Warawita Appuhamy V. Perera

1961 Present: H. N. G. Fernando, J.

J. K. WARAWITA APPUHAMY, Appellant, and
 U. L. P. PERERA, Respondent

S. C. 159/1959-C. R. Colombo, 72222

Landlord and tenant-Acceptance of late payments of rent-Effect on landlord's right to terminate tenancy.

      The written agreement for a month to month tenancy provided that the rent should be payable on or before the tenth of each month. Rent had been paid and accepted from July 1946 for a period up to and including July 1958. The rent for the month of August 1958 had not been paid by 16th October 1958, on which date the landlord issued a notice terminating the tenancy on the ground of non-payment of the August rent.

      At the trial it was proved by the tenant that during the entire period between. January 1957 and August 1958 the landlord accepted a particular month's rent, as a matter of regular practice, when it was tendered to him at some time during the second half of the subsequent month.

      Held, that the landlord was entitled to terminate the tenancy on October 16, 1958, which was sixteen days after the termination of the period during which-he had previously ignored delay.

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

                Colvin R. de Silva, with D. R. P. Goonetilleke, for defendant-appellant.

                H. W. Jayewardene, Q. C., with M. L. de, Silva, for plaintiff-respondent.

Cur. adv. vult.

March 24, 1961. H. N. G. FERNANDO, J.-

      The written agreement for a month to month tenancy in this case provided that the rent should be payable on or before the tenth day of each month. Rent had been paid and accepted from July 1946 for a period upto and including July 1958. But the rent for the month of August 1958 had not been paid to the landlord by 16th October 1958, on which date he issued a notice terminating the tenancy on the ground of non-payment of the August rent. At the trial the tenant-appellant proved by the production of rent receipts for a period between January 1957 and August 1958 that during this entire period the rent due for any month was accepted by the landlord during the second hah0 of the subsequent month. The appellant relied on my

decision in Suppiah v. Kandiah1  [ 1 (1957) 58 N. L. R. 479.]  in support of the proposition that the date on which the rent was due for any month was not the tenth, day of any month but rather a date not earlier than the end of the subsequent month. I do not agree that the decision supports that proposition for in that case unlike in the present one there was no agreement fixing the date on which the rent was to be payable. In any event although I remain of opinion that the tenant in Suppiah v. Kandiah (supra) was entitled to succeed, I think the grounds on which he was so entitled are more correctly set out in my judgment in Jayakody v. Pedris2,[   2 (1959) 60 N. L. R. 422 ]namely that where for a considerable period a landlord has accepted without demand late payments of rent he cannot without first informing the tenant explicitly that future delay will not be excused and that legal rights will be insisted on suddenly take advantage of one late payment in order to sue for ejectment.

Where there is a written agreement specifying the date on which rent must be paid, that date remains the due date for payment unless it is altered by some new distinct agreement. Where on the other hand there is a month to month tenancy without express stipulation as to the date of payment of rent, the last date of each month must be taken to be the due date for the payment of that month's rent. This principle was recognised in the case of Adamjee Lukmanjee & Sons Ltd. v. Ponniah Pillai 3 [  3 (1959) 61 N. L. R. 181. ]decided by my Lord the Chief Justice.

        In the case last mentioned, however, no reference appears to have been made during the argument to my decision in Jayakody v. Pedris (supra) which dealt not so much w

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