021-NLR-NLR-V-62-THE-CHETTINAD-CORPORATION-LTD-Appellant-and-GAMAGE-and-another-Respondent.pdf
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The Chettinad Corporation Ltd. v. Carnage
Present: Basnayake, C.J., and H. N. G. Fernando, J.
THE CHETTINAD CORPORATION DTD., Appellant, and GAMAGE
and another, Respondents
S. C. 107—G. R. Colombo, 60478
Rent Restriction Act, No. 29 of 1948—Sub-letting—Condonation by landlord—Land-lord's right to eject tenant-.—Standard rent—Computation when rented premisesare subsequently consolidated with adjoining premises—Sections 5 (1), 9 (1),9 (2), 13.
When premises are sub-let without the prior written consent of thelandlord., in contravention of section 9(1) of the Rent Restriction Act, thelandlord’s failure or omission to institute legal proceedings forthwith for theejectment of the offending tenant does not deprive him of his statutory rightto eject the tenant despite his condonation of the sub-letting.
Robert v. Rashad (1954) 55 N. L. R. 517, not followed.
Tenement No. 273/2 was assessed in November 1948 at an annual valueof Rs. 850. In 1951 the same tenement and the adjoining tenement No. 275were consolidated and assessed together at the annual value of Rs. 425.
Held, that, under section 5 (1) of the Rent Restriction Act, whatever mayhave been the result of the consolidated assessment and the alteration of thenumber of the premises, the annual value of premises No. 273/2 for the purposesof the Rent Restriction Act remained at Rs. 850 inasmuch as it was fixed at- that figure when the assessment was made for the first time in 1948.
BASNAYAKE, C.J.—The Chettinad Corporation Ltd. v. Carnage
8?
Appeal from a judgment of the Court of Requests, Colombo.
EL. V. Perera, Q.C., with W. D. Ghinasekera, for Plaintiff-Appellant.
EL. W. Jay&ward&net Q.G., with D. J£. P. Goonetilleke and L. G.Seneviratne, for 1st Defendant-Respondent.
March 4, 1960. Bactayake, C.J.—
This is an action for ejectment from premises No. 66 Nawala Road,Nugegoda, let to the 1st defendant by the plaintiff. It is alleged that the2nd defendant is a sub-tenant of the 1st defendant, and ejectment issought on the ground that the 1st defendant had sub-let the premiseswithout the prior consent in writing of the landlord as required by section9 (1) of the Rent Restriction Act, No. 29 of 1948. That provision reads :
“ Notwithstanding anything in any other law, but subject to anyprovision to the contrary in any written contract or agreement, thetenant of any premises to which this Act applies shall not, withoutthe prior consent in writing of the landlord, sub-let the premises orany part thereof to any other person.”
The 1st defendant denied that he sub-let the premises or that the2nd defendant is his sub-tenant. In reconvention he pleaded that asum of Rs. 1,683/28 has been paid by him in excess of the authorised rentof the premises but he confined his claim to a sum of Rs. 300/- reservingthe right to recover the balance in an appropriate action as this is anaction in the Court of Requests. The learned Commissioner of Requestshas found on the facts that the 1st defendant had sub-let a portion ofthe house to the 2nd defendant. As a matter of law he has held thatthe sub-letting has been condoned by the plaintiff and that he is thereforenot entitled to a decree against the 1st defendant. He has further heldthat the plaintiff has recovered a sum of Rs. 1,279/80 from the 1stdefendant in excess of the authorised rent of the premises for the threeyears immediately prior to the institution of the action.
In appeal it is submitted that the learned Commissioner of Requests iswrong in law in holding that there has been a condonation by the plain-tiff of the sub-letting. . This submission is entitled to succeed. A land-lord has a right to institute an action for the ejectment of his tenantwhere the premises are sub-let in contravention of section 9 (1) of theAct which forbids the tenant to sub-let the premises without the priorconsent in writing of the landlord. His failure or omission to institutelegal proceedings against the offending tenant no sooner than he becomesaware of the breach of section 9 (1) by him does not deprive him of thatstatutory right. The right conferred by section 9 (2) is unqualified andit would be wrong to restrict that right by judicial decision. In the
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BASNAYA3LE, C.J.—The Ghetlinad Corporation Ltd. v. Carnage
instant case the landlord was entitled, notwithstanding the provisionscontained in section 13 of the Rent Restriction Act, to institute anaction for the ejectment of the 1st defendant from the premises.
The only other question for decision is whether the case of D. T. Robertv. Mrs. P. Rash ad1 which has been cited both in the lower court andbefore us is correct. It is submitted by counsel for the appellant thatthat decision is wrong. The submission of counsel is in our view sound.We find ourselves unable to subscribe to it. The principles which havebeen set out therein are derived from the English case of Hyde v. Pimley2which is a decision on an enactment that is different from ours. TheEnglish enactment does not require written prior consent of the land-lord as in the case of our enactment which requires “ prior consent inwriting The material portion of the English, enactment (Rent &Mortgage Interest Restrictions (Amendment) Act 1933—Schedule 1)reads—
“ A court shall, for the purpose of section three of this Act, havepower to make or give an order or judgment for the recovery ofpossession of any dwelling house to which the principal Acts apply orfor the ejectment of a tenant therefrom without proof of suitablealternative accommodation (where the court considers it reasonable soto do) if—
(«) *
the tenant without the consent of the landlord has at any timeafter the thirty-first day of July, nineteen hundred and twenty-three,assigned or sub-let the whole of the dwelling-house or sub-let part ofthe dwelling-house, the remainder being already sub-let.”
The words “ without the consent of the landlord ” have been construedto cover a case of implied consent. Acceptance of rent without objectionfor four and half months after knowledge of the sub-letting was held toamount to implied consent. Our enactment does not admit of sucha construction. It is not necessary that, where the landlord becomesaware of the contravention of section 9, he must elect whether or notto treat the contract of tenancy as terminated. The moment there is acontravention of section 9 (1) his right to bring an action comes intoexistence and there is nothing in the enactment which fetters the exerciseof that right thereafter.
1 (1954) 55 N. L. R. 517.
8 (1952) 2 All E. R. 102 at 104, 105.
BASNAYAKK, C.J.—The Chettinad Corporation. Ltd. v. Carriage
89
Now in regard to the claim in reconvention it is submitted thatpremises No. 273/2 which is the house which was let to the 1st defendantin 1948 was a twin cottage. It was assessed in November 1948 at anannual value of Bs. 850/-. There was another tenement adjoiningNo. 273 which was for the purpose of assessment numbered as No. 275.In 1951, under the powers given to the local authority a consolidationof the two premises was made for the purpose of assessing the rates, andpremises No. 273/2 and 275 were consolidated and assessed together atthe annual value of Rs. 425/-. It is contended on behalf of the defendantthat premises No. 273/2 thereafter ceased to bear the annual value ofUs. 850/-. With that contention we are unable to agree. • Section5 (1) of the Rent Restriction Act provides that “in the case of anypremises the annual value of which was or is assessed for the purposesof any rates levied by any local authority under any written law, thestandard rent of the premises means the amount of the annual value ofsuch premises as specified in the assessment in force under such writtenlaw during the month of November 1941 or if the assessment of theannual value of such premises is made for the first time afer that month,the amount of such annual value as specified in such first assessment.”Whatever may have been the result of the consolidated assessment andthe alteration of the number of the premises, the annual value of thepremises for the purposes of the Rent Restriction Act remained at Rs. 850/-as the annual value of the premises in question was fixed at that figurewhen the assessment was made for the first time in 1948. We are ofopinion that the learned Commissioner of Requests is wrong in holdingthat there had been a payment by the defendant to the plaintiff inexcess of the authorised rent of the premises. We accordingly setaside the judgment of the learned Commissioner of Requests dismissingthe plaintiff’s action and holding that he should pay to the 1st defendant .a sum Rs. 300/-.
In view of our findings on the question of law the plaintiff is entitled tojudgment for the ejectment of the defendant as prayed for in the plaint,and we accordingly direct that the 1st and 2nd defendants and all personsholding under them be ejected from premises No. 273/2 described inthe plaint as No. 56, Nawala Road, Nugegoda. We also direct that the1st defendant be ordered to pay the authorised rent of the premises tothe plaintiff until he is ejected and the plaintiff is placed and quieted inpossession thereof. The plaintiff is entitled to the costs of the trial andof this appeal.
H. N. G. Feenando, J.—I agree.
Appeal allowed.