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SANOON v. THEYVANDERARAJAH
NLR65V574
1963 Present :
Sansoni, J., and H. N. G. Fernando, J.
A. L. M. SANOON, Appellant, and K. V. K. THEYVANDERA-RAJAH, Respondent
S. C. 433-D. C. Colombo, 766/Z
Lease-Lessee in arrears of rent-Power of Court to grant equitable relief against
forfeiture.
Where a lessee is in arrears of rent the Courts in Ceylon have jurisdiction to
grant him equitable relief against forfeiture if he pays up the arrears.
APPEAL
from a judgment of the District Court, Colombo.
H. V. Perera, Q. C., with H. D. Tambiah, C. G. Weeramantry and N. S. A.
Gunatilleke, for the Plaintiff-Appellant.
C. Ranganathan, with S. Sharvananda and Miss Suriya Wickremasinghe, for the
Defendant-Respondent.
Cur. adv. vult.
November 14, 1963. H. N. G.
FERNANDO, J.-
The Defendant in this action has since 1948 been in occupation as sub-tenant and
thereafter as tenant of certain business premises in Colombo. The property was
formerly owned in half shares by two persons, Junaid and Mrs. Kuthdoos. In July
1956 Junaid transferred his half share to the Plaintiff and requested the
Defendant by letter to pay the rent to the Plaintiff. On September 26th 1957
Mrs. Kuthdoos sold her half share to the Plaintiff and wrote the letter P6 (a)
of the same date to the Defendant. In this letter she stated that the Defendant
was in arrears of rent for the months of July, August and September 1957 and
requested the Defendant to settle the arrears with the Plaintiff and to pay the
future rents to him. This letter was transmitted with a covering letter from the
Plaintiff's Proctor also dated 26th September 1957 requesting payment to the
Plaintiff of the unpaid and future rents. The proctor added that the Defendant
was in arrears of rent to the Plaintiff since July 1956, referring presumably to
the half share of rent which had become payable to the Plaintiff by reason of
the earlier transfer of July 1956. This letter was followed immediately by the
Proctor's letter of 27th September 1957 giving the Defendant notice to quit and
surrender the premises on the 31st October 1957.
On the 1st of November 1957 the defendant's proctor wrote to the plaintiff's
proctor on behalf of the defendant's wife, stating that the plaintiff was well
aware that defendant had been a lunatic for some time and stating also that he
had been adjudged of unsound mind on the 23rd September 1957. Subsequently on
8th November defendant's proctor sent a cheque for Rs. 450 which was accepted
without prejudice.
The learned District Judge held
on the evidence that the defendant had been in arrears of rent from January to
September 1957 in respect of one half share and from July to September 1957 in
respect of the other half share. He held also that the payment of Rs. 450 made
in November 1957 was more than sufficient to cover the amount in arrears. He
dismissed the plaintiff's action on the ground that the Court has jurisdiction
to grant equitable relief against forfeiture if in fact a tenant does pay up the
rent in arrears. The only question for consideration in the appeal is whether
this jurisdiction exists ; if it does there is no doubt that on the proved facts
the defendant is entitled to that relief. The earliest reported case is referred
to in Rajaratnam's Digest and in a judgment of this Court in 2 Supreme Court
Reports at page 35: (Sandford v. Peter). Withers J. states in the judgment that
in the 1875 case reported in Bevan and Siebel's Reports Cayley C. J. and Dias J.
affirmed a judgment which " granted relief to a lessee against forfeiture for
non-payment of rent ". Rajaratnam's note is to the effect that the tenant was in
equity entitled to possess the land on paying the arrears of rent.
In Sandford v. Peter, Lawrie A. C. J. acted upon the principle of English law
that " In equity the construction put on a clause of forfeiture of a lease on
non-payment of rent is that it is a mere security for the payment of rent, and
that as th
