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SILVA et al. v. DASSANAYAKE
NLR3V248
SILVA et al. v. DASSANAYAKE.
D. C, Kalutara, 1,757.
Landlord and tenant-Non-payment of rent on due date-Right of landlord, to re-enter-Right of tenant to restoration of possession-Trial of case without oral evidence-Decision on pleadings.
Bonser, C.J.-According to the Roman-Dutch Law it is not contrary to public policy for A to contract with B that, if A does not pay rent to B duly for possession of his house, the lease should be determined.
But for non-payment of rent the lessor has no right to re-enter without an order of Court. If the lessor re-enters, the lessee is entitled to be restored to possession and to recover damages for unlawful dispossession.
Withers, J.--If a tenant desires to keep his premises, he must observe his obligations. If he fails to pay rent as and when he bargained to do so, and has consented to let the landlord resume possession, ho cannot ask the Court to prevent the landlord from holding possession.
When a landlord comes to court to exact the payment of rent with interest and to demand the expulsion of the tenant as well, in terms of a stipulation to that effect in the contract, I am not sure that he would have a decree of re-entry as a matter of course.
When the pleadings cover all the points in dispute, there is no harm in leaving the case for the Court's decision on the pleadings.
THE defendant, being owner of a garden, leased it to the plaintiff by an instrument dated August 27, 1895, for a period of eight years and six months for the sum of Rs. 1,520, on the footing that no rent was to be charged for the first six months in consideration of plaintiff improving the first plantation; that the rent for the first four years out of the remaining eight years was to be at the rate of Rs. 180 for a year, and the other four years at the rate of Rs. 200 for a year. The plaintiff paid the first year's rent on the execution of the lease, and it was stipulated that the second year's rent should be paid on the 26th November, 1896, and the rent for the succeeding six years before the 26th day of November of each year.
The plaintiff failed to pay the second years rent due on the 26th November, 1890, and on the 20th December, 1896, the defendant resumed possession of the garden.
On the 13th February the plaintiff commenced this action claiming to be reinstated in possession of the garden, and he brought into Court the rent due on the 26th November, 1896, with legal interest up to the date of the action, and he claimed Rs. 500 damages for wrongful dispossession.
He alleged that the non-payment of the rent due on the 26th November, 1896, was due to a misunderstanding of the terms of the lease.
On the 20th February, 1897, the defendant in this suit instituted a cross action in the same Court, claiming to have the lease cancelled on the ground of the non-payment of the rent due on the 26th November, 1890.
By consent the two actions were tried together. No evidence was called on either side, but the case was decided on the pleadings and the admissions of counsel.
The District Judge found (1) that the lessor was not entitled to cancellation of the lease; (2) that his re-entry on the land without lawful authority was unlawful; (3) that the respondents failed to fulfil the lease agreement in so far that they did not pay the rent on the day specified: (4) that in consequence of such failure they could claim no benefit under the lease until payment or proved tender of the amount, and that neither party is entitled to damages up to the institution of the action; (5) that the lessor had no ground for refusing to accept the rent when tendered, and has therefore remained in wrongful possession. The District Judge ordered that the lessee be restored to possession, and that the lessor pay damages at the rate of Rs. 25 a month from the date of the commencement of his action until restoration to possession, together with the costs of bo
