G. D. K. D. A. JAYATISSA, Appellant, and B. EBERT SILVA, Respondent

107-NLR-NLR-V-71-G.-D.-K.-D.-A.-JAYATISSA-Appellant-and-B.-EBERT-SILVA-Respondent.pdf


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WUAYATILAKE, J.—Jayatissa v. Ebert Silva
Present: Wijayatilake, J.
G. D. K. D. A. JAYATISSA, Appellant, and
EBERT SILVA, Respondent
8. C. 160/67—C. R. Colombo, 85812
Rent Restriction (Amendment) Act, No. 12 of 1966—Section 4 (c)—Scope—RentRestriction Act, s. 12 A-—Applicability in a consent decree.
Section 4 (c) of the Rent Restriction (Amendment) Act, No. 12 of 1906, isnot applicable to execution proceedings in respect of an action in which consentdecree was entered in favour of a landlord on the basis that, at the institutionof the action, rent was in arrears for a period over three months. In such acase, the fact that the consent decree entered on 4th June 1964 prior to theAmendment Act states that the tenant was in arrears for one month after itbecame due is immaterial if, at the stage when the settlement was entered into,the arrears were in fact for a period over three months.
Ar:PEAL from an order of the Court
of Requests, Colombo.
Walter Jayawardena, Q.C., with K. Jayasekera, for the plaintiff-appellant.
K. Shanmugaltngatn, with L. V. R. Fernando, for the defendant-respondent.
Cur. adv. vult.
February 18, 1969. Wijayatilake, J,—
The principal question which has arisen for consideration in thisAppeal is whether Section 4 (c) of the Rent Restriction (Amendment)Act, No. 12 of 1966, applies to the instant Action. The decree has beenentered against the defendant of consent. Section 4 provides as follows:—
WUAYATILAKE, J.—Jayaiissd v. Ebert Silva
625
“ The provisions of sections 2 and 3 of Act No. 12 of 1966 shall bedeemed to have come into operation on the twentieth day of July,1962, and accordingly—
(а)any action which was instituted on or after that date and before
' the date of commencement of Act No. 12 of 1966 for thedjectment of a tenant from any premises to which the principalAct as amended by Act No. 12 of 1966 applies shall, if suchaction is pending on the date of commencement of Act No. 12of 1966, be deemed at all times to have been and to be nulland void,
(б)any appeal preferred to the Supreme Court from any judgment
or decree of a court in any such action as is referred to inparagraph (a) and is pending before the Supreme Court onthe date of commencement of Act No. 12 of 1966 shall bedeemed at all times to have been and to be null and void,and
proceedings shall not be taken for the enforcement of anyjudgment or decree in any such action as is referred toin paragraph (a), and where such proceedings have begunbefore the date of commencement of Act No. 12 of 1966 buthave not been completed on the date of commencement ofAct No. 12 of 1966, such proceedings shall not be continued.
The plaintiff filed this Action on 22.8.63 against the defendant forejectment, arrears in a sum of Rs. 300 being 12 months’ rent and damages.The defendant filed answer on 22.10.63 pleading that the authorisedrent of the premises it Rs. 18.93 and that the plaintiff has recovered rentat the rate of. Rs. 25 per month. Setting off the sum of Rs. 612.50referred to in the plaint in respect of repairs carried out by the defendantand in respect of which sum the plaintiff has given credit to the defendant,and the excess rent paid, the defendant pleads that all rents upto the endof September 1963 have been paid or otherwise accounted for. Thedefendant further pleads that on 4.10.63 (after the institution of theAction) he paid a sum of Rs. 86.15 being rates and warrant costs on aseizure notice being served on him for non-payment of rates.
When the case came up for Trial issues were framed inter alia in respectof arrears of rent and the authorised rent. Thereafter the case proceededto Trial and when the plaintiff was under cross-examination the Trialwas adjourned for 4th June 1964. On this date the case was settled.The relevant clauses of the settlement are as follows
“ After giving credit for all amounts that have been spent by the. defendant for repairs in terms of order of the Rent Control Boardunder application No. 22/DN 59 and for all other claims made bydefendant, it is agreed that all rents and damages have been paid up tothe end of 31st July 1963. Defendant undertakes to pay the monthlydamages of Rs. 25 as from 1st August 1963. Taking into considerationthe permitted increase for all improvements effected by the plaintiffto the premises in suit, the arrears of rent and damages from 1stAugust 1963 to 31st May 1964 amount to Rs. 250. The defendant
526WIJAYATTLAKE, J.—Jayatisaa v. Ebert Silva
admits that rent has been in arrears within the meaning of Section13 (1) (a) of the Kent Restriction Act.
By consent judgment for Plaintiff in ejectment, in the said sum ofRs. 250 and damages at the rate of Rs. 25 per month as from 1st June,1964. ”
This was the position on the 4th of June 1968 when the settlement wasarrived at. These terms do not negative the averment in regard to the( arrears claimed at the institution of Action. Nor do these terms questionth'e correctness of the quantum of the rent payable at Rs. 25 per month.On the face of the settlement it is evident that the arrears of rent at theinstitution of Action were for a period over three months and the new Section12 A of the Rent Restriction Act is therefore no bar to the Action insti-tuted by the plaintiff. It may be noted that Section 4 of the AmendmentAct is retroactive in its operation, the date of commencement being20.7.1962.
The learned Commissioner has taken the view that the consent decreecannot be enforced under Section 4 (c) of the Amending Act 12 of 1966as it has been entered on the ground that the defendant was in arrearsof rent for one month after it became due. Apparently the Commissioneris referring to the following clause in the settlement.
“ The defendant admits that rent has been in arrears within themeaning of Section 13 (1) (a) of the Rent Restriction Act. ”
However, it must be appreciated that at the stage this settlement wasentered the new Act had not been promulgated and the parties to thesettlement could not have anticipated the period of three months referredto in Section 12 A and therefore it was not necessary to refer to a periodover one month. Be that as it may, as I have already observed it is quiteclear from the settlement that at the institution of the Action the arrearswould have been for a period longer than three months. Thus it is clearthat the averment regarding the arrears in the plaint is not fictitious.
In my opinion the judgment of Abeyesundere J. and Tennekoon J. inthe case of Charles Fernando v. T. P. de Costa1 which has dealt with Section4 (6) of the Amendment Act, No. 12 of 1966, would apply with equalforce to Section 4 (c) of this Act. See also Navas v. Mohamed2, AbdulSamad v. Sirinayake3.’
Another feature in the instant Action is that although the decree wasentered in terms of the settlement on 4.6.64, the defendant has sleptover his rights, if any, till 5.5.67 to object to the enforcement of thisdecree ! – As Counsel for the appellant has submitted during this periodthe defendant has availed himself of his rights under the settlement andhe would therefore be precluded from attacking that very decree. Thisappears to a substantial argument but I do not think it necessary for meto rest the decision of this Appeal on that in view of the conclusion Ihave already come to in regard to the applicability of Section 4 (c) of theAmendment Act, No. 12 of 1966.
i (1967) 69 N.]L. R. 381.* (1968) 70 N. L. R. 5 70.
* 119R7 70 N. L. S. 41.
PANDITA-GUNAWARDENE, J.—Gvnasinghe v. Yatigammana527
I would accordingly set aside the order of the learned Commissioner. and direct proceedings in execution to issue in terms of the consent decreealready entered.
I award the plaintiff the costs of Inquiry and costs of Appeal.
Order set aside.