090-NLR-NLR-V-62-H.-D.-PEDRICK-Appellant-and-MRS.-M.-R.-M.-MENDIS-Respondent.pdf
JPedrich v. JAendis
471
1959Present: K. D. de Silva, J.
H. X>. PEBRICK, Appellant, and MRS. M. R. M. MENBIS,
Respondent
S. C. 82—G. R. Colombo, 6626'0
Landlord and tenant—Notice to quit—Position when tenant disclaims tenancy—RentRestriction Act, No. 29 of 1948.
A tenant who disclaims the tenancy is not entitled to a notice to quit.
A PPEAL from a judgment of the Court of Requests, Colombo.
C. S. Barr Kumarakulasinghe, with G. L. L. de Silva, and D. G. W.Wickremasekera, for the defendant-appellant.
W. Jayewardene, Q.G., with D. R. P. Goonetilleke, for the plaintiffrespondent.
Cur. adv. vult.
472
K.. D. D1S SILVA, J.—Pedrick v. Mendia
December 21, 1959. K. D. de Silva, J.—
This is an action for rent and ejectment. The plaintiff averred in theplaint that the defendant took on rent from her premises No. 515, GalleRoad, Mount Lavinia, on a monthly tenancy at a rental of Rs. 37 *50 amonth and sought to eject him on the ground that the rent for themonths of January, February and March 1957 was in arrear. She alsoaverred that on April 29, 1957, she had given notice to the defendant toquit the premises on or before the 31st day of May, 1957.
The defendant filed answer denying that the plaintiff let the premisesto him but that he took the same on rent on or about May 1, 1954, fromone G. H. Dharmadasa on a monthly tenancy at a rental of Rs. 50 amonth.
It is not denied by the plaintiff that originally the defendant took thesepromises on rent from Dharmadasa but she stated that thereafter thelatter by deed P7 of December 4, 1956, leased these premises to her for aperiod of 10 years. Her position is that after the execution of this leasethe defendant attorned to her and paid her rent for December, 1956, buthe failed to pay the rent for January, February and March 1957. Thedefendant admitted the execution of the lease P7. He stated that afterthat lease was executed Dharmadasa instructed him to pay the rent tothe plaintiff and that he did so for the month of December, 1956. Hehowever denied that he became the tenant of the plaintiff. His positionwas that the plaintiff received the rent as the agent of Dharmadasa.
The learned Commissioner of Requests, after trial, held with theplaintiff and entered judgment in her favour. This appeal is againstthat judgment.
At the hearing of the appeal Mr. Harr Kumarakulasinghe, the counselfor the defendant appellant raised two points. Firstly he contended thatthere was no contract of tenancy between his client and the plaintiffand secondly the notice to quit which is produced in the case marked D2is bad in law.
The first point is not a sound one. The defendant’s contention thathe paid the rent to the plaintiff as the agent of Dharmadasa is not borneout by the evidence in the case. After the lease P7 was executed thedefendant wrote the letter PI on January 17, 1957 to the plaintiffenclosing a money order for Rs. 50 being the rent for December statingthat Dharmadasa had informed him that he had leased the premises tothe plaintiff for a period of 10 years and that he had requested him topay the rent to her. Then on January 30, 1957 the defendant addressedthe letter P2 to the plaintiff calling for a receipt for the rent paid forDecember and also informing her that the roof was leaking and that thehouse required repairs and white w’ashing. In that letter he asked her to
KL. D. DE SILVA, J.—Pedrick v. Metulis
473
get the necessary repairs done. No reply was sent to that letter.Therefore the defendant wrote the letter P3 on April 25, 1957, to theplaintiff requesting her again to get the necessary repairs effected. Healso stated in that letter that a sitin' of Es. 275 was necessary to effectthese repairs and enquired from the plaintiff whether she would give himpermission to get the work done. When the plaintiff failed to carry outthe necessary repairs the defendant claimed to have retained the rent dueafter January 1957 for the purpose of effecting those repairs. He statedthat he did so at the request of Dharmadasa who according to him wasthe landlord. Dharmadasa who was called as a witness by the defendantdenied that he gave such instructions to the defendant' and he also saidthat no repairs were, in fact, necessary. On June 5, 1957, the defendantsent a money order for Rs. 187 ‘50 to the plaintiff in payment of the rentin arrear. The plaintiff however refused to accept this payment andreturned the money order to the defendant. There is very clear evidencethat soon after the lease P7 was executed in favour of the plaintiff byDharmadasa the defendant attorned to the plaintiff. The position thatthe defendant took up in this case that he was not a tenant of theplaintiff is quite untenable.
The next point which arises for decision relates to the notice to quitgiven by the plaintiff to the defendant. According to the plaintiff thisnotice wras sent to the defendant by registered post on the 29th April,1957. The document D2 is the notice which the defendant received.His counsel contended that this was not a valid notice for two reasonsnamely Cl) it was not correctly dated and (2) it was received by thedefendant only on the 2nd or 3rd May, 1957. It is true that this noticehas not been correctly dated because neither the month nor the yearappears at the top of it although in the body of the notice itself thedefendant is required to quit on the 31st day of May, 1957. The plaintiffhowever has produced the counterfoil P9 of this notice and the postalreceipt P8. Both these documents bear the date 29.4. 57. This noticewas sent by the plaintiff’s proctor but he was not called as a witness tostate that he posted it on 29.4. 57. The defendant’s evidence that hereceived the notice to quit on 2nd or 3rd May, 1957, stands uncontradicted.Therefore it is reasonable to hold that the plaintiff has failed to provethat the defendant received a clear month’s notice which he was entitledto receive. Hence D2 is not a valid notice. The counsel for thedefendant contended that the plaintiff’s action must fail on that ground.The Rent Restriction Act,No. 29 of 1948, does not proride for giving suchnotice. It is the common law which requires that a monthly tenancyshould be determined by a month’s notice. However the common lawalso provides that a tenant who disclaims the tenancy is not entitled to avalid notice to quit. In Jlluttu Natchia v. Patuma Natchia 1 dealing witha tenant who disclaimed the tenancy Browne, J. stated “ It was un-necessary therefore that the plaintiff, as he did, should have averred orhave sought to prove any notice to quit given by him to the defendant,
1 {1895) 1 N. L. R. 21.
474
A-hamadsulebbai v. Jubariummah
and defendant was not entitled to have the action dismissed because novalid notice was given.” This decision was followed in Sunder a Ammal•v. Jusey Appu x.
I therefore hold that the defendant in this case who denied that he wasthe tenant of the plaintiff was not entitled to a notice to quit. I dismissthe appeal with costs.
Appeal dismissed.