005-SLLR-SLLR-1997-2-THALWATTE-v.-SOMASUNDARAM.pdf
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Thalwatte v. Somasundaram
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THALWATTE
V.
SOMASUNDARAM
SUPREME COURT.
G. P. S. DE SILVA. C.J.,
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. APPEAL 57/93.
A. NO. 845/85 (F).
C. MT. LAVINIA NO. 1156/RE.
MARCH 31, JULY 14, NOVEMBER 2, 1995.
JANUARY 23 AND 30 AND FEBRUARY 1, 1996.
Rent Act – Action tor ejectment – Arrears of Rent – Payment of arrears beforesummons returnable date – Rent Act, section 22(3)(c) – Appropriation ofpayments – Civil Procedure Code, section 150(2).
Held:
The appropriation of payments of rent as against arrears turns upon theintention of the debtor, either express or implied. Applying this principle, thedefendant was not in arrears of rent as at the summons returnable date, havingregard to the terms of section 22(3) (c) of the Rent Act.
The question of appropriation of payments by way of rent did not arise for thereason that the case was not presented before the District Court on that basis. Aparty cannot be permitted to present in appeal a case materially different from thecase presented before the trial court.
Cases referred to:
Kurukulasuriya v. Ranmenike -[1990] 1 Sri L.R. 331.
Setha v. Weerakoon 49 N.L.R. 225, 228, 229.
APPEAL from judgment of the Court of Appeal.
A. K. Premadasa, PC. with T. B. Dillimunifor plaintiff-appellant
P. A. D. Samarasekera, P.C. with S. Mahenthiran for defendant-respondent.
Cur. adv. vult.
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February 12, 1996.
G. P. S. DE SILVA, C.J.
The plaintiff, as landlord, instituted these proceedings on 5.6.80seeking, inter alia, the ejectment of his tenant (the defendant) fromthe premises in suit. The ground of ejectment was arrears of rent(section 22(2) (a) of the Rent Act). The premises were residentialpremises.
The monthly rental was Rs. 290/64. By letter dated 24.4.79 theplaintiff gave the defendant three months notice of termination oftenancy. The tenancy terminated on 31.7.79. The summonsreturnable date was 8.12.80.
At the hearing before us, it was common ground that the period forwhich rent was due from the defendant to the plaintiff was from1.12.76 to 31.3.79. It was for a period of 28 months and the arrears ofrent amounted to Rs. 8137/92. Furthermore, it was not disputed thatthe defendant had paid the plaintiff as rent a sum of Rs. 10,744/50before the summons returnable date (8.12.80). The defendant wastherefore not in arrears of rent having regard to the terms of section22(3) (c) of the Rent Act and the Court of Appeal reversed thejudgment of the District Court and dismissed the plaintiff's action. Theplaintiff has appealed against the judgment of the Court of Appeal.
At the hearing before us the principal submission ofMr. Premadasa, counsel for the plaintiff-appellant, was founded onthe decision of this court in Kurukulasuriya v. Ranmenika{'Mr. Premadasa pointed out that admittedly the defendant had paid norent during the relevant period, namely, 1.12.76 to 31.3.79. It wasafter 31.3.79 that the defendant commenced to pay the arrears ofrent, and what is more in each of the documents P4, P5, P6, P7 andP8 the defendant had specifically stated the month or months forwhich payment was being made. Mr. Premadasa repeatedly stressedthe fact that in each of the aforesaid documents the defendant hadspecified the month or months for which payment was being made.And relying on the judgment in Kurukulasuriya’s case (supra)
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Thalwatte v. Somasundaram (G. P. S. de Silva, C.J.)
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Mr. Premadasa argued that those payments cannot be reckoned forany period other than the period specified in the documents. If thissubmission is accepted, the result would be that the defendant is inarrears of rent and the plaintiff must succeed in this appeal.
However, on a consideration of the relevant facts, this submissiondoes not commend itself to me. The facts in the appeal before us donot show that the defendant actually intended to make payments forspecified periods. The period specified in the documents P4, P5, P6,P7 and P8 (referred to above) was by reason of a mistake initiallymade by the defendant when he made the first payment of P3 dated24.7.79. What happened was that by P3 the defendant sent theplaintiff a sum of Rs. 5510/- as arrears of rent stating that it was for aperiod of 19 months, the period set out being 1.12.76 to 30.6.79.This was obviously a mistake for in truth the period 1.12.76 to 30.6.79covered 29 months (and not 19 months as stated in P3). Thesubsequent payments on P4, P5, P6, P7, and P8 were on the wrongassumption that he had by P3 paid rent up to the end of June 1979. Itwas by reason of that mistake that the very next payment P4mentions the months of July, August and September 1979. A scrutinyof the documents therefore clearly establishes that the monthsspecified in the documents were by reason of a mistake.
Citing a passage from Nathan, Common Law of South Africa, 2ndEdn. Vol. II, page 659. Bandaranayake, J. states in Kurukulasuriya'scase (supra) at pages 338 and 339:- “the whole doctrine of theRoman Dutch Law as to appropriation of payments turns upon theintention of the debtor, either expressed, implied or presumed." Sincethe facts in the appeal before us clearly show that there was no suchintention on the part of the defendant, Kurukulasuriya's case has noapplication.
Besides, the question of appropriation of payments by way of rentdoes not arise in the present case for the reason that the case wasnot presented before the District Court on that basis. Neither thepleadings nor the issues nor even the written submissions reflect thequestion of appropriation of payments. A new contention of this kind
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cannot be raised for the first time in appeal since it involvesquestions of mixed fact and law – vide the judgment of Dias J. inSetha v. Weerakoon(2). In this connection, it is well to bear in mind theprovisions contained in Explanation 2 to section 150 of the CivilProcedure Code. A fortiori, a party cannot be permitted to present inappeal a case materially different from the case presented before thetrial court.
Finally, in regard to Mr. Premadasa's reliance on Kurukulasuriya'scase (supra) (which was decided five years after the judgment of theDistrict Court) the Court of Appeal correctly and relevantly statedthus:- “It was not the respondent's case (i.e. the plaintiff's case) thatthe ruling regarding appropriation should apply and the trial in theDistrict Court was on the basis of overall arrears and the overallpicture is that the appellant was not in arrears of rent." (Theemphasis is mine).
For these reasons the appeal fails and is dismissed with costsfixed at Rs. 750/-.
KULATUNGA, J. – I agree.
RAMANATHAN, J. – I agree.
Appeal dismissed.