034-NLR-NLR-V-67-H.-EBRAMJEE-Appellant-and-T.-PARAMANAND-Respondent.pdf
Present: Basnayake, C.J., Abeyesundere, J., and Sirimane, J.
EBHRAMJEE, Appellant, and T. PARAMANAND, RespondentS. C. 144/61—C. R. Colombo, 76,407
Landlord and tenant—■Action for recovery of rent alone—Maintainability.
A landlord is not precluded from suing for arrears of rent alone either beforegiving notice of termination of tenancy or after giving such notice but beforeit takes effect.
.A.PPEAL from a judgment of the Court of Requests, Colombo. Thisappeal was referred to a Bench of three Judges in terms of section 48Aof the Courts Ordinance.
S. Sharvananda, with Bala Nadarajah, for PlaintiiT-Appollant.
No appoarance for Defendant-Respondent.
1 (1936) 37 N. L. B. 345 at 347.
June 3, 1964. Basnayake, C.J.—
This appeal comes before this Bench on an order made by me undersection 48A of the Courts Ordinance on a reference made under section 48of that Ordinance by my brother H. N. G. Fernando. The questionfor decision is whether a landlord who sues the tenant only for therecovery of arrears of rent can afterwards bring an action in ejectmentin respect of the same breach of contract.
Briefly the facts are as follows :—The defendant who is the plaintiff’stenant failed to pay the rent due for May 1958 and subsequent monthsand the plaintiff on 16th March 1960 gave the defendant notice oftermination of his tenancy and called upon him to deliver possessionof the premises on 30th April 1960. On the 29th of April 1960, however,i.o., before the date on which the tenancy was to determine, the plaintifffiled an action in the District Court of Colombo (No. 49890/M) for therecovery of a sum of Rs. 1,380, being rent for May 1958 to March 1960.That action was settled and a consent decree for the payment of thearrears of rent due in instalments was entered on 21st February 1961.
While that action was pending the plaintiff on 24th May 1960 filedthe present action for ejectment and damages as the defendant failedto vacate the premises on 30th April.
In view of that action in the District Court the learned Commissionerhas held that the present action for ejectment and damages is notmaintainable. In our opinion he is wrong.
Justice Pulle has in the case of Ebhramjee v. Simon Singho (62 N. L. R.261) held that a landlord who sues his tenant for arrears of rent withoutat the same time asking for ejectment should cot be allowed to pursuethe claim for ejectment in separate proceedings. As indicated in ourjudgment in S. C. 65/61—C. R. Colombo 76,4751 delivered today, weare unable to agree with that decision. It is upon termination of thetenancy by a valid notice and failure of the tenant to yield and deliverpossession of the premises which is the subject-matter of the tenancythat the landlord may institute proceedings in ejectment and damagesfor over-bolding while he may without terminating the tenancy suefor arrears of rent. In an action for arrears of rent he is not entitledto ask for an order in ejectment unless the tenancy has been terminatedby a valid notice which has taken effect before the institution of theaction for arrears of rent. Although it is the practice of landlords toinstitute an action for arrears of rent after the notice terminating thetenancy has taken effect and ask for ejectment and damages for over-holding, a landlord is not precluded from suing for arrears of rent aloneeither before giving notice of termination of tenancy or after givingsuch notice but before it takes effect. In the instant case the landlordwas not entitled to ask for ejectment in the earlier action.
We accordingly set aside the judgment of the learned Commissionerand allow the appeal with costs both here and below.
Abeyesundere, J.—I agree.
SmiWAKE, J.—I agree.Appeal allowed.
* (1964) 66 N.L. R. 2S9.