012-SLLR-SLLR-1993-2-JAYAKODY-v.-LILIAN-PERERA.pdf
74
Sri Lanka Law Reports
[1993] 2 Sri LR.
JAYAKODY
v.LILIAN PERERA
SUPREME COURT.
G. P. S. DE SILVA, C.J.
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. 57/92
A. NO. 574/83 F
C. MOUNT LAVINIA CASE NO. 635/REMARCH 29, JUNE 01 AND 09, 1993.
Landlord and Tenant – Rent Act – Ejectment for arrears of rent – Tenant's claimfor repairs set off against rent – Payment to court – Sections 13 (1) and 22(3) (c) of the Rent Act – Section 409 of the Civil Procedure Code – Section91 of the Evidence Ordinance.
Plaintiff sued the defendant for ejectment from the premises in dispute on theground of arrears of rent. The defendant claimed that he was not in arrears inthat firstly he had effected repairs to the house on an order of the Rent Boardunder Section 13 (1) of the Rent Act and secondly, in any event, the defendanthad deposited a sum of Rs. 1500 to the credit of the case on the summonsreturnable date and hence the action could not be proceeded with in view ofSection 22 (3) (c) of the Act.
Held :
The existence of a valid order under Section 13 (1) of the Act is thefoundation of the right to set off against rent in respect of the premises, theexpenditure actually incurred for repairs.
On the day of the action there was no valid order for repairs, the orderrelied upon having been set aside by the Board of Review and the SupremeCourt. The cost of repairs effected before the order of the Rent Board was setaside, were effected by the defendant at his peril.
The defendant should produce the order of the Rent Board of which oralevidence cannot be led in view of Section 91 of the Evidence Ordinance.
The tender of money under Section 22 (3) (c) of the Act should be tothe landlord. The deposit of money to the credit of the case does not constitutea valid tender to the landlord within the meaning of that section.
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Cases referred to :
Razik v. Esufally 58 NLR 469.
Medonza v. Oe Silva [1985] 1 Sri LR. 44.
APPEAL from a judgment of the Court of Appeal.
A K. Premadasa, P.C. with L V. P. Wettasinghe for Defendant Appellant.
N. R. M. Daluwatte, P.C. with S. Sinnetamby and E. K. Shanmugalingam forPlaintiff-Respondent.
Cur. adv. vult
June 21, 1993.
G. P. S. DE SILVA, C.J.
The plaintiff instituted this action on 18th September, 1978, in theDistrict Court for the ejectment of the defendant from the premisesin suit, inter alia, on the ground of rent being in arrear for three monthsor more after it has become due as provided for in section 22 (1)
of the Rent Act No. 7 of 1972. It was the case for the plaintiffthat no rent was paid from 1st May, 1976. The plaintiff so statedin her evidence and this was not challenged.
The defendant resisted the claim of the plaintiff for ejectment ona two-fold basis. .Firstly, he pleaded in his answer that on 18th May,1976, the Rent Board of Dehiwala-Mt. Lavinia made order in caseNo. 352/73 authorizing him to effect repairs in a sum of Rs. 1500in the event of the plaintiff failing to effect the repairs ; that he dideffect repairs which cost Rs. 1500 and that thereafter he did not payrent, as he lawfully might, until the said sum of Rs. 1500 'wasliquidated'. Secondly, he pleaded that he deposited to the credit ofthe present case a sum of Rs. 1500 on 17th November, 1978, whichwas the summons returnable date and thus relied on the provisionsof section 22 (3) (c) of the Rent Act as a defence.
After trial, the District Judge entered judgment for the plaintiff;the defendant unsuccessfully appealed to the Court of Appeal. Hehas now preferred an appeal against the judgment of the Court ofAppeal to this court.
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Sri Lanka Law Reports
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The first submission of Mr. Premadasa for the defendant-appellant was that a tenant is in arrear of rent within the meaningof section 22 (1) (a) only when rent is due. In other words, it wasCounsel's contention that the landlord can succeed only upon proofof the tenant's default in the payment of rent; there can be no suchdefault in view of the order of the Rent Board dated 18.05.76 in hisfavour.
I shall deal first with the defence based on the order of the RentBoard. By relying on the order of the Rent Board the defendant isin truth claiming the benefit of section 13 of the Rent Act. The materialprovisions of section 13 read as follows :
"13 (1) Where the board is satisfied, on application made bythe tenant of any premises, or on an inspection of such premisescarried out by it or under its authority, that the landlord –
has without reasonable cause discontinued or withheldany amenities previously provided for the benefit of thetenant; or
has failed to carry out any repairs or redecorationnecessary in the opinion of the Board to maintain thepremises in proper condition,
the Board may make order directing the landlord to provide suchamenities or to carry out such repairs or redecoration as may bespecified in the order ; and it shall be the duty of the landlordto comply with the provisions of such order before such date asmay be specified in that behalf in the order, or within such extendedperiod as may be allowed by the Board on application made bythe landlord.
Where the Board is satisfied that any delay in the provisionof the amenities alleged to have been discontinued or withheldin an application made under sub-section (1) or that any delayin the carrying out of the repairs or redecoration which the landlordis alleged in any such application to have failed to carry out,will cause injury to the occupants of the premises or hazard totheir health or permanent damage to the premises, or Seriouslyinconvenience the occupants, the Board shall, before making the
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final order on such application, make an interim order directingthe landlord to provide such amenities or to carry out such repairsor redecoration without delay, notwithstanding that there may bepending in any court, at the time of such application, any otheraction or proceedings relating to such premises.
The Board shall in any order under sub-section (1) or sub-section (2) directing the landlord to effect any repairs orredecoration authorize the tenant, in the event of the landlord failingto comply with the order, to carry out such repairs or redecorationand to incur for the purpose, expenditure not exceeding suchamount as may be specified in that behalf in the order; and whereany repairs or redecoration are carried out by the tenant inpursuance of the authority so conferred, the tenant shall be entitledto set off against the rent payable in respect of the premisesthe expenditure actually incurred by him for the purpose, or theamount specified in that behalf in the order, whichever is less."
On a reading of the above provisions of law, it is clear that thefoundation of the right to set off against the rent payable in respectof the premises that expenditure actually incurred for repairs is theexistence of a valid order of the Rent Board made in terms of section13 of the Rent Act. But in the present case it is not disputed thatthe order of the Rent Board was set aside by the order of the Boardof Review ; an appeal against the order of the Rent Board has tobe filed "before the expiry of a period of 21 days after the date ofthe receipt of a copy of the order" (s. 40 (4) of the Rent Act). Itis also common ground that an application for a writ of certiorariwas made to the Supreme Court on 28th June, 1978, which set asideboth the order of the Rent Board and the order of the Board ofReview and directed that a fresh inquiry be held. The resulting positionwas that as on the date of action there was no valid order of theRent Board. Mr. Premadasa, however, contended that the fact thatthe order of the Rent Board was quashed is not material for the reasonthat the defendant had already spent Rs. 1500 for repairs on thestrength of the order of the Rent Board. It seems to me that it isnot an answer to contend that prior to 28th June, 1978, the tenanthad already spent Rs. 1500 as cost of repairs, for if in fact he hasdone so prior to the final determination of the validity of the orderof the Rent Board, he has acted at his peril. What is more, thereis no evidence as to the date on which the repairs were carried out
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by the defendant. Moreover, the order of the Rent Board was notproduced, despite the provisions of section 39 (13) of the Rent Actwhich enacts that " Every order made by the Boardshall be
reduced to writing and signed by the Chairman No oral evidenceof the order could have been led in view of section 91 of the EvidenceOrdinance. I accordingly hold that there was no basis upon whichthe defendant could have relied on the purported order of the RentBoard.
Mr. Premadasa's next contention was that in as much as thedefendant has deposited a sum of Rs. 1500 to the credit of the instantcase on the summons returnable date, he was entitled to rely onsection 22 (3) (c) of the Rent Act as a bar to the action for ejectmentbeing proceeded with. The material part of section 22 (3) (c) readsthus :
"The landlord of any premises referred to in sub-section (1)
shall not be entitled to proceed with any action or proceedings forthe ejectment of the tenant of such premises on the ground that therent of such premises has been in arrear for three months ormoreafter it has become due,
if the tenant has, on or before the date fixed insuch summons that is served on him, as the date fin which he shallappear in court in respect of such action or proceedings, tenderedto the landlord all arrears of rent."
The District Judge reached the finding that there was no proofthat the defendant had deposited the sum of Rs. 1500 as arrearsof rent to the credit of the case. This finding is clearly contrary tothe evidence. The defendant in the course of his evidence producedthe relevant receipt as V3. This was not challenged. The Journal EntryNo. 11 shows that the Manager of the Bank had sent a letter toCourt confirming the deposit of the money. Thus the finding of theDistrict Judge cannot be sustained.
The true question that arises for decision is whether the depositof the arrears of rent to the credit of the instant case is a“ tender “ of such arrears to the " landlord “ within the meaning of
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Jayakody v. Lilian Perera (G. P. S. de Silva, C. J.)
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section 22 (3) (c). In Rasak v. Esufally Basnayake C.J. hadoccasion to consider the meaning of tender of rent in the contextof section 13 of the Rent Restriction Act. Said the learned Judge,“ Mere willingness to pay the rent does not discharge the obligation
to pay the rentTender does not mean mere expression
• of readiness to pay. To constitute tender the readiness to pay mustbe accompanied by production of the money that is offered in
satisfaction of the debt. (Harris on Law of Tender, p. 11)
The rent must be actually paid ".
Mr. Daluwatte for the plaintiff-respondent placed strong relianceon the judgment of the Court of Appeal in Medonza v. de Silva(Z|, where the provisions of section 22 (3) (c) of the Rent Act directlyarose for consideration. Tambiah J. (as he then was) having citedthe case of Rasik vs. Esufally (supra) and a passage from Law ofContract by Cheshire and Fifoot, 4th Edn., P. 445 concluded “So, it seems to me to constitute a valid tender of all arrears to thelandlord under section 22 (3) (c), there must be actual production
of the moneyThe tender of the moneymust be made to
the landlord ". This, in my view, is the correct interpretation to beplaced on the words “ tendered to the landlord all arrears ofrent " in section 22 (3) (c). It is to be noted that the same phraseoccurs in section 22 (3) (b) which contemplates a situation prior tothe institution of action. In such a situation the tender of the moneymust of necessity be to the landlord, which is a term defined in section48 of the Rent Act. There is no compelling reason for giving the sameexpression occurring in section 22 (3) (c) a different meaning.
Mr. Premadasa, on the other hand, submitted that the interpretationplaced on section 22 (3) (c) of the Rent Act in Medonza v. de Silva(supra) was incorrect as the Court of Appeal has failed to considersection 409 of the Civil Procedure Code. Section 409 of the CivilProcedure Code reads thus:- “ The defendant in any action broughtto recover a debt or damage may, at any stage of the action, depositin court such sum of money as he considers a satisfaction in fullof the plaintiffs claim ". In my view the provisions contained in section409 of the Civil Procedure Code which speaks of an action " to recovera debt or damage “ have no application to the provisions in section22 (3) (c) of the Rent Act. As rightly submitted by Mr. Daluwatte,where a tenant is in arrears of rent for three months or more withinthe meaning of section 22 (3) (a) of the Rent Act, two distinct legal
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consequences flow. Firstly, the tenant loses the protection of the RentAct and the bar against proceedings for ejectment by the landlordis removed. Secondly, the landlord has a claim against the tenantfor arrears of rent. It is to be noted that section 409 of the CivilProcedure Code speaks of a “ debt “ and of " satisfaction in full ofthe plaintiff's claim “. The deposit of money in court in full of theplaintiff's claim The deposit of money in court in terms of section409 of the Civil Procedure Code has relevance to the money claim,namely the arrears of rent. However, section 409 of the CivilProcedure Code has no bearing whatever on the claim for ejectment.The defendant who was in arrears of rent within the meaning ofsection 22 (1) (a) and has thus lost the protection of the Rent Act,cannot regain the protection which he has lost except by complyingwith the statutory requirements set out in section 22 (3) (c) of theRent Act.
I accordingly hold that the deposit of money to the credit of thecase, does not constitute a tender of arrears of rent to the landlordwithin the meaning of section 22 (3) (c) of the Rent Act.
In the result, the appeal fails and is dismissed with costs. Sincethe immediate ejectment of the defendant from the premises in suitmay cause grave hardship, I direct writ of ejectment not to issue till31st December, 1993.
KULATUNGA, J. – I agree.
RAMANATHAN, J. – I agree.
Appeal dismissed.