord has not given the tenant 3 months' notice of thetermination of the tenancy, or
if the tenant has before such a date of termination of thetenancy as is specified in the landlord’s notice of suchtermination tendered to the landlord all arrears of rent."
It could be observed at once that the wording of Section 13( 1 A) (b)only inferential^ suggested that the landlord should specify the arrearsof rent due to him in the notice terminating the tenancy.
The above mentioned provisions regarding the notice of terminationas a prerequisite for instituting action in ejectment on the ground of■ arrears of rent in respect of all premises to which rent restriction lawsapplied, prevailed until the passing of the Rent Restriction (Amendment)Act, No. 12 of 1966, which brought in a division of premises – those thestandard rent per month of which did not exceed hundred rupees(hereinafter called the first category) and those of which exceededhundred rupee (hereinafter called the second category). Thisamendment provided for ejectment of a tenant from the first category ofpremises on the ground of arrears of rent, only if such tenant was inarrears of rent for three months or more. It also produced somewhat astrange result in that the statutory prohibition of filing an action inejectment on the ground of arrears in rent –
without a notice of termination of tenancy being given ; and
unless the tenant had tendered to the landlord arrears of rent priorto filing of such action
was not made applicable to premises of the first category. (See -Ratnam v. Deen (4)). Nevertheless, it is correct to say that the CommonLaw reqirement of the notice of termination of tenancy surfaced in suchan action.
This situation existed till the enactment of Act, No. 7 of 1972, the lawin force at present, which repealed the Rent Restriction Act, (Chapter274) as amended from time to time and the statutory requirement of anotice of termination of tenancy preparatory to filing of action on theground of arrears of rent in respect of both categories of premisesreappeared. However, it is significant to note that in Section 22(3) (b) ofthe present Act, where reference is made to the relief granted to thedefaulting tenant to tender arrears of rent before filing the action, thelegislature had thought it fit to drop the words 'as specified in thelandlord's notice of termination', which words were brought in'by theAmendment of 1961. "
With this historical conspectus of legislation,! will now turn to the few.•reported decisions which may have some bearing on the question ofconstruing Section 22(3)(a). In A.R.M.C. TambiLebbe v. P. Ramasamy
G.P.A. Silva, J. (as he was then) dealing with provisions of therepealed Rent Restriction Act, at page 357 remarked –
. 'Thereafter however, he (Commissioner of Requests) appears to
have been influenced by an irrelevant consideration namely that the
notice to the defendant to vacate the premises did not contain thepurpose for which the premises were required to enable the plaintiffto carry a textile business or trade. It must be stated that there is nolegal requirement to mention such purpose at all in a notice to quit."
We are denied the benefit of knowing the actual wording of the noticeto quit and that action unlike the present, was solely based onreasonable requirement of the landlord. Could it be that the notice wascompletely silent as to the reason it was given ? Or did it merely saythat the premises were reasonably required by the landlord for thepurposes of trade or business, profession or vocation or employment,without specifying which of them? Or if it is for the purposes of trade orbusiness ; did it fail to specify which trade or business? We do not know. ■
In Abdul Hassan v. Calideen (6) Weeramantry, J., observed –
'It is well established that the ground on which the acton is filedneed not necessarily be the ground set out in the notice ofdetermining the tenancy."
This observation was apparently considered by the Court of Appeal tobe too wide a proposition than that was warranted as it was made in thecontext of the submission of counsel that an action for ejectment on theground of arrears of rent could not be maintained upon a basis of aperiod of arrears of rent other than that referred to in the notice to quit. •
The Court of Appeal also gave its consideration to the remark madeby Atukorala, J. in Appuhamy v. Seneviratne (7) that –
"it appears to me that the ground on which an action
is filed need not necessarily be the one set out in the notice oftermination of the tenancy."
I am in agreement with the Court of Appeal that the above observation isclearly obiter and that it was made in respect of notice admitted byparties but not even produced at the trial.
However, in the unambiguous words of Section 22 (3) (a) a pre-requisite of filing action on the grounds of arrears of rent is a notice oftermination of tenancy. The question is whether we are justified on therecognized principles of construction of statutes to import into this
section words" and intimating to the tenant that the tenancy
is terminated on the grounds of arrears of rent' or words to similar effect.
The Court of Appeal found support for the view it did in the judgmentof Sharvananda, C.J. in the case of Wellington v. Amerasinghe (8j inwhich he expresses as follows
‘But Section 22 (3) of the Rent Act, of 1972 has altered the law. Interms of this section notice of termination of tenancy in order to bevalid can be given only after the tenant had been in arrears for therequisite period and not beforehand. Hence under the present lawadvantage cannot be taken of an earlier termination of tenancy bywhich notice to quit at a time when the tenant was not in arrears ofrent for the required period to institute an action under Section 22 (1)of the Rent Act, of 1972 for ejectment on the ground of arrears ofrent.'
It appears by that interpretation Sharvananda, C.J. has ventured toinject to the requirement of a statutory notice a temporal element,apparently having regard to the collocation of words of Section 22‘ (3)
which reads"shall not be entitled to instituteany
actionfor ejectment of the tenanton the ground that
rent of such premises has been in arrears for three months or
moreafter it has become dueif the landlord has
not given the tenant three months' notice of termination of
tenancy" such a construction does not appear to me as one
that was reached in consequence of reading some additional words intothat section, for on a plain reading it could be contended that the noticeof termination should follow the default.
The Court of Appeal was of the opinion that if the notice oftermination of the tenancy makes no reference to the fact that the rent isin arrear, then the first intimation by the landlord to that fact will be afterthe institution of the action, thereby diminishing the time andopportunity available to the tenant to tender arrears of rent. I am of theview that no tenant need be reminded of his obligation to pay rent andbesides it would be unfair to impose on the landlord such an additionalburden not provided for by the Common Law and not expresselyrequired by the statute which seeks to alter the Common Law. TheCommon Law relating to the landlord and tenant having not beenabrogated in toto by the legislature, the statutory inroads made into itmay be aptly described as a process of etching on the surface of theCommon Law ; the Common Law standing out where no statutory,etching is done. This appears to be the consistant judicial approach tothe statutory modifications.
Bindra's Interpretation of Statutes (7th edition) page 536 states –
" Where the meaning is clear and explicit words cannot beinterpolated. They should not be interpolated even though theremedy of the statute would thereby be advanced or a more desirableor just result would occur. Even where the meaning of statute is clearand sensible either with or without the omitted word, interpolation isimproper since the primary source of legislative intent is in thelanguage of the statute."
(Also see Western Bank Ltd. v. Schindler (9) per Scarman L. J.)
I am in agreement with learned President’s Counsel for the appellant,that to say it is an imperative requirement to set out in the notice theground of termination of the tenancy, would be in the words of LordSimon in Magorand St. Mellons Rural District Council v. NewportCorporation (10) "a naked usurpation of legislative function under thethin disguise of interpretation."
The matter does not rest there, for it has to be considered whetherthe letter P1 serves as a valid notice of termination of tenancy. LearnedCounsel for the tenant contends that it is invalid because it specificallystates that it is a notice given in terms of Section 22( 1) (bb) as amendedby Act, No. 10 of 1977, on the ground that the premises are reasonablyrequired for occupation as a residence for the landlord and that in anyevent such a notice in terms of Section 22(6) as amended, should be asix months' and not a three months' notice. If a bare three months'notice of termination as I have already held, without mentioning anyground whatsoever would be suficient compliance with Section22(3)(a), would it matter if some extraneous facts are mentioned in thatnotice of termination ?
There are no formal requisites for a notice of termination under theCommon Law or under the statute, except where the latter specifies aperiod of duration of notice to ground various causes of action. Thenotice P1 as far as the duration is concerned, conforms to therequirement of Section 22(3) (a) and it even conforms to the temporalrequirement suggested by Sharvananda, C.J. in Wellington's case(supra). In these circumstances, in my opinion the test to be adopted iswhether the notice P1 has been given by the landlord with the intentionof terminating the tenancy and the tenant would have reasonablyunderstood it as serving that purpose. I do not think that this reasonableexpectation required on the part of the tenant can be negatived by the
ominibus averment containing in every answer of a tenant that the notice"is not valid in law.'
Applying this test it seems to me that P1 serves as a valid notice oftermination of tenancy and this appeal succeeds. The judgement of theCourt of Appeal is *561 aside and the judgement of the Original Court isaffirmed. The appellant landlord will be entitled to costs in this court andcourts below.
H. A. G. De SILVA, J. – I agree.
AMERASINGHE, J. – I agree.
Appeal allowed.