WIGNESWARAMOORTHY AND ANOTHER
G. P. S. DE SILVA, C.J.
S.C. APPEAL NO. 12/59
A. 54/85(F) COLOMBO 5931/RE
C. COLOMBO 5931/REJANUARY 25, 1995.
Landlord and Tenant – Notice to quit – Sections 22(2) (bb) (ii) and 22(6) of theRent Act – Test of validity of notice – “ut res magis valeat quam pereat" -Construction.
Under Section 22(6) of the Rent Act six months notice in writing of the terminationof the tenancy had to be given prior to institution of the action for ejectment.Notice of termination of tenancy was given by letter dated 27 August 1983requiring the tenant to vacate the premises on or before 28 February 1984. Thisnotice was received by the tenant on 30 August 1983. The tenancy hadcommenced on the 1st of the month. Therefore the period of 6 months has to becomputed from 01 September 1983. The period of six months ends on 29February 1984 as 1984 was a leap year. As the notice required the tenant tovacate on 28 February 1984 there was a shortfall in the notice by one day.
The proper approach to the question of the validity of the notice is to consider theintention of the person giving the notice. A reasonable tenant reading the notice ina reasonable way could not arrive at any other conclusion than that the intentionwas to terminate the tenancy by the end of February 1984. The clear intention ofthe landlord was to terminate the tenancy at the end of February 1984; the factthat February had 29 days was overlooked. This is a fit and proper case toconstrue the notice “ut res magis valeat quam pereaf. The notice was valid inlaw.
Cases referred to:
Warwick Major v. Fernando IV CWR 221.
Loku Menike v. Charles Sinno V CWR 281.
Hankey v. Clavering (1942) 2 All ER 311.
Haniffa v. Sellamuthu 70 NLR 200.
Sidebotham v. Holland (1895) 1 QB 378,383.
Carradine Properties Ltd. v. Aslam (1976) 1 All ER 573.
APPEAL from judgment of the Court of Appeal.
S. Mahenthiran for the plaintiff-appellants.
P. A. D. Samarasekera, PC. with Palitha Kumarasinghe for the defendant-respondent.
Cur. adv. vult.
G. P. S. DE SILVA, C.J.
The plaintiffs instituted these proceedings on 6th April 1984 for theejectment of the defendant (tenant) from the premises in suit underthe provisions of section 22(2) (bb) (ii) of the Rent Act, as amended.After trial, the District Court entered judgment for the plaintiffs. Thedefendant successfully appealed to the Court of Appeal and thejudgment of the District Court was set aside and the plaintiffs’ actiondismissed. Hence the appeal by the plaintiffs to this court.
Special Leave to Appeal to this court was granted only on thefollowing question:-
“Is the notice.to quit marked P1 valid in law?”
The Court of Appeal held against the plaintiffs solely on the groundthat “the notice to quit is bad in law and it has no force or effect andvalidity."
It is a peremptory requirement postulated in the proviso to section22(6) of the Rent Act, as amended, that the landlord should give thetenant “six months notice in writing of the termination of the tenancy”prior to the institution of the action. Mr. Samarasekera for thedefendant-respondent rightly submitted that such notice was acondition precedent to the institution of the action for ejectment.
The notice P1 was dated 27th August 1983 and it required thedefendant to vacate the premises on or before “the 28th day ofFebruary 1984.” The notice was in fact received by the defendant on30th August 1983. It is common ground that the tenancy commencedon the 1st of the month. Therefore the period of 6 months has to becomputed from 1st September 1983 (Warwick Major v. Fernando 0);Loku Menike v. Charles Sinno(2)).
The period of 6 months expires at the end of February 1984. Thepoint to be noted is that 1984 is a leap year and there are 29 days inthe month of February. The notice P1 calls upon the defendant tovacate the premises by 28th February and thus there is a shortfall byone day. The defendant was entitled to occupy the premises till theexpiry of 29th February 1984.
Citing Hankey v. Clavering (3) Mr. Samarasekera stressed thatnotices to determine a tenancy are “documents of a technicalnature, … They are not consensual documents;” Counsel stronglyurged that if there is any defect in the notice of termination of tenancythe action for ejectment must fail; a valid notice of termination oftenancy is a condition precedent to the institution of the action.Mr. Samarasekera further pointed out that the witness (an Attorney-at-Law) called on behalf of the plaintiffs admitted that 6 months notice oftermination of tenancy has not been given to the defendant in thiscase.
It is clear that the notice of termination of tenancy (P1) falls short ofthe requisite period of 6 months by one day. On a carefulconsideration of the facts, it would appear that the writer of the noticeP1 overlooked the fact that 1984 was a leap year and accordinglythere were 29 days in the month of February. The defendant did notgive evidence at the trial nor were any witnesses called on her behalf.There was no evidence whatsoever to suggest that she was inanyway misled by the requirement that she should vacate thepremises by the 28th and not by the 29th of February. The opinionexpressed by the witness called by the plaintiff is not relevant, as theconstruction of P1 raises a question of law. The fact that the witnessfor the plaintiff maintained in his evidence that there was no mistakein P1 does not advance the case for the defendant.
In my view, the proper approach to the question of the validity ofP1 is to consider the intention of the person giving the notice. Thiswas the principle laid down by T. S. Fernando, A.C.J. (with whom SivaSupremaniam, J. agreed) in Haniffa v. Sellamuthu <4). The learnedJudge expressed himself in the following terms: “The substantialquestion in all cases of this kind is the intention of the person givingthe notice as expressed therein." The judgment cites with approvalthe following dictum of Lindley, L.J. in Sidebotham v. Holland®. “Thevalidity of a notice to quit ought not to turn on the splitting of a straw”.
If I may be permitted to say so, the reasoning in Haniffa’s case(supra) is refreshingly free of undue technicality and is in consonancewith a common sense point of view.
Carradine Properties Ltd. v. Aslam<6) cited by Mr. Mahenthiran forthe plaintiffs respondents is another case where a somewhat similarview was taken in regard to the validity of a notice to quit. Goulding,J. having referred to several cases stated thus: “I would put the testgenerally applicable as being this: is the notice quite clear to areasonable tenant reading it? Is it plain that he cannot be misled byit?"
In the appeal before us, could a reasonable tenant reading P1 in areasonable way arrive at any other conclusion than that the intention
was to terminate the tenancy by the end of February 1984? I thinknot. There was no evidence whatever to the contrary. As statedearlier, the tenant neither gave evidence nor called any witnesses onher behalf. Viewed realistically, the insertion of the date February 28in P1 was an obvious mistake; the fact that 1984 was a leap year wasoverlooked. I venture to think that the law relating to the termination oftenancy by a notice as contemplated by the proviso to section 22(6)of the Rent Act does not compel a court to completely shut its eyes toreality.
I accordingly hold that the clear intention of the landlord was toterminate the tenancy at the end of February, 1984; the fact thatFebruary had 29 days was overlooked. In my view this is a fit andproper case to construe the notice P1 “ut res magis valeat quampereatI reverse the finding of the Court of Appeal and hold that P1is valid in law.
Finally, Mr. Samarasekera submitted that in any event the plaintiffsare not entitled to a decree in ejectment as they have failed toestablish that the standard rent of the premises in suit exceedsRs. 100/- per month. Special Leave to Appeal has been granted onlyon the question of the validity of P1, and it not now open to thedefendant to raise any other issue.
In the result, the appeal is allowed with costs, the judgment of theCourt of Appeal is set aside and the judgment of the District Court isrestored. However, I direct writ of ejectment not to issue till 30th April1996. The plaintiffs are entitled to take out writ of ejectment and to beplaced in possession of the premises in suit after 30th April, 1996.
KULATUNGA, J. -1 agree.
RAMANATHAN, J. -1 agree.