Suyambulingam Chettiar Et Al V. Pechchi Muttu Chettiar

1952 Present: de Silva J,

SUYAMBULINGAM CHETTIAR, et al, Appellants, and
 PECHCHI MUTTU CHETTIAR, Respondent

S. C. 207-C. R. Colombo, 32,190

Rent Restriction Act, No. 29 of 1948-Section 13 (1) (a)-Rent in arrears-Tender of it before institution of action-Landlord's right to eject tenant.

Where, in a case of monthly tenancy, the tenant is in arrear of rent for one month after it has become due and the tenancy is thereafter terminated by due notice, the landlord's right to eject the tenant tinder section 13 (1) (a) of the Rent Restriction Act cannot be taken away from him by the tenant by tender of the arrears of rent before the institution of legal proceedings.

Fernando v. Samaraweera (1951) 52 N. L. R. 278 referred to.

George v. Richard (1948) 50 N. L. R. 128 not followed.

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

H. W. Tambiah, for the plaintiffs appellants.

C. Chellappah, for the defendant respondent.

Cur. adv. vult.

April 3, 1952. DE SILVA J.-

This is an action for rent and ejectment. The defendant-respondent is the tenant of the plaintiffs-appellants of premises No. 40/53, St. Joseph Street, Grandpass, Colombo, on the footing of a monthly tenancy. The plaintiffs came to court claiming rent and ejectment of the defendant on the ground that the defendant was in arrears of rent for the months of November and December, 1950, and January, 1951.

The learned Commissioner after trial dismissed the plaintiffs' action with costs. The question that comes for decision in this appeal is the right of the plaintiffs to institute, and maintain, this action for rent and ejectment notwithstanding the fact that before the action was filed the defendant tendered all arrears of rent due up to the date of action.

The issues framed and adopted at the trial were :-

(1) Is the defendant in arrears of rent for the months of November and December, 1950, and January, 1951, within the meaning of section 13 (1) (a) of the Act ?

(2) Was due notice to quit given on the 29th January, 1951, to quit at the end of February, 1951 ?

(3) If issues Nos. (1) and (2) are answered in the affirmative, is the plaintiff entitled to a decree in ejectment ?

(4) Did the defendant duly tender the rents for the months in question ?

(5) If so, can he be said to be in arrears of rent ?

The second plaintiff-appellant gave evidence at the trial and produced certain documents. It was averred in the plaint that the agreement between the parties was for the tenant to pay the rent monthly on the first day of the succeeding month for the previous month. The second plaintiff-appellant who gave evidence supported the averment in the plaint regarding the mode of payment of the rent. The defendant led no evidence. The plaintiffs have proved what the agreement was as regards the manner of payment of rent. It was proved at the trial that the defendant was in arrears of rent for the months of November and December, 1950, when on the 29th of January, 1951, the plaintiffs through their proctor gave the defendant notice to quit the premises at the end of February, 1951.

It would appear that on the 5th of February, 1951, the defendant sent the second plaintiff a sum of Rs. 45 o 60, being rent for the months of November and December, 1950, and January, 1951, the rent for each month admittedly being Rs. 15 .20. The second plaintiff on the 6th of February, 1951, received a postal order for Rs. 45.60 which came from Mr. Zaheed. This action was instituted on 6.3.51.

The learned Commissioner has answered the issues thus :-

(1) No.

(2) Yes.

(3) Does not arise.

(4) Yes.

(5) No.

In the result the plaintiffs' action was dismissed.

The Rent Restriction Act undoubtedly places a fetter on the common law right of the landlord to institute an action or proceedings for the ejectment of the tenant to which the Act applies, unless the Board has in writing authorized the

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