1956 Present: T. S. Fernando, J.

K. N. MEERA, Appellant, and C. D. P. W. JAYA
WARDENE, Respondent

S. C. 243-C. R. Colombo, 54,839

Landlord and tenant-Advance rent received by landlord-Right of tenant to set off unpaid rent-" Receipt" of -money-Rent Restriction Act, No. 29 of 1948. ss 8,. 13 (1).

Where & landlord accepts from his tenant a sum of money in advance to be accounted as and for rent, the tenant is entitled to set off unpaid rent against the sum so held by the landlord.

David Appuhamy v. Subramaniam (1953) 55 N. L. R. 397, distinguished.

A settlement in account may be equivalent to a receipt of a sum of money,. although no money may pass.

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

C. Ranganatitan, with S. C. Crossette-Thambiah, for the defendant-appellant.

H. W. Jayewardene, Q. C., with D. B. F. Goonetilleke, for the plaintiff-respondent.

Cur. adv. vult

September 25, 1956. T. S. FERNANDO, J.-.

The facts giving rise to this appeal may be stated as follows

The plaintiff and her husband (since deceased) leased to the defendant the premises, the subject of this action, for a period of five years commencing from 1st April 1946 at a monthly rental of Rs. 125, each month's rent to be payable before the 10th day of the month following. On the -day of the execution of the lease the defendant paid to his lessors a sum of Rs. 750 and it was a term of the lease that this sum was "to be taken and accounted as and for the rent of the last six months of the term" of the lease, i.e. 1st October 1950 to 31st March 1951. In spite of this term of the lease the sum of Rs. 750 referred to above was not accounted for as rent for the last six months of the lease, and the defendant paid and the lessors accepted rent for each month during the entire period of the lease so that on 31st March 1951 there remained in the hands of the lessors the sum of Rs. 750 which had been accepted by them to be accounted as rent.

No fresh lease was drawn up after the end of March 1951, but the defendant continued in occupation of the premised paying for each month the same rent of Rs. 125 before the 10th day of the month following. The learned Commissioner of Requests has inferred from the evidence- and this inference is not canvassed by the plaintiff-that there was an understanding between the parties that the sum of Rs. 750 should continue to remain as an advance to be set off against the last six months of occupation of the premises by  the plaintiff. In August 1951 one of the lessors, the husband of the plaintiff, died but the defendant continued to pay to the plaintiff each month's rent as usual until he had paid the rent for April 1954. The sums payable as rental in respect of the months of May, June and July not having been received by the plaintiff, she caused to be sent to the defendant a letter of demand dated 4th August 1954 demanding the payment of rent for May to July 1954 and also requesting the defendant to quit the premises on or before 30th September 1954. The defendant thereupon sent a cheque for Rs. 375 which was accepted without prejudice to any rights of the plaintiff to pursue her legal remedy to obtain the ejectment of the defendant. This action was instituted in October 1954 on the allegation that the defendant was in arrears of rent for May, June and July 1954. The defendant pleaded in his answer that he was not in arrears within the meaning of section 13 (1) of the Rent Restriction Act, No.29 of 1948 as at the time he became the tenant of the plaintiff the latter held in her hands a sum of Rs. 750 as six months' rent in advance, and that out of this sum he was in any event entitled to set off at least a sum of Rs. 375 against rent payable by him. The learned Commissioner held that the defendant was in arrears of rent for the month of May 1954 and that the plaintiff 'was therefore entitled to a decree ordering the ejectment of the de