092-NLR-NLR-V-61-ZAHIR-Appellant-and-DAVID-SILVA-Respondent.pdf
Zaftir v. David Silva
357
Present: Basnayake, C.J.ZA H1R, Appellant, and DAVID SILVA, RespondentS. C. 202—G. B. Malar a, 6379Landlord and tenant—-Monthly tenancy^-Notice to guit-—Validity—-E&idence—
Admissions—Duty of Court to record them with care—■Evidence Ordinance,
3m 58m
(i) In. the absence of an agreement to the- contrary, the notice of -terminationof a monthly tenancy must run concurrently "with the term of the letting andhiring and must expire at the end of that term.
The tenancy commenced on 12th March 1952. Notice to quit was given on30th January 1957 requesting the defendant to vacate the premises on or before1st March 1957.
Held, that, inasmuch as the tenancy commenced not on the 1st day of themonth but on the 12th, the notice was had.
(h) In view of the provisions of section 58 of the Evidence Ordinance, Judgesshould record with the utmost care any admissions made by the parties.'
358
BASNAYAKE, C.J.—Zdhir v. David Silva
H. W. Jayeioardene, Q.O., with Q. T. Samerawichr&me and N. R. M.Daluioatte, for Plaintiff Appellant.
S. Jayaioickreme, Q.G., with R. D. 3. Jayctselcera, for Defendant-Respondent.
Gut. adv. vv.lt
October 28, 1959. Basnatabte, C.J.—
The only question for decision on this appeal is whether the defendant’stenancy has been terminated by a valid notice. It is clear from thereceipts, PI a to Pi j, spread over the period 1952 to 1956, produced bythe plaintiff that the tenancy was one that commenced on the 12th dayof the month. The first of them (Pla) dated 12th March 1952 reads :“Received from Mr. K. H. M. T. David Silva the sum of Rupees ThirtyNine only being house rent for three months due in respect of premisesNo. 140 at Kotuwegoda for the month commencing from 12th March1952 to 11th June 1952 ”, and the last of them (Plj) dated 29th May1956 reads : “ Received from Mr. K. H. M. T. David Silva of Kotuwegodathe sum of Rupees Thirty Nine being house rent due for three months inrespect of premises No. 140 at Kotuwegoda for the month commencingfrom 12th August 1954 to 11th November 1954 ”. The plaintiff’s ownevidence is also to the effect that the tenancy commenced on 12th March1952. He states : “ I say that this defendant came into occupation ofthese premises on 12.3.52, the amount shown in Pla is the first paymentmade by him to me when he came into occupation of these premises ”.The defendant appears to have been a most unsatisfactory tenant whonever paid his rent regularly. His rent was always in arrears and waspaid at irregular intervals. On 31st January 1957 the total amount ofhis arrears was Rs. 325 and on that day the plaintiff’s Proctor sent thefollowing letter terminating his tenancy :—
“ I write this on instructions from your Landlord Sir. M. I. A. M.Zahir of Kotuwegoda, Matara.
“ I am instructed by my client to request you to pay forthwith thesum of Rupees Three hundred and twenty-five (Rs 325) due as arrearsof rental in respect of the premises occupied by you as my client’stenant.
“ I am furthi r instructed to request you to leave and quit the abovepremises on or before the first day of March this year (1957).
“ If you fail to comply with this legal action will be taken againstyou.”
BASXAYAELE, C.J—Zahir v. David SiJva
359
The defendant’s Proctor replied on 20th February 1957 denying thathe was in arrears. He nevertheless forwarded a money order for Rs. 325and demanded a statement showing the standard rental and thepermitted increases.
Of the issues tried by the learned Judge issues 7 and 10 alone arematerial to this appeal. They read—
“ 9. On what date did the tenancy commence ?
** 10. If the tenancy commenced on 12th March 1952 is the notice toquit dated 30.1.57 requesting the defendant to quit andvacate the premises on or before 1.3.57 valid in law ? ”
The learned Judge has held that the tenancy commenced on 12th March1952 and that the notice is bad in law.
The tenancy is undoubtedly a monthly tenancy which ran from the12th day of one month to the corresponding day of the succeedingmonth.
It is settled law that in the absence of an agreement to the contrarythe notice of termination of a tenancy must run concurrently with aterm of the letting and hiring and must expire at the end of that term.In the instant case the tenancy being one that ran not from the 1st dayof the month but from the 12th day the landlord was not entitled toterminate it except at the and of one of the monthly periods. Thelearned Judge is right in holding that the notice is had in law. Theplaintiff is himself to blame for the predicament in which he findshimself. For if he had given the full facts to his Proctor when heinstructed him to send the notice terminating the defendant’s tenancy itis not likely that the notice would have gone in the terms in which it wassent.
Before I conclude this judgment I think it is necessary to refer to oneother point. Before the issues were determined the following admissionwas recorded : " Tenancy is admitted and the notice to quit is alsoadmitted The cryptic foim of this record created difficulties as thetrial proceeded. The words “ notice to quit is also admitted ” wasunderstood by the plaintiff’s lawyers as being an admission thatthe notice was valid and by the defendant’s lawyers as being anadmission that a notice was given but without any admission of itsvalidity.
On account of this uncertainty as to the meaning of the admissionwhen at the end of the plaintiff’s case defendant’s counsel sought to raiseissue No. 10 it was vehemently opposed; but the learned Judge rightlyaccepted it.
Now the whole purpose of admitting facts in a legal proceeding is toavoid having to prove them. Judges should therefore record them with
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BAS3TAYAKE, C.J.—Zahir v. David Silpa
the utmost core because the admissions take the place of proof. TrialJudges should bear in mind the precise terms of section 58 of theEvidence Ordinance -which reads—
"Wo fact need be proved in any proceeding which the partiesthereto or their agents agiee to admit at the hearing, or which, beforethe hearing, they agree to admit by any writing under their hands, orwhich by any rule of pleading in force at the time they are deemed tohave admitted by their pleadings :
“ Provided that the court may, in its discretion, require the factsadmitted to be proved otherwise than by such admissions."
The judicious and careful use of the above provisions will go a long wayto shorten civil trials.
The appeal is dismissed with costs.
Appeal dismissed.