1951 Present: Basnayake J.

FERNANDO, Appellant, and SAMARAWEERA, Respondent

S. C. 206-C. R. Colombo, 26,034

Landlord and tenant-Termination of tenancy by notice to quit-Cheques sent thereafter, but returned after institution of action for ejectment-Is new tenancy created ?- " Waiver of notice to quit "-Effect of deposit left by tenant with landlord- Rent Restriction Act, No. 29 of 1948, section 13.

Plaintiff was the owner of certain premises and defendant was his tenant. As the plaintiff required the premises for the purpose of his own business, in May, 1949, he gave notice of termination of the defendant's tenancy at the end of June, 1949. Defendant did not vacate the premises, and notwithstanding the termination of his tenancy continued to send by post each month a cheque for the amount of the rent and also to pay the rates in accordance with previous practice. The plaintiff retained the cheques but did not cash them. Proceedings in ejectment were, however, not instituted till March, 1950. A day after the institution of the action under the Rent Restriction Act the cheques were returned to the defendant by the plaintiff's proctor with the intimation that an action had been filed and that as the defendant's deposit of six months rent with the plaintiff had been appropriated as damages for the period July to December, 1949, the cheques were being returned.

Held, that the retention by the landlord of the cheques sent by post by the tenant in payment of rent for a period subsequent to the determination of the tenancy could not give rise to the inference that the landlord by so doing intended to create a new tenancy. Nor did the appropriation of the deposit affect the position in a case where the tenant after the termination of his contractual tenancy retained his possession of the premises by virtue of the Rent Restriction Act.

Sending of cheques by a tenant does not amount to payment of rent when no receipts are given by the landlord and the cheques are not cashed.

In a case governed by the Rent Restriction Act, once the contractual tenancy is ended by notice, the landlord loses no rights by accepting rent from the statutory tenant whom he may evict by judicial process without any further notice the moment he fails to carry out his statutory obligations or he is able to satisfy the Court that the premises are reasonably required by him. Even in a contractual tenancy a payment of rent after the termination of the tenancy would only operate in favour of the tenant if it could be shown that the parties .'.. intended and agreed that there should be a new tenancy.

APPEAL from a judgment of the Court of requests, Colombo.

C. Thiagalingam, K.C., with S. Canagarayar, for the plaintiff appellant.

N. E. Weerasooria, K.C., with M. I. M. Haniffa and B. S. C. Ratwatte, lor the defendant respondent.

cut. adv. vult.

 March 6, 1951. BASNAYAKE J.-

This is an appeal by the plaintiff-landlord in an action in ejectment. The question that arises for decision is whether the retention by the landlord of cheques sent by post by the tenant in payment of rent for a period subsequent to the determination of the tenancy, can give rise to the inference that the landlord by so doing intended to create a, new tenancy. The learned Commissioner of Requests has held that such an inference can be drawn.

Shortly the facts are as follows: The plaintiff is the owner of premises Nos. 236 (hereinafter referred to as No. 236) and 238, Gas Works Street, and No. 4, Dam Street, and the defendant is his tenant. As the plaintiff required No. 236 for the purposes of his own business, in 1945, he terminated the defendant's tenancy after due notice. The defendant failed to quit the premises on the termination of the tenancy. The plaintiff therefore instituted proceedings in ejectment. In March, 1947, that action was dismissed. Thereafter the defendant continued to remain in the premises