SANSONI) J,—Helendhamy v. Eastern Hardware Stores, Ltd.
U.G. HELENAHAMY, Appellant, – and E ASTERNHARDWARE STORES LTX>., Respondent
S. G. 17—C. R. Colombo, 66,331
Rent Restriction Act—Arrears of rent-—Effect thereof—Waiver by landlord of his rightto sue tenant—Duty of tenant to plead it—Payment of rent—Effect of acceptingit late occasionally.
Once a tenant has been, in arrear of rent for one month after it has become-due he forfeits the protection given to him by the Rent Restriction Act againstbeing ejected.
Where waiver by a landlord of his right to sue his tenant is neither pleadednor put in issue, the question cannot be agitated for the first time in appeal.
An occasional late payment of rent which the landlord is prepared to overlookdoes not alter the term of the contract as regards the time of payment.
^^PPEAL from a judgment of the Court of Requests, Colombo.
H. W. Jayewardene, Q. 0., "with N. R. M. Dalmoatte, for the defendant-appellant.
ThiUainathan, for the plaintiff-respondent.
Cur. adv. vult.
October 28, 1958. Sastsoni, J.—
The plaintiffs rented premises No. 562 and premises No. 568/56 to thedefendant on two tenancy agreements. The rent for the former premises■was agreed at Rs. 35/50 a month and for the latter at Rs. 14/78 a month.It was agreed also that the rent should be paid on or before the 5th ofeach month.
This action was filed on 5th June 1957 in respect of premises No. 562,to recover arrears of rent and to eject the defendant on the ground thatrent was in arrear for one month after it became due. In her answerthe defendant pleaded that the rent was payable, not on or before the5th of each month, but on or before the 10th of the following month.She also pleaded that rent was not in arrear. After trial the Comm is-sioner gave judgment in favour of the plaintiffs and th® defendant hasappealed.
SA2TSONT, J.—B*Unnhrmy Ef>*tarn Hrti'&wnrs Store*. Ltd.141
It is common ground- that the auuhorised rent for premises No. 508/56is Rs. 11 /84 a month., and chat ths plaintiffs ha 1 recovered a sum ofRs. 105/59: in excess of the authorised rent up to 1st December 1956.It is also clear that the delsudanS paid no rent between 1st December1956 and 12th March 1357, but it has been claimed that the excess rentrecovered amounting to Rs. 105/8=: should be set offagainst the rent whichfell due during that particular period. Bat even this set-off will not helpthe defendant, since the correct; rent for both premises is Us. 47/3-4 amonth and the rent for December 1356 and January and February 1957would therefore amount to Rs. 142/02. If the Rs. 105/84 is deductedfrom this sum, Rs. 36/18 was still due from the defendant on 5th February1957. Nothing was paid thereafter until 12th March 1957. By thatdate the rent was in arrear for one month, after it fell due.
Mr. Jayawardene submitted that as notice to quit was not given until16th March and a payment was accepted on 12th March the plaintiffscannot avail themselves of proviso (a) to section 13 of the Rent Res-triction Act, No. 29 of IS48. I cannot agree, for it was held in Dias v.Gomes 1 * that once a tenant has been in arrear of rentjv one month after,it has become due he forfeits the protection given ' > him by the Aetagainst being ejected.
Another point which was argued was the question, of waiver. It wassaid that the plaintiffs waived their right to sue for ejectment by acceptinga payment on 12th March of a sum of Rs. 50/28. This payment did notsettle the amount due up to 5th Mareh and was therefore only a partpayment. But the question of waiver cannot be considered at this stage,for waiver depends on evidence of fact, and where waiver was neitherpleaded nor put in issue the question cannot be agitated for the firsttime in appeal—see Edridge v. Sustomji a.
A faint suggestion was made that because rent had occasionally beenaccepted by the plaintiffs when it was offered after the due date it ceasedto he payable on the oth of each month. A passing reference was madeto Swp%>iah v. Kandiah 3, which dealt with an entirely different state offacts. I do not understand the law to be that an occasional late paymentof rent which the landlord is prepared to overlook alters the term of thecontract as regards the time of payment. There must at least be acquies-cence extending over a long period from which it may be reasonablyinferred that the tenant has been, granted permission to pay rent laterthan the date stipulated. I need not dwell longer on this topie sinceeven the defendant has made no reference to rent being payable on the10th of the following month when she gave evidence.
The appeal is dismissed with costs.
1 (1954) 55 N. L. R. 331.
3 A. 1. It. f1933) P. G. 233.
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U. G. HELENAHAMY, Appellent, and EASTERN HARDWARE STORES .LTD, Respondent