008-NLR-NLR-V-67-CASSIM-HADJIAR-Appellant-and-UMAMLEVVE-and-another-Respondents.pdf
• (1899) 2 Q. B. D. 636.
Present: L. B. de Silva, J., and Abeyesundere, J.CASSIM HADJIAR, Appellant, and UMAMLEVVE and another,
Respondents
8. C. 34111961—D. G. Batticaloa, 1595/L
Civil Procedure Code-Section 84—Date when decree nisi becomes absolute—Operationof law.
Where a decree nisi passed in terms of section 84 of the Civil Procedure Codewas made absolute by the Court about eleven months after the expiration of14 days—
Held, that, by operation of law, the decree nisi became absolute at theexpiration of 14 days.
Bent Restriction Act—Notice to quit given when tenant is not in arrears of rent—Action in ejectment instituted subsequently on ground of arrears of rent—Validityof the notice to quit—Transfer of rented premises—Transferee not liable inrespect of rents paid in advance to the transferor.
Where, at the time when notice to quit rent-controlled premises is given tothe tenant, the tenant is not in arrears of rent, the landlord may neverthelessavail himself of the notice to quit if, at the time of institution of action subse-quently, the tenant is in arrear of rent for one month after it has become due.
Where a landlord of rented premises transfers the premises to another andthe latter sues the tenant thereafter in ejectment, the tenant is not entitledto set off as against the transferee any rent that had been paid in advanceto the transferor.
Appeal from a judgment of the District Court, Batticaloa.
Ranganathan for Plaintiff-Appellant.
S. Sharvananda, for Defendants-Respondents.
October 9, 1963. L. B. de Silva, J.—
In this case the defendants were i tatutory monthly tenants underone Alim Had jiar. Alim Hadjiar by deed No. 315 dated 1.8.1959 donatedhis life interest to the plaintiff. Thereafter, on 6.8.1959 the plaintiffsent the notice P2 to the defendants informing them of the executionof the deed of gift in his favour by the defendants’ landlord Alim Hadjiar,and requesting the defendants to quit and deliver possession of thepremises occupied by the defendants as such tenants to him on orbefo.e 1.10.1959.
The defendants by their letter P3 of 22.8.1959 accepted the positionthat the defendants were in occupation of the premises in question, butalleged that the premises did not belong to the plaintiff in view of thedecree in D. C. Batticaloa, 1789.
The legal position in this case is that the original landlord has trans-ferred the premises in question to the plaintiff, and the plaintiff hasaocepted the said transfer with tenants in possession and he has informedthe tenants of the fact of the transfer and had given them a month’snotice to quit. He has thereby implicitly accepted the position thathe was accepting the premises with the defendants in possession astenants and he was terminating the tenancy by giving notice.
The defendants, while denying the rights of the plaintiff, have refusedto accept the plaintiff as their new landlord. The defendants are entitledto take up this position and refuse to acknowledge the transferee oftheir landlord as their own landlord, but in such an event the defendantsare not entitled to claim any rights of tenancy from the plaintiff in thisaction, or even to claim the rights of a statutory tenant as against theplaintiff. In this case the defendants took up the position that thedeoree in D. C. Batticaloa, 1789 (Miscellaneous) was a bar to plaintiff’sclaim. The plaint, answer, decree nisi and decree absolute in that casehave been produced marked Dl, Dla and Dlb. By the plaint Dl inthat case Alim Hadjiar sued the defendants on 1.3.1957 for rent andejectment. By their answer the defendants acoepted the position thatthey were tenants of the plaintiff, alleged payment of all rents due, andpayment of further rent in advance and asked for dismissal of the action.
The plaintiff failed to appear in Court and decree nisi was entereddismissing his action on 5.11.1958. As the plaintiff took no steps tohave this decree nisi vacated, by operation of law under Section 84 ofthe Civil Procedure Code the decree nisi became absolute in fourteendays from 5.11.1958, but, in fact, the decree absolute had been enteredby the Judge only on 20.10.1959.
The whole basis of the defence is that the decree absolute becameeffective only on 20.10.1959, being the day on which it was in fact enteredand signed by the Judge. We are, however, of the view that by operationof law under Section 84 of the Civil Procedure Code the decree nisi becameabsolute after fourteen days of the 5th of November, 1958. It is concededby Counsel for the respondent in this case that if we take this view thepoint of law urged on behalf of the defendants cannot be sustained.
The learned District Judge held that at the time the notice to quit wasgiven the defendants were not in arrears of rent as it had been issued afew days after the plaintiff became the owner of the premises, and there-fore held that the plaintiff was not entitled to give notice to quit as thedefendants were notin arrears of rent at that stage. There is no pro isionunder the common law that a landlord cannot terminate a monthlytenancy by notice if the tenants were not in arrears of rent, nor is thereany provision in the Rent Restriction Act which prevents a landlordfrom terminating a tenancy by notice on that ground The only provisionin the Rent Restriction Act applicable to this case was that a landlordis not entitled to sue the defendants in ejectment unless the defendantswere in arrears of rent for a period of one month after^the rent becamedue before the action was filed. In this case the defendants have paidno rent at all to the plaintiff and they were in arrears of rent for a periodof over one month after the rent became due when the plaintiff filedthis action. The defendants were thus not entitled to the protection ofthe Rent Restriction Act, even if they are considered to be statutorytenants of the plaintiff. The defendants allege that they had paid rentin advance to the plaintiff’s predecessor in title, but under our law thedefendants are not entitled to set off any such over-jayment of rentas against the present plaintiff. If they had overpaid such rents toAlim Hadjiar they will have a cause of action against him for recovery ofsuch overpaid rent.
We, therefore, hold that the plaintiff is entitled to judgment as prayedfor with costs. The judgment and decree entered by the learnedDistrict Judge are theretore set aside and we direct that judgment beentered for plaintiff as prayed for with costs. The plaintiff is entitledto the costs of this appeal.
Abbybsitndehb, J.—I agree.
Appeal allowed.