1935 Present : Maartensz and Koch JJ.

PUNCHISINGHO v. DE SILVA.

247-D. C. Kurunegala, 17,468.

Landlord and tenant-Leased premises closed by local authority under proclamation-Prohibition order pending structural alterations-Remission of rent-Roman-Dutch law.

A tenant is entitled to claim a remission of rent when the leased premises are closed by order of an Urban District Council under a proclamation issued under the Quarantine and Prevention of Diseases Ordinance.

Where an order was issued prohibiting the occupation of the premises until certain structural alterations were effected and it was not the duty of the tenant to effect such alterations,-

Held, that the tenant was entitled to a remission of rent during the period.

APPEAL from a judgment of the District Judge of Kurunegala.

R. L. Pereira K. C. (with him N. E. Weerasooria), for plaintiff, appellant,

H. V. Perera, for defendant, respondent.

Cur. adv. vult.

October 29, 1935. MAARTENSZ J.-

The plaintiff-appellant sued the defendant for the recovery of a sum of Rs. 720 which he claimed to be due to him in terms of a deed No. 989 dated July 1, 1929, granted by him to the defendant. By this deed the plaintiff transferred to the defendant his interest in indentures of lease No. 10328 dated April 5, 1921, and No. 7437 dated September 10, 1923, executed by Roland de Silva in favour of the plaintiff and defendant.

By indenture No. 10328 Roland de Silva demised to the plaintiff and defendant premises bearing assessment No. 37 in Bazaar Street in the town of Kurunegala for a term of 8 years and 9 months from April 1, 1921, for a sum of Rs. 3,150 which was paid in advance. By indenture No. 7437 the lessor leased the same premises to the plaintiff and defendant for a term of 20 years from January 1, 1930, for a sum of Rs. 3,600 which was paid in advance.

Both indentures provided that the lessor shall effect the necessary repairs during the continuance of the lease.

The plaintiff and defendant were carrying on business in partnership as general merchants at the dates when the identures were executed. The partnership was dissolved by indenture No. 986 dated July 1, 1929. Indenture No. 989 was executed on the same date.

This deed recites the terms of the indenture of lease No. 10328 and No. 7437 and that Punchi Sinno (the plaintiff lessee) had agreed to

convey to Don Hendrick de Silva (the defendant lessee) his leasehold interest in premises No. 37 (now altered to 42) for the unexpired term and continues as follows :-

" Now this indenture witnesseth that the said party of the first part in consideration of the sum of Rs. 40 only being one month's rent in advance well and truly paid to the said party of the first part (the receipt whereof the party of the first part hereby acknowledges) and of the further covenants hereinafter on the part of the party of the second part to be performed doth hereby let, demise, and sublease unto the party of the second part his heirs, &c, the premises hereinafter fully described in the schedule hereto together with the tiled buildings and trees and everything standing thereon.

"To hold the said premises unto the said Lokuge Don Hendrick de Silva and his aforewritten for the term of 20 years and 6 months commencing from the first day of July, 1929.

"Yielding and paying therefor the clear monthly rent of Rs. 40 only by the said party of the second part to the said Hewawedige Punchi Sinno (the party of the first part above referred to) at the end of each and every month ".

This indenture provided that the party of the second part shall effect all repairs .... as covenanted to be done observed and performed to and with the said Roland Thomas Douglas Christopher de Silva in the above recited indenture of lease in respect of the said premises and shall at the expiration of the lease hereby granted deliver up the said premises to the said party of the first part in