012-SLLR-SLLR-1990-2-VAAS-v.-RODRIGO.pdf
VAAS
v.RODRIGO
COURT OF APPEAL.
WIJETUNGA. J..
C.A. No. 977/82 (F.) – D.C. COLOMBO No. 3947/RE..
MAY 15, 1990.
Landlord and tenant — Defendant contesting validity of notice to quit — Burden of raisingissue on validity of notice to quit – waiver – Date of Commencement of tenancy -Reasonable requirement.
{1) What the Law requires is that a notice of termination of a monthly tenancy must runconcurrently with the term of the letting and hiring, in the absence of an agreement to thecontrary. If therefore the Defendant was challenging the validity of the Notice to quit on thisbasis, it was incumbent on him to have raised an issue on this matter, as otherwise theplaintiff would be denied the opportunity of placing the necessary evidence, if any, beforethe Court in regard to the term of letting and hiring. The defendant's failure to put thevalidity of the notice in issue is tantamount to a waiver.
There must exist at the relevant date a present requirement to use the premises forthe purpose of a business which has already been established or, in the alternative, whichwill be.established by him as soon as the premises are made available to him. The elementof immediate requirement can be established with reference to an event which would takeplace oh a specified date in the near future.
Cases referred to:
Chettinad Corporation Ltd., v. Zaneek55 NLR 152|2) Warwick Major v. Fernando 4 CWR 221, 222
Andrea v. de Fonseka 51 NLR 213,215,216
Hameedu Lebbe v. Adam Saibo 50 NLR 181
Appuhamyv. De Silva 67 NLR 188
APPEAL from judgment of the District Court of Colombo.
P. A. D. Samarasekera, P. C. with Shantha Perera for the defendant – appellant
H. L. de Silva, P C. with S. Parathalingam, P. N. Ratnawardena and Janake de Silva forplaintiff – respondent
Cur. adv. vult.
September 21,1990WIJETUNGA, J.
The plaintiff sued the defendent inter alia in ejectment from thepremises in suit and for recovery of arrears of rent and damages. It wasaverred that the said premises are reasonably required by the plaintiffand the members of his family, within the meaning of Section 22{ 1 )(fc>) ofthe Rent Act, No. 7 of 1972 and also that the defendant is in arrears ofrent for more than three months after the rent fell due, in respect of theperiod 1.12.75 to 31.1.80. The rent was payable at the end of eachand every month.
On or about 27,12.78, the plaintiff, by his Attorney-at-Law, gave thedefendant notice to quit the said premises at the end of 31.12.79, inaccordance with the provisions of Section 22(6) of the Rent Act.
The defendant, in his answer, stated inter alia that he had taken thesaid premises from the plaintiff on a monthly rental of Rs. 200, butdenied having taken or received the furniture and fittings referred to inthe second schedule to the plaint. He admitted the receipt of the noticeto quit, but claimed that it was not valid in law. He further made a claim inreconvention in a sum of Rs. 11,345.
At the commencement of the trial, the following admissions wererecorded that –
the defendant received the notice dated 27.12.78 ;
the standard rent of the premises is less than Rs. 100 per
month ;
the tenancy agreement between the plaintiff and the defendantcommenced after 12.3.72 ; and
a rental of Rs. 200 per month had been paid in respect of thepremises.
The case went to trial on a number of issues and the learned DistrictJudge entered judgement for the plaintiff in ejectment and for therecovery of arrears of rent and damages as specified in the judgement.He further held that the defendant was entitled to the refund of a sum ofRs. 5,000, being a deposit made with the plaintiff in respect of thefurniture. It is from this judgment and decree that the defendant hasappealed to this Court.
At the hearing of this appeal, learned President's Counsel for thedefendant-appellant submitted that there was no proof of lawfultermination of the tenancy, as the plaintiff had not raised an issue on thevalidity of the notice to quit. Learned President's Counsel for the plaintiff-respondent, however, contended that the tenant must put the validity ofthe notice in issue and if no issue is raised, that would be tantamount to awaiver. It must be noted that though the defendant, in his answer, madean averment that the said notice was not valid in law, he did not specifythe grounds on which he claimed the notice to be invalid ; nor did heraise any issue in regard to the validity of the notice.
The case of Chettinad Corporation Ltd., v. Zaneek (1) relied on by theappellant, is no doubt authority for the proposition that the landlordshould establish the termination of the contract, either by due notice orby effluxion of time, before claiming a decree for ejectment. But, Ido not
understand this decision as casting a further obligation on the plaintiff, inevery such case, to raise an issue on the validity of the notice to quit.
In the instant case, the notice, the receipt of which has beenadmitted and which has been produced marked P 6, conforms on theface of it to the requirements of Section 22(6) of the Rent Act, in that,the landlord of the premises has given the tenant one year's notice inwriting of the termination of the tenancy, on the ground that suchpremises are required for occupation as a residence for himself and themembers of his family. It is averred in the plaint that the rent was payableat the end of each and every month, implying thereby that the tenancyhad commenced on the first day of a month. The defendant does notstate in his answer that the tenancy commenced on a date other thanthe first day of a month. Nor has he raised an issue on this matter.Admission No. 3 recorded at the trial merely states that the tenancyagreement between the plaintiff and the defendant commenced after12.3.72. But, this is not an admission that the monthly tenancycommenced on a date other than the first day of a month.
As was stated in Warwick Major v. Fernando, (2) the plaintiff might beable to show by evidence that although the premises were let to thedefendant on a date other than the first day of a month, the agreementwas that the monthly tenancy should be from the beginning of everymonth. As this matter was not raised at the trial by way of an issue, theCourt could not have considered the question of the validity of the saidnotice on the basis that it was not concurrent with the term of thetenancy. What the law requires is that a notice of termination of amonthly tenancy must run concurrently with the term of the letting andhiring, in the absence of an agreement to the contrary. If, therefore, thedefendant was challenging the validity of the notice to quit on this basis,it was incumbent on him to have raised an issue on this matter, asotherwise the plaintiff would be denied the opportunity of placing thenecessary evidence, if any, before the Court in regard to the term of theletting and hiring. The defendant having failed to do so at the trial cannotnew be heard to complain about the validity of the said notice. I am,therefore, of the view that the defendant’s failure to put the validity of thenotice in issue is tantamount to a waiver.
The other matter urged by the appellant is on the question ofreasonable requirement. It was submitted that the plaintiff’srequirement should be immediate and must be shown to exist as at thedate of institution of the action.
Gratiae, J.( in Andree v. de Fonseka,(3) dealing with theprovisions of Section 8(c) of the Rent Restriction Ordinance,No. 60 of 1942, held that it is in certain circumstances open to alandlord, in terms of that section, to claim back his premisesfor the purpose of establishing a business which has not yet comeinto existence. He followed the decision of Nagalingam, J., inHameedu Lebbe v. Adam Saibo,(4) and went on to state atpages 215 and 216 that “there must exist at the relevant date apresent requirement to use the premises for the purposes of a businesswhich has already been established or, in the alternative, which will beestablished by him as soon as the premises are made available to him.*On the same analogy, what the plaintiff in the instant case sought toestablish was his present requirement to use the premises as aresidence for himself and the members of his family, with reference to anevent which was to take place on a specified date in the near future. Theplaintiff was employed in Oman on a contract which was to expire on31.12.82. The learned trial judge was satisfied that he would, in anyevent, reasonably require these premises for his own occupation, on hisreturn to the Island thereafter. Even otherwise, the plaintiff's wife andchildren, who were resident in Colombo, were occupying comparativelymuch smaller premises, paying a monthly rental of Rs. 1.000 and theyrequired the premises in suit for their immediate occupation. On thebalance of convenience as between the parties, the learned trial judgehas unhesitatingly come to the conclusion that the plaintiff shouldsuceed.
Appuhamy v. de Silva, (5) is authority for the proposition that theelement of immediate requirement can be established with reference toan event which would take place on a specified date in the near future. Inthat case, the plaintiff who was a Government servant who was due toretire at an early date, sued the defendant for ejectment on the groundthat the rented premises were reasonably required for his occupation asa residence. It was held that although the plaintiff was in occupation ofGovernment quarters at the time of the institution of the action, it couldnot be contended that his requirement of the rented premises was notimmediate at the time of the action.
In my view, therefore, the defendant cannot succeed on this groundtoo.
For the reasons aforesaid, I would dismiss this appeal with costs.Appeal dismissed.