013-NLR-NLR-V-70-V.-M.-ABDUL-SAMAD-Appellant-and-H.-D.-SIRINAYAKE-Respondent.pdf
AXLES, J.—Abdul Samad v. Sirinayake
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1867Present: Alles, J.
V. M. ABDUX, SAMAD, Appellant, and H. D. SIRINAYAKE,
Respondent
S. C. 68/1966—C.R. Kandy, 18382
Rent Restriction (Amendment) Act No. 12 of I960—Applicability of its provisionsat stage of execution of decree—Inapplicability if tenant is in arrears of rentfor 3 months■—Rent Restriction Act, s. 12 A (1) (a).
Where execution proceedings for the enforcement of a decree obtained by alandlord for the ejectment of his tenant had begun but were not completedon the date when the Rent Restriction (Amendment) Act No. 12 of 1966came into operation, the tenant is entitled to take shelter under the provisionsof the Amending Act, even if he had gained time by unsuccessful applicationsfor stay of execution of wTrit and by preferring an appeal to the Supreme Court.But he is liable to be ejected under section 12 A (1) (a) of the Rent RestrictionAct (as amended by Act No. 12 of 1966) if he was in arrears of rent for threemonths at the time of the institution of the action.
.A.PPEAX from a judgment of the Court of Requests, Kandy.
S.Sharvananda, with M. Sivarajasingham, for the plaintiff-appellant.
T.B. Dissanayake, with Nihal Jayawickrema, for the defendant-respondent.
Cur. adv. vult.
August 14, 1967. Alles, J.—
This case illustrates some of the hazards that have to be experiencedby a landlord after the passing of the Rent Restriction (Amendment)Act No. 12 of 1966.
The plaintiff filed action against his tenant, the defendant, on 2.7.64for ejectment from the premises in question on the ground that thedefendant was in arrears of rent from December 1963 to June 1964.During the course of the trial the case was settled and it was agreedbetween the parties that the defendant was in arrears of rent ; thedefendant agreed to pay the arrears of rent amounting to Rs. 724/32 anda further sum of Rs. 47/94 monthly as damages failing which the plaintiffwas entitled to take out writ. The terms of the consent decree werecarefully drawn up by both parties a id supplemented by further condi-tions on 3.6.65. On 16.9.65, it was brought to the notice of Courtthat the defendant had defaulted in the payment of the very first monthlyinstalment agreed upon between the parties. The defendant deniedthat there was any default* and the dispute was fixed for inquiry. On
10.65, after hearing the submissions of Counsel, the Court dismissedthe objections of the defendant and the application for execution of the
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ALLiES, J.—Abdul Samad v. Sirinaycikz
writ was allowed. The Court was of the view that the defendant’sobjections were devoid of merit and were merely an excuse for his failureto pay. From this order the defendant made applications to the SupremeCourt in Revision or restitutio in integrum and also lodged an appeal.The application in revision was dismissed on 10.12.65 and the appealwas withdrawn on 23.3.66. When the record was returned to the Court,Proctor for the plaintiff on 7.4.66 again moved for the re-issue of writ andthe application was allowed on 28.4.66. On the same day the liquidatorof the Company of which the defendant was the Manager intervenedand prayed that writ be stayed pending inquiry as he claimed to be inpossession and not bound by the decree. The defendant acquiesced inthe petitioner’s application. This application came up for inquiryon 6.5.66 and the Magistrate made order on 31.5.66 that the applicationlacked bona tides and dismissed the liquidator’s application. Thereafterthe learned Commissioner proceeded to consider the legal position resultingfrom the passing of the Amendment Act which received the Governor-General’s assent on 10.5.66 and held, that in view of the provisions of theAmending Act which was given retrospective effect from 20.7.62, theplaintiff was not entitled to take proceedings for the enforcement of thedecree. It would appear that as a result of the two applications for thestay of writ and the abandonment of the appeal, the passage of time hadenured to the benefit of the defendant who was now able to take shelterunder the provisions of the Amending Act. The present appeal is fromthe order of the Commissioner of 31.5.66.
For the plaintiff to succeed in appeal he must satisfy the Court in thiscase that the defendant was in arrears of rent for three months at thetime of the institution of the action on 2.7.64. Between January 1964and the date of action the defendant remitted the rent for four months,the other cheques in payment of rent being dishonoured. He has there-fore paid rent for the months of December 1963 and January, Februaryand March 1964. The June rent was not due on the date the plaint wasfiled. The defendant was therefore in arrears of rent only for two months—April and May. Consequently the plaintiff cannot avail himself ofthe benefit of the new section 12A (1) {a) of the Amending Act sinceproceedings for the enforcement of the decree had ‘ begun ’ but were notcompleted on the date the Amending Act came into operation.
Since both Commissioners who heard the objections of the defendantto the issue of writ were of the view that the defendant’s application of
10.65 and his nominee’s application of 6.6.66 were devoid of meritand intended to delay the issue of writ which enabled the defendant tosuccessfully seek shelter under the provisions of the law, I would, in thecircumstances of this case, wThile being constrained to dismiss the appeal,deprive the defendant of his costs in appeal.
A'p'peal dismissed,