145-NLR-NLR-V-55-D.-T.-ROBERT-Appellant-and-MRS.-P.-RASHAD-Respondent.pdf
GRATIAEiST J.—Robert v. Rashad
517
>)
1954Present: Gratiaen J.
T. R6BERT, Appellant, and MRS. P. RASHAD, Respondent
S. C. 150—G. R. Colombo, 37,045
Rent Restriction Act, No. 29 of 194S—Sub-letting by tenant—Condonation bylandlord— Landlord’s right to claim cancellation of tenancy—Sections 9 and 13.
A tenant wrongfully sub-let a portion of the premises without the landlord’s• prior written consent, but the landlord, although he was aware of that fact,mode no protest of any kind and continued -fo demand, and to accept from thetenant, rent for each subsequent month.
» In an action brought subsequently by the landlord claiming cancellation ofthe tenancy on the ground that the tenant had sub-let the premises in contra-vention of the provisions of Section 9 of the Rent Restriction Act—
Held, that the landlord’s conduct after he became aware of the sub-tenancydisentitled him to have recourse to his statutory remedy under Section 9.When a landlord becomes aware of the contravention of Section 9, he mustforthwith elect whether or not to treat the contract of tenancy as terminated ;if he does not so elect, the contravention is condoned, and the contractualtenancy continues.
.
Wimalasuriya v. Ponnidh (1951) 52 N. L. R. 191, distinguished.
A
XXPPEAL from a judgment of the Court of Requests, Colombo.
H. V. Perera, Q.C., with S. Sharvananda and Joseph St. George, for thedefendant appellant.
M. I. M. Haniffa, with M. H. M. Naina Marikar, for the plaintiffrespondent. >
. Cur. adv. vult.
July 26, 1954. Grattaen J.—
This is an appeal by a monthly tenant from an order for his ejectmentfrom premises to which the Rent Restriction Act, No. 29 of 1948, applies.The basis of the learned Commissioner’s decision was that the tenanthad, in contravention of Section 9 of the Act, sub-let a portion of thepremises, without his landlord’s prior written consent, on 12th September,
The alleged sub-lessee has since vacated the premises, and thetenant is now in sole occupation.
I shall assume for the purposes of my judgment that the tenant hadin fact contravened the provisions of Section 9.
The action for ejectment was instituted by the landlord on 8th February,
It is common ground that he had not given the tenant priornotice of his election to treat the contravention of Section 9 as a breachof the contract of tenancy. The learned Commissioner considered,however, that no such notice was necessary in view of the ruling ofBasnayake J., sitting alone, in Wimalasuriya v. Ponniahx.
(1951) 52 N. L. R. 191.
018
GRATIAJEN J.—Robert v, Rashad
-C.1
Before I examine the judgment of this Court in Wimalasuriya v. Ponniah{supra) it is necessary to refer to one distinguishing feature of the presentcase. According to the landlord’s version, the fact that the tenant hadwrongfully sub-let a portion of the premises was brought to his notionvery shortly after the sub-tenancy commenced. Nevertheless, he made-no protest of any kind, and he continued to demand, and to accept fromthe tenant, rent for each subsequent month including the month ofJanuary, 1952. His letters Dl, 1)2, D3 and D4 to the tenant gave no-indication that he objected to the presence of the sub-tenant on a portionof the premises although he was well aware of it. Nevertheless, hoperemptorily filed this action in February, 1952, basinghis claimfiwreject-ment solely on the contravention of Section 9 (1) in September, lt951.
In my opinion his subsequent conduct since he became aware of the sub-tenancy disentitles him to have recourse to his statutory remedy underSection 9 (1).
The Rent Restriction Act passed into law on 20th December, 1948.After that date, the effect of Section 9 (1) and 9 (2) was to read intoevery contract of tenancy in respect of protected premises {a) a prohibitionagainst sub-letting without the landlord’s prior written consent (6) astatutory provision (equivalent to an express contractual stipulation)entitling the landlord, in the event of a contravention of Section 9 (1),to claim a cancellation of the tenancy and a consequential decree forejectment notwithstanding the provisions of Section 13 which wouldhave otherwise now been applicable.
I agree with the judgment in Wimalasuriya’s case in so far as it rejectsthe argument that a tenant who has contravened Section 9 is neverthelessentitled to resist a decree for ejectment on that ground unlesss he hasalso received “ reasonable notice (terminating the tenancy) accordingto the contract But I do not accept the further proposition(if that was intended to be suggested by Basnayake J.—-I do notsay that it was) that a contravention of Section 9 ipso jure bringsthe contract of tenancy to an end. The correct view is that, when thelandlord becomes aware of the contravention, he must forthwith electwhether or not to treat the contract as terminated. • Jf he elects to •enforce this statutory remedy, the tenant’s statutory protection underSection 13 is automatically forfeited. But if he does not so elect, thecontravention is condoned, and the contractual tenancy continues.
“ The conduct of the landlord in accepting rent (for subsequent periods)with clear knowledge of the sub-letting amounts to a waiver of hisstatutory right (under Section 9) and must inevitably amount also toa ‘ consent ’ to the sub-letting in the sense of being a negation thereto ”—per Evershed M. R. in Hyde v. Pimley x. In other words, he “ has byimplication so acted as to bar himself from alleging that he has notconsented ”—per Lord Watson in Elphinstone v. Mortjcland Iron <SaGoal Go,a. This is precisely what has occurred to the present case. Itherefore allow the appeal and dismiss the plaintiff’s action with costs,in both courts.
Appeal allowed.
» (1952) 2 Q. B. 506 at 512.2(1886) 11 A. G. 332 at 337.