072-NLR-NLR-V-25-THE-IMPERIAL-TEA-CO.-LTD-v.-ARAMADY.pdf
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Present: Jayewardene A.J.
THE IMPERIAL TEA CO., LTD., v. ARAMADY.
192—C. R. Nuwara Eliya, 7,352.
Landlord and tenant—Notice to quit “ icithin ” a month—Good notice—
Date for which month's notice should run—Reasonable notice*
The plaintiff on February 2B gave notice to his tenant to quit thepremises “ within a month from the said date.” N
Hddy that this was a good notice, as the tenant had the whole ofthe last day of the month within which to leave the premises.
The time from which a month should be calculated for thepurposes of a notice to quit does not depend upon the date of thecommencement of the tenancy.
The law requires that the tenant should have a reasonable notice,and a notice otherwise reasonable is not rendered unreasonable andinvalid merely because it expires on some day other than the lastday of the month calculated from the commencement of the tenancy.
rj^HIS was an action for ejectment and rent by a landlord.
The facts are set out in the judgment of the Commissioner ofRequests (M. T. Archibald, Esq.):—
Defendant in this case is a monthly tenant. He admits that he wasgiven a month’s notice as far back as February 2$ last. Defendant hasbeen a monthly tenant since 1918, but he now turns round and says :“I am a pawnbroker. Therefore I must have at least one year’snotice.”
How, it appears that defendant has Rs. 1,400 worth of articles inpawn, and certain sums outstanding which he has to recover. But thisis no fault of the plaintiff company.
In 3 N. L. Rr 340 it was held that the notice must be reasonableenough to admit of a tenant having an opportunity to secure anotherhouse. In this case defendant says he is unable to secure another house,as all the boutiques and houses belong to plaintiff company. On theterms of his tenancy defendant seems to me to have no case. I wouldenter judgment for plaintiff as prayed for at (a), (6), and (d) of the plaint,and for a further sum of Rs. 10 per month as rent from June 1, 1923,
Peri Sunderam, for the defendant, appellant.
H. E. Garvin, for plaintiff, respondent.
October 4, 1923. Jayewardene A.J.—
This is a case of landlord and tenant. The plaintiff^ the landlord,sued the defendant his tenant, who occupies a boutique at Nanu-oya,for ejectment and rent. Questions have been raised with regardto the sufficiency, reasonableness, and waiver of the notice to quit
1923.
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1923.
Jaybwab-DBHB A. J.
The ImperialTeaCo.fLtd.*v. Aramady
given. The defendant is admittedly a monthly tenant. Theplaintiff, on February 28, 1923, gave the defendant notice to quitthe premises “ within a month from the said date.” The firstquestion is : Is this a month’s notice ? On consideration, 1 thinkit is. “ Within,” with reference to tune, means “ not longer agothan,” “ not later than.” So that the tenant had the whole of tfielast day of the month within which to leave the premises. Itamounts to the same thing as giving a tenant a month’s notice. Heis not entitled to stay beyond the last day of the month. In myopinion the notice is a good month’s notice. Then it is contendedthat in order to ascertain whether this is a month’s notice, it isnecessary to find out when the tenancy commenced, and reliance isplaced on Warwick Major v. Fernando,1 in which De Sampayo J.said:—
“ It is well settled that a monthly tenant is entitled to a month’snotice, and the time from which the month should becalculated would depend upon the commencement of thetenancy.”
But in the present case no question was raised in the lower Courtas to the date on which the tenancy commenced, and the partiesappear to have assumed that the tenancy commenced on the first ofa month. Mr. Sunderam asks that the case be sent back for thepurpose of ascertaining the date of the commencement of thetenancy, but I see no reason to accede to his request. It has alsobeen held in several cases that to terminate a monthly tenancy, it isnecessary to give the tenant a month’s notice, terminating at the endof a current month of the tenancy (C. E. Colombo 87,694,2 Fonsekav. Jayawickrema,3 Warwick Major v. Fernando (supra), and LokuMenika v. Charles Sinno 4). Thus, if premises are let to a tenanton the 15th of a month, and notice is given on the 24th of asubsequent month requiring the tenant to quit the premises on the31st of the next month, this is not a month’s notice in law (WarwickMajor v. Fernando (supra) ), as in a monthly tenancy the lease runsfrom month to month, and not for broken periods. This principlewas first laid down locally in a case reported in Grenier’s Reports, byCreasy C. J., where he said :—
“ We must read the Nisi Prius case of Huff el v. Armistead5 inconnection with the subsequent case of Jones v. Mills,which came before the Court of Common Pleas in Banc,and which is reported in 31 L. J. (C. P) 66. I shouldhave been glad of more express authority on the subject,but as at present advised, I think, with Mr. JusticeWilliams, that the notice must be one commensurate with
1 (1917 4 C. W. B. 221.3 {1892) 2 Ceylon L. R. 134.
3 {1873) 2 Grenier's Rep. 23.* {1918) 5 C. W. R. 281.
3 7C.diP.57.
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the term for which the letting was, that is, a month for amonth ; and I also think that it must be a notice expiringat the expiration of a current month after the date of thenotice. Evidence of custom might be given in these cases,and might have the effect of varying the presumptionarising from the mere nature of the tenancy.11
However, in Weerapetumal v. Davood Mohamad1 Bonser C.J.held that what was required was “reasonable notice,” and not“ notice of any definite length of time.” He said :—
“ As I understand the law, no notice of any definite length oftime is required. It must be reasonable notice—reason-ably sufficient in the opinion of the Judge to admit of atenant having an opportunity of securing another house.A month’s notice has been in several cases consideredreasonable, and in this case the tenant had more than amonth’s notice.”
In Loku Menika v. Charles Sinno (swpra), Shaw J., remarking thatthere was not any very considerable strength of authority upon thepoint, preferred to follow the judgment of Creasy C.J. and thedecisions based on it. The judgment of Greasy C.J. was based oncertain English cases, but recently the cases on which Creasy C.J.relied have been referred to and commented on by a DivisionalBench of the High Court in England (Swift and Acton JJ.) inSimmons v. CrossUy
There Swift J. said:—
“ In this conflict of judicial opinion it seems to me that the viewheld by Wright J. is the more correct. I think that todetermine a monthly or weekly tenancy reasonable noticemust be given, and that such notice, if in other respectsreasonable, is not rendered unreasonable and invalidmerely because it expires on some day other than the lastday of the month or week calculated from the commence-ment of the tenancy.”
And Acton J. said :—
“ All we are deciding is that a notice to determine a monthlytenancy, limited in duration by calendar months andbeginning on the first day of a calendar month, is sufficientif it is a reasonable notice; and that if it is in all otherrespects sufficient and reasonable, it does not becomeunreasonable merely because its expiry does not preciselycoincide with the expiry of a calendar month.” 1
111898) 3 N. L. R. 340,.8 (1922) 2 K. 5. 95.
1928.
Jatbwar-DBXK A. J.
The ImperialTea Co., Ltd.,v* Aramady
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1923.
Jayewar-DENE A. J.
The Imperial
TeaC'o.yLtd,,r. Ammatbj
The English authority, in my opinion, throws considerable doubton the judgment of Creasy C.J. and the judgments based on it, andshows that the view taken by Bonser C.J. is the more correct one.In this view, too, it is undesirable to send the case back for thepurpose indicated by counsel for the appellant. As regards thereasonableness of the notice, a month’s notice has been consideredto be reasonable notice in the case of monthly tenancies, and I see noreason why the same test should not apply here. The boutique wasnot let to the defendant to be used as a pawnbroker's shop, for hestarted his business as a- pawnbroker after he began to occupy theboutique as tenant. The considerations referred to in paragraph 4of the answer do not, in the circumstances of the case, render amonth’s notice unreasonable. The defendant must have been awareall along that he would have to quit the premises on a month's notice.As regards the question of waiver of notice to quit, by the receipt ofrent after notice to quit had been given by the plaintiff, no suchquestion was raised at the trial. The question of waiver is a questionwhich depends on the circumstances under which the rent wasreceived. The rent might have been received conditionally, or aspart payment of the rent claimed in the action- The plaintiff isentitled to prove that the rent was received under circumstanceswhich do not amount to a waiver. It has often been held that thisCourt sitting in appeal will not allow questions to be raised here forthe first time, unless the Court is satisfied that it has before it all thefacts and no satisfactory explanation can be given of those facts bythe opposite party. Here,again, I see no reason to send the case backto ascertain the facts necessary to decide the question of waiver.The facts on which it arises were known to the defendant's legaladvisers at the trial, but they did not think it fit to raise the question.They may have done so for very good reasons. The appeal fails onall points, and it is accordingly dismissed, with costs.
Appeal dismissed.