PERERA v. THALIFF.

PERERA v. THALIFF.

C. R., Colombo, 27,620.

Lessor and lessee-Relief against forfeiture for breach of stipulations-Non-payment of taxes by lessee-Refusal by Court to cancel lease on that account, inasmuch as lessee had paid up all arrears.

The Court will grant a lessee relief against a provision in the lease giving the lessor a right to claim a cancellation in the event of a breach of stipulation by the lessee, if the breach thereof did not involve a notably grave and damnifying misuse of the property leased.

The nature of the misuse that ought to be punished by expulsion, or condemnation in damages, or even be passed over on account of its insignificance, is entirely a matter that must be left to the discretion of a careful and circumspect Judge.

Where a lessee had committed breach of a stipulation in the lease by failure to pay certain Municipal taxes on the property leased, but when sued by the lessor for a cancellation of the lease for breach of the stipulation aforesaid brought the full amount of the unpaid taxes into Court, and further proved payment of all subsequent taxes until the end of the term of the lease, the Court refused to allow the lessor's claim for a cancellation.

The default was not intentional and obdurate, but only due to careless inadvertence which could be immediately remedied by payment, and has been so remedied.

CERTAIN premises in Gabo's lane, Colombo, were leased to the defendant for two years. During the continuance of the lease the plaintiff purchased the leased premises, and also procured an assignment of the lessor's interest in the said lease. One of the covenants of the lease ran as follows: -'' That the said lessee shall pay all the taxes due on the said premises, and shall at his own cost and expense effect all the repairs of the demised premises during the term of his lease."

The lessee failed to pay the Municipal taxes for the four quarters of 1903, whereupon the lessor paid them.

This being a breach of the afore-mentioned stipulation, the plaintiff brought this action for the cancellation of the contract of lease and for ejectment of the defendant from the premises.

The learned District Judge dismissed his action.

The plaintiff appealed.

The case came up for argument on 23rd September, 1904.

Allan Drieberg, for appellant.

E. W. Jayawardene, for respondent.

[The following cases and authorities were cited by counsel:- Silva v. Dissanayake, 3 N. L. R. 248; Allis v. Sigera, 3 N. L. R.

6; Wijeratne v. Hendrick, 3 N. L. R. 158; Ameresinghe v. Coder, 2 Br. 397; Fonseka v. Fernando, 2 S. C. R. 35; Punchi Appuhami v. Punchi Appuhami, Bam. (1872-1876) 293; Andris v. Rajapakse, 2 Br. 100; Rolfe v. Harris, 2 Price, 206; Hill v. Barclay, Vesey, 68 and 61; Kotze's Van Leeuwen, vol. 11., 175; Grotius' Opinions, 262, 3, 4; Sanden v. Pope, 12, Vesey, 282.]

Cur. adv. vult.

1st December, 1904, MIDDLETON, J.-

This was an action for the cancellation of a contract of lease and for ejectment of the defendant from the premises on the ground that defendant had committed a breach of covenant in not paying the Municipal taxes on the property leased.

The breach was admitted, but it was contended on the strength of the ruling of Bonser, C.J., in 3 N. L. R. 248, that the Court would only order the lease to be cancelled on the ground of " fraud, accident, or mistake," and that in the present case the Municipal taxes had not been paid owing to the mistake of the defendant in not seeing that his sub-lessee, who had covenanted to pay them, did so.

The plaintiff paid the taxes and brought this action and defendant brought the sum of Rs. 30 into Court, and it was alleged and not denied that defendant had subsequently paid the taxes up to the end of the term of the lease. Rolfe v. Harris (2 Price, p. 206) and Hill v. Barclay (Vesey, 58, 61) were relied upon for the plaintiff.

In the former case it was held that the grounds on which the English

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