Amarasekara V. Abeygunawardene

1955 Present: Gratiaen J. and Sansoni J.

D. H. S. AMARASEKARA, Appellant, and
D. S. ABEYGUNAWARDENE, Respondent

S. C. 198-D. C. Colombo, 23,654/M

Prescription-Action instituted in Court of Requests--Claim in reconvention beyond jurisdiction-Transfer to District Court-Date of action in respect of the claim in reconvention-Courts Ordinance (Cap. 6), s. 79-Prescription Ordinance, s. 10.

Rent Restriction Ordinance, No. 60 of 1942-Sections 7 and 14-Premium illegally received by landlord-His right to retain it-Illegal contract.

When the Supreme Court authorises under section 79 of the Courts Ordinance a transfer of proceedings from the Court of Requests to the District Court by-reason of the claim in reconvention being beyond the jurisdiction of the Court of Requests, the action for the recovery of the claim in reconvention in excess of the sum which the Court of Requests has jurisdiction to award does not " commence " within the meaning of the Prescription Ordinance until the transfer of the proceedings to the District Court has been authorised by the Supreme Court; in regard to the issue of prescription, the action must be regarded as having commenced in the Court of Requests and continued in the District Court in respect only of those claims over which the former Court had jurisdiction to grant relief.

Quaere, whether a premium paid by a tenant to his landlord in contravention of the Rent Restriction Ordinance of 1942 and of the later Act of 1948 is recoverable in every case ? Scope of the applicability of the maxim in pari delicto potior est conditio defendentis considered.

APPEAL from a judgment of the District Court, Colombo.

H. V. Perera, Q.C., with E. R. S. R. Coomaraswamy, for the plaintiff appellant.

H. W. Jayewardene, Q.C., with P. Ranasinghe, for the defendant respondent.

Cur. adv. vult.

March 18, 1955. GRATIAEN J.-

The appellant was the landlord, and the respondent the tenant, of a bungalow in Colombo to which the Rent Restriction Ordinance, No. 60 of 1942, applied. The landlord sued the tenant in the Court of Requests on 15th May, 1950, for the ejectment of the tenant who claimed in reconvention the return of certain sums paid by him (a) as rent in excess of the authorised amount, and (b) by way of " premium " as a condition of the grant of the tenancy.

The total amount counter-claimed by the tenant far exceeded the monetary jurisdiction of the Court of Requests. Accordingly, he applied

for and obtained from this Court on 6th October, 1950, an order under section 79 of the Courts Ordinance transferring the entire proceedings to the District Court of Colombo.

Before the trial commenced in the District Court, the tenant had vacated the premises, so that only his claims in reconvention called for adjudication. The landlord admitted liability to refund a sum of Rs. 551.88 received by him in excess of the authorised rent. With regard to the outstanding claim for the return of the premium, the learned Judge held that the landlord had exacted a premium of Rs. 1,800 in breach of section 7 of the Rent Restriction Ordinance, No. 60 of 1942, and entered judgment in favour of the tenant for this amount in addition to the sum of Rs. 551 o 88 admitted to be due.

The landlord has appealed against that part of the decree which orders the repayment of the premium on two grounds :-

(1) that the claim was prescribed ;

(2) that in any event, the principle in pari delicto potior est conditio defendentis precluded the tenant from asking the Court's aid to recover an illegal payment.

As to the former plea, it is common ground that section 10 of the Prescription Ordinance applies, and the learned Judge accepted the evidence that the premium sought to be recovered had been paid on 3rd September, 1947. If, therefore, the action on the claim in reconvention can properly be regarded as having " commenced " when the tenant filed his answer in the Court o

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