Eastern Hardware Stores V. Fernando

1956 Present: H. N. G. Fernando, J., and Sinnetamby, J.

EASTERN HARDWARE STORES, Appellant, and
J. S. FERNANDO, Respondent

S. C. 559-D. C. Colombo, 34,849/M

Landlord and tenant-Notice to quit-Waiver-Acceptance of rent " without prejudice "-Effect on pending suit-Rent Restriction Act, s. 13 (1) (a).

Compromise of suit-Mode of proving it-Civil Procedure Code, s. 408. Evidence-Estoppel-Principles applicable.

Acceptance of rent for a period subsequent to notice to quit does not revive a tenancy if the money is taken by the landlord without prejudice to a pending action instituted by him to eject the tenant.

Once an action has been instituted, the Court will not take cognizance of a compromise of it unless it is proved by way of an application made under section 408 of the Civil Procedure Code ; it cannot be proved by way of issues framed at the hearing of the action.

In order to create a valid estoppel there must be not only action by one party on the faith of the declaration or act of the other party but also such action must be to his detriment. Performance, therefore, of what is a legal obligation cannot create an estoppel. Further, there must be a direct connection between the action taken by the party prejudiced and the false impression created by the representation (or conduct) of the other party.

APPEAL from a judgment of the District Court, Colombo.

V. Thillainathan, for the plaintiff-appellant.

Ananda Karunatilleke, for the defendant-respondent.

Cur. adv. vult.

November 23, 1956. SINNETAMBY, J.-

The facts of this case briefly are as follows :

Plaintiff instituted this action on 19/3/55 to eject the defendant from premises bearing No. 554, Skinners Road South. The premises in question are subject to the provisions of the Rent Restriction Act and in order to dispense with the authorisation of the Rent Restriction Board the plaintiff pleaded that the defendant had been in arrears of rent for over a month after the same had become due within the meaning of section 13 (1) (a) of the Act. The plaintiff averred in his plaint that rents were due from 1/1/54. By letter dated 20/10/54, P6, the plaintiff through his proctor gave the defendant notice to quit and deliver possession on 30/11/54. With the plaint the plaintiff also asked for an interim injunction restraining the defendant from removing the mach inery, fittings, equipment, etc., in the premises. This application for a interim injunction was perhaps made by plaintiff in order that he may effectively exercise his landlord's lien. Along with the summons that ssued on the defendant there was also served a notice requiring the defer dant to show cause why an injunction should not be issued and, pending hearing of the application, enjoining him from disposing of machinery, fittings, equipment, etc. The evidence is that on service

of summons and notice of interim injunction the defendant hurried to the landlord and paid him a sum of Rs. 778-82 on account of rent and damages up to February, 1955, and a further sum of Rs. 221 o 18 being Counsel fees, stamp charges and proctor's fees. The plaintiff's proctor received that sum without prejudice to the case and issued to the defendant receipt D2 in which it was so expressly stated, viz. that the money was accepted without prejudice to the case. A similar receipt D1 on the same terms was issued in respect of fees and stamp charges.

Several issues were framed at the trial based mainly on questions of law. The facts stated above were not disputed. The defendant, however, contended that plaintiff's action must fail chiefly on two grounds : first because there was a waiver of the notice by the acceptance of rent on document D2 for a period subsequent to the notice ; and secondly because the plaintiff expressly undertook to withdraw the action when the amounts referred to in D1 and D2 were paid. There was also a plea of estoppel on whi

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