1964 Present: Basnayake, C.J., Abeyesundere, J.,
and Sirimane, J.

V. C. MAMMOO and 2 others, Appellants, and
M. P. K. MENON, Respondent

S. C. 65/61- C. R. Colombo, 76475

Landlord and tenant-Monthly tenancy-Action for recovery of arrears of rent only- Subsequent action for ejectment-Maintainability-Notice to quit-Effect of subsequent waiver, tacit or otherwise-Res judicata-Civil Procedure Code, ss. 33, 34, 207.

     (i) A landlord who, before the notice to quit sent by him to his monthly tenant has taken effect, sues the tenant for recovery of arrears of rent only, but not for ejectment, is entitled to bring a separate action in ejectment after the same notice to quit has taken effect.

    Plaintiffs had let certain premises to the defendant on a monthly tenancy. On 2nd April 1960 notice of termination of the tenancy was given requiring the defendant to deliver possession of the house by 31st May 1960. Before the expiry of the notice, however, namely on 26th May 1960, action No. 50064 was instituted in the District Court for recovery of all arrears of rent due up to that date. Consent decree was entered in that action on 2nd February 1961. After the notice to quit of 2nd April 1960 had taken effect, the present action was instituted on 2nd June 1960 for the ejectment of the defendant and for damages per mensem commencing from 1st June 1960.

   Held, that the decree in action No. 50064 could not operate as res judicata, in the present action.

         Ebhramjee v. Simon Singho (62 N. L. R. 261) considered.

          (ii) After notice of termination of a monthly tenancy, an unqualified acceptance of rent amounts, in the absence of other facts which indicate the contrary, to a tacit renewal of the contract of tenancy. After such a tacit renewal, the landlord is not entitled to go back on it and sue for ejectment as if the notice of termination is in force. But the renewal, tacit or otherwise, does not deprive the landlord of the right to sue for the recovery of arrears of rent.

APPEAL from a judgment of the Court of Requests, Colombo. This appeal was referred under section 48A of the Courts Ordinance to a Bench of three Judges.

              R. Ranganathan, with M. T. M. Sivardeen, for Plaintiffs-Appellants.

             H. W. Jayewardene, Q.C., with D. S. Wijewardene, M. S. M. Nazeem and M. Sivanathan, for Defendant-Respondent.

June 3,1964. BASNAYAKE, C.J.-

This is an action by the plaintiffs carrying on business under the business name of P. B. Umbichy against the defendant who was employed as a technician at their Mills for his ejectment from premises No. 221

Baseline Road, Colombo, and for damages at the rate of Rs. 58 12 per mensem commencing from 1st June 1960 till the defendant and all persons holding under him are ejected from those premises and peaceful possession thereof is restored to the plaintiffs. The defendant while admitting that he took the premises in question from the plaintiffs on a monthly tenancy denied that the rental was payable on the 10th day of each month. He denied that he had failed and neglected to pay the rents due after 31st March 1958 and stated that the question of rental had been settled in D.C. Colombo Cases Nos. 47445 and 50064. When issues were framed at the trial, the following issue was suggested by counsel for the defendant, although there was no plea of res judicata in the answer :-

" 5. Do the judgments and decree in D.C. Colombo Nos. 47445 and 50064/M operate as res judicata ? "

The issue was not in regard to a matter that arose on the pleadings and should not have been adopted by the Commissioner. At the trial the plaintiffs took up the position that the defendant paid monthly rentals up to 31st March 1958 and thereafter defaulted, and that on 16th June 1959 notice of termination of tenancy on 31st July 1959 was given to the defendant by the plaintiffs. On 8th July 1959, however, before the