1928 Present: Dalton J.

DE SILVA et al v. PERERA.

26-C. R. Colombo, 37,614.

Landlord and tenant-Increase of rent-Tenant declines to comply-Claim by landlord.

Where a landlord gave notice to his tenant increasing the rent and the tenant declined to pay the proposed increase of rent,-

Held, that the landlord was not entitled to claim the enhanced rent, unless the original contract provided for such a variation of its terms.

APPEAL from a judgment of the Commissioner of Requests, Colombo.

Thiagalingam (with R. S. S. Goonewardene), for defendant, appellant.

Garvin, for plaintiffs, respondent.

March 28, 1928. DALTON J.-

The defendant (appellant) is a monthly tenant of premises described as 12B, Gas Works street, Colombo. The plaintiffs are co-owners of an undivided half share in these premises. The total monthly rental is Rs. 60, half of which, by arrangement, has been paid by the tenant to the plaintiffs, and the remaining half to the other co-owners. On April 27, 1927, plaintiffs wrote the following letter to the defendant increasing their share of the rent from Rs. 30 to Rs. 42.50: ?

Colombo, April 27, 1927.

W. William Perera,
No. 12B, Gag Works Street,
Pettah.

Sir,

Under instructions from Messrs. W. A. de Alwis, P. E. de Silva, and W. D. S. Peiris of Mutwal, I write to give you notice to pay my clients rent at the enhanced rate of Rs. 42.50 per month for their half share of rent of house No. 12B, Gas Works Street, from June 1, 1927, and Rs. 2.50 being fee for this letter of demand.

Yours faithfully,
(Sgd.) A. C. M. A. Cader.

The defendant declined to comply with the request. Nothing further appears to have been done thereafter by either party until July 15, when plaintiffs launched these proceedings to recover the sum of Rs. 42.50 rent alleged to be due for the month of June, in terms of the letter set out above. The defendant, amongst other things, pleaded that he had effected various improvements to the value of Rs. 550 under an agreement between the parties not to raise the rent for five years, and stated he was willing to pay the

enhanced rate if plaintiffs paid the sum of Rs. 275 being half share of the value of the improvements. That agreement was not, however, reduced to writing. He further offered, I understand, to pay the sum of Rs. 30 but this was refused.

It is not necessary further for me to deal with the arguments arising out of the plea of misjoinder of parties and causes of action. The only issue that I need deal with on this appeal is No. 2 which is conclusive of the matter, whether the defendant is liable to pay plaintiffs at the enhanced rate. On the basis that the amount claimed appears to be reasonable the learned Commissioner has answered it in favour of the plaintiffs. I am unable to agree that his decision is correct.

The relations between the parties are governed by the agreement between them. The tenant agrees to pay and the plaintiffs agree to accept a certain rent. The latter have no more right to enhance it than the former has to reduce it. This proposition has been adequately set out by Wille in his Landlord and Tenant in south Africa at page 55. The rent may be enhanced or reduced by the same method by which the original rent was fixed, namely, by mutual agreement between the parties. If the original contract provides for such variation, then such variation may be made in terms of the contract. In the same way each party, under the terms of the contract, may terminate the contract by legal notice to do so. There is no such notice here, what has been done being an attempt by one party to vary the terms of the contract. Defendant refused to agree to that variation; thereupon this action is brought to enforce it. It is urged that the judgment of Pereira J., in Abdul Caffor v. Mohamed 1 [16 N. L. R. 383,] is an authority which supports the action of the plaintiffs. :

All the facts are not set out in that judgment, b