1959 Present: Basnayake, C.J.

ZAHIR, Appellant, and DAVID SILVA, Respondent

S. C. 202-0. R. Matara, 6379

    Landlord and tenant-Monthly tenancy-Notice to quit-Validity-Evidence-c Admissions-Duty of Court to record them with care-Evidenc6 Ordinance,s.58.

(i) In the absence of an agreement to the contrary, the notice of termination of a monthly tenancy must run concurrently with the term of the letting and hiring and must expire at the end of that term.

The tenancy commenced on 12th March 1952. Notice to quit was given on 30th January 1957 requesting the defendant to vacate the premises on or before 1st March 1957.

Held, that, inasmuch as the tenancy commenced not on the 1st day of the month but on the 12th, the notice was bad.

(ii) In view of the provisions of section 58 of the Evidence Ordinance, Judge should record with the utmost care any admissions made by the parties.

H. W. Jayewardene, Q.C., with G. T. Samerawickreme and N. R. 1 Dalutwatte, for Plaintiff Appellant.

D. S. Jayawickreme, Q.C., with R. D. B. Jayasekera, for Defendant Respondent.

Cur. adv. vult

October 28,1959. BASNAYAKE, C.J.-

The only question for decision on this appeal is whether the defendant's tenancy has been terminated by a valid notice. It is clear from" receipts, PI a to PI j, spread over the period 1952 to 1956, produced the plaintiff that the tenancy was one that commenced on the 12th { of the month. The first of them (P1a) dated 12th March 1952 reads: "Received from Mr. K. H. M. T. David Silva the sum of Rupees Thirty Nine only being house rent for three months due in respect of premises No. 140 at Kotuwegoda for the month commencing from 12th Ma 1952 to 11th June 1952 ", and the last of them (P1j) dated 29th May 1956 reads: "Received from Mr. K. H. M. T. David Silva of Kotuwegoda the sum of Rupees Thirty Nine being house rent due for three month respect of premises No. 140 at Kotuwegoda for the month commencing from 12th August 1954 to 11th November 1954". The plaintiff's own evidence is also to the effect that the tenancy commenced on 12th March 1952. He states: "I say that this defendant came into occupation these premises on 12.3. 52, the amount shown in P1a is the first payment made by him to me when he came into occupation of these premises". The defendant appears to have been a most unsatisfactory tenant who never paid his rent regularly. His rent was always in arrears and paid at irregular intervals. On 31st January 1957 the total amount his arrears was Rs. 325 and on that day the plaintiff's Proctor sent following letter terminating his tenancy :-

"I write this on instructions from your Landlord Mr. M.I.A.M.Zahir of Kotuwegoda, Matara.

"I am instructed by my client to request you to pay forthwith sum of Rupees Three hundred and twenty-five (Rs 325) due as arrears of rental in respect of the premises occupied by you as my clients tenant.

"I am further instructed to request you to leave and quit the premises on or before the first day of March this year (1957).

"If you fail to comply with this legal action will be taken against you."

The defendant's Proctor replied on 20th February 1957 denying that he was in arrears. He nevertheless forwarded a money order for Rs. 325 and demanded a statement showing the standard rental and the permitted increases.

Of the issues tried by the learned Judge issues 7 and 10 alone are material to this appeal. They read-

"9. on what date did the tenancy commence?

10. If the tenancy commenced on 12th March 1952 is the notice to quit dated 30.1.57 requesting the defendant to quit and vacate the premises on or before 1.3.57 valid in law?"

The learned Judge has held that the tenancy commenced on 12th March 1952 and that the notice is bad in law.

The tenancy is undoubtedly a monthly tenancy which ran from the 12th day of one month to the corresponding day of the succeeding month.

It is settled law that in the absence of an a