048-NLR-NLR-V-46-VIRASINGHE-Appellant-and-PERIS-Respondent.pdf
Virasinghe and Peris.
139
1934Present: Wijeyewardene J.
VIRASINGHE, Appellant, and PERIS, Respondent.
19—C. R. Colombo, 87,736.
Landlord and tenant—Expiry of notice to quit—Action instituted for ejectment,rent and damages—Payment, after service of summons, of a sum asdamages and not as rent—Waiver of notice.
Where, after the expiry of a notice to quit, a landlord sued a tenantfor ejectment and recovery of rent and damages and, notwithstandingthe subsequent payment, as damages, of a sum greater than the rentdue, refused to issue any receipts to the defendant and continned theaction—
Held, that the receipt' of damages pending the action could not beinterpreted as a waiver of the notice to quit.
“ The question of waiver of notice—if one may use an expressionwhich has been condemned as a loose and unscientific expression—cannot be discussed as an abstract question of law but should be con-sidered with reference to the facts of each particular case. "
Fonseka v. Naiyan AH (1920) 22 N. L. R. 447 distinguished.
A
PPEAL from a judgment of the Commissioner of Requests,Colombo.
H. W. Thambiah for the defendant, appellant.
G. P. J. Kurukvlasuriya for the plaintiff, respondent.
Cur. adv. vult.
140
WUEYEWABDKNE J.—Virasinghe and Pen*.
March, 26, 1943. Vijkykwardknb J.—
The defendant was a tenant of the plaintiff paying a monthly rental ofIts. 60. The plaintiff gave notice to the defendant on September 29,
asking him to vacate the house at the end of October Tliedefendant failed to do so and, the plaintiff filed the present action onNovember 6, for the ejectment of the defendant and for the recovery ofBs. 60 as rent and damages at Its. 60 a month from November 1.On December 10, the defendant sent the plaintiff’s attorney a chequefor Bs 140 and filed answer on December 11. His only plea in theanswer was that a month's notice was insufficient and he askedin .the prayer that he should be given time jtill the end of January
to vacate the premises. Though the answer did not disclosea defence which could have been successfully urged, yet the filingof the answer enabled the defendant to prevent the plaintiff fromgetting a decree against him on the summons returnable date. Whenthe case came up for trial the Counsel who appeared for the defendantin the lower Court suggested the following among other issues: “ Wasthe notice to quit pleaded in the plaint waived by .the subsequentacceptance of rent ?” On the plaintiff’s Counsel objecting .to the issueas it did not arise on the answer, the defendant's Counsel stated that theplea could not have been raised in the answer as the payment referredto was made after the filing of the answer. That statement was incorrectas was shown later when the defendant gave evidence and admitted thatthe payment was made before the answer was filed. However, on .thestrength of that, erroneous statement of his Counsel, the defendantsucceeded in getting that issue framed. After hearing evidence theCommissioner entered judgment against the defendant on December 21.The defendant thereupon filed the present appeal and has continued to bein occupation of the premises up to date.
The Counsel for the appellant relied on Fonseka v. Naiyam Alt * insupport of his contention that there was a " waiver of notice ”. Thatcase was on action for ejectment filed on January 9; 1920, by a landlordagainst his monthly tenant on the ground that the tenancy had beendetermined on December 31, 1919, by a notice to quit. It was provedby the defendant that under the contract of tenancy he had to pay renton or before the 10th day of each month and that the plaintiff hadaccepted from him on each of the dates—January 10 and February 10—a sum of money equivalent to the monthly rent and issued receipts tohim stating that the sums of money were received as rents for Januaryand February respectively. It was held by the Court that these circum-stances proved that the landlord hhd “ waived ” the notice. Thecontention of the Council for the landlord that the acceptance of rentafter the institution of the action could not affect the rights of partiesat the date of the action whb rejected by de Sampayo J. on the groundthat the tenant paid the rent before the summons was served on himand that therefore the action could not be regarded as pending at thetime of the payment. The facts of the present case are entirely different.The payment here was made after the service of summons. The
» IS If. Lu R. 447.
WIJEYBWABDENE J.— Virasingke and Peris.
141
defendant himself has stated in his evidence that he knew that he wasliable to pay damages to the plaintiff and that the cheque for Bs. 140• was sent by him “ in part payment of the damages The defendantwho has described himself as a teacher at a well-known educationalinstitution must have understood perfectly well the meaning of thewords he used. Moreover, his failure to raise this plea in the answerfiled by him after the payment shows that it was not made by him as apayment of rent. The plaintiff’s attorney who gave evidence statedthat he received the cheque but did not accept it on account of rentand did not, in fact, issue any receipts to the defendant in respect of thatpayment. Moreover, the amount paid was more than the rent due atthe date of the payment, and it is difficult to base' on such a paymentan artificial presumption in support of a plea of waiver (vide LondonSchool Board v. Peters '.)
The question of waiver of notice—if one. may use an expression whichhas been condemned as a loose and unscientific expression—cannot bediscussed as a abstract question of law but should be considered withreference to the facts of each particular case.It would be absolutely
unreal to impute to the plaintiff in this case an intention to waive thenotice when her conduct right through the proceedinbs is a negation ofsuch an intention. The plaintiff could not have known her own mindif she waived the notice and yet refused to issue receipts to the defendantand continued the action for ejectment. Moreover, the evidence of thedefendant shows that he did not make the ^payment as rent. Thisquestion has been considered in Davis v. Bristow 2 and some subsequentcases with special reference to the statutory tenancies created ~ underthe Increase of Rent (War Restrictions) Acts of 1915 and 1919. Butth following passage from the judgment of Lush J. in Davies v. Bridtow(supra} shows how one should approach the consideration of this questionwith regard to tenancies in general :
"Where a breach of covenant available for forfeiture has beencommitted by a tenant it is correct enough to say that the landlordcan waive the forfeiture, for by the breach of covenant the term is notavoided, it is only rendered voidable, at the landlord’s option. He canelect whether to affirm or disaffirm the tenancy and if he by someact evinces an unequivocal intention to affirm it, as by the acceptanceof rent with notice of the breach, he cannot afterwards insist on theforfeiture, and no statement made by him at the time of doing that'act that he does it without prejudice to his right to re-enter will affectthe conclusion that the forfeiture is waived. The earlier cases werecases of forfeiture ; they were not cases in which the term had beenbrought to an end- by a notice to quit, and in my opinion the principlewhich is applicable to the former class of cases is not applicable to thelatter. When once the notice to quit has expired the position of theparties is precisely the same as it would be if the original lease hadprovided for the determination of the term on the date mentionedin the notice. There is in that case no room for the election by thelandlord. The landlord and the tenant may of course agree that &•
» 1902—18 Times L. R. 509.
2 {1920) 3 King's Bench, 428.
142
WIJEYEWABDENE J.—In re Seeman.
new tenancy shall be created on the old terms and that_is what ineffect they jo when they agree that .the notice to quit shall be waived.But the agreement to continue the tenancy must be proved. It must .be shown that the parties were ad idem as to the termsIt is not possible to hold on any reasonable interpretation of the factein this case that there has been a “ waiver of the notice ”. I woulddismiss the appeal with costs-
Appeal dismissed.