013-NLR-NLR-V-66-J.-K.-WARAWITA-APPUHAMY-Appellant-and-U.-L.-P.-PERERA-Respondent.pdf
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H. N. G. FERNANDO, J.— Warawita Appuhamy v. JPerera
1961Present: H. N. G. Fernando, J.K. WARAWITA APPUHAMY, Appellant, and
U.L. P. PERERA, Respondent
S. C. 15911959—C. R. Colombo, 72222
Landlord and tenant—Acceptance of late payments of rent—Effect on landlord's right to
terminate tenancy.
The written agreement for a month to month tenancy provided that the rentshould be payable on or before the tenth of each month. Rent had been paidand acoepted from July 1946 for a period up to and including July 1958. Thurent for the month of August 1958 had not been paid by 16th October 1958, onwhich date the landlord issued a notice terminating the tenanoy on the groundof non-payment of the August rent.
At the trial it was proved by the tenant that during the entire period betweenJanuary 1957 and August 1958 the landlord accepted a particular month’s rent,,as a .matter of regular practice, when it was tendered to him at some time duringthe seoond half of the subsequent month.
Held, that the landlord was entitled to terminate the tenancy on October 16,1958, which was sixteen days after the termination of the period during Whichhe had previously ignored delay.'
-Yppeal from a judgment of the Court of Requests, Colombo.
Colvin R. de Silva, with D. R. P. GoonetilleJce, for defendant-appellant.
W. Jayewardenei Q.C., with M L. de Silva, for plaintiff-respondent.
Cur. adv. vult.
March 24, 1961. H. N. G. Fernando, J.—
The written agreement for a month to month tenancy in this caseprovided that the rent should be payable on or before the tenth day ofeach month. Rent had been paid and accepted from July 1946 for aperiod upto and including July 1958. But the rent for the month ofAugust 1958 had not been paid to the landlord by 16th October 1958,on which date he issued a notice terminating the tenancy on the groundof non-payment of the August rent. At the trial the tenant-appellantproved by the production of rent receipts for a period between January1957 and August 1958 that during this entire period the rent duefor any month was accepted by the landlord during the secondhalf of the subsequent month. The appellant relied on my
H. 1ST. G-. FERNAND0, J.—Warawila Appuhamy v. Perera
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decision in Suppiah v. Kandiah1 in support of the propositionthat the date on which the rent was due for any month wasnot the tenth day of any month but rather a date not earlier thanthe end of the subsequent month. I do not agree that the decisionsupports that proposition for in that case unlike in the present one therewas no agreement fixing the date on which the rent was to be payable.In any event although I remain of opinion that the tenant in Suppiah v.Kandiah (supra) was entitled to succeed, I think the grounds on which hewas so entitled are more correctly set out in my judgment in Jayakody v.Pedris a, namely that where for a considerable period a landlord hasaccepted without demand late payments of rent he cannot without firstinforming the tenant explicitly that future delay will not be excused andthat legal rights will be insisted on suddenly take advantage of one latepayment in order to sue for ejectment.
Where there is a written agreement specifying the date on which rentmust be paid, that date remains the due date for payment unless it isaltered by some new distinct agreement. Where on the other hand thereis a month to month tenancy without express stipulation as to the date ofpayment of rent, the last date of each month must he taken to be the duedate for the payment of that month’s rent. This principle was recognisedin the case of Adamjee Lukmanjee & Sons Ltd. v. Ponniah Pillai 8 decidedby my Lord the Chief Justice.
In the case last mentioned., however, no reference appears to have beenmade during the argument to my decision in Jayakody v. Pedris (supra)which dealt not so much with the question whether acceptance of late
payments of rent constitutes an alteration of the due date for payment
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but with the quite different question whether such acceptance has the effectof qualifying the right to sue for ejectment. That decision was based onthe judgment of a Bench of five Judges in Garlick, Ltd. v. Phillips 4, of theAppellate Division of the Supreme Court of South Africa. It may behelpful if I take this opportunity to add that the South African judgmentcontains references to several other decisions of the South African Courtsas well as to those of English and American Courts to a similar effect.If, as the learned Commissioner of Bequests in the present case thought,there is any conflict between the decisions in Jayakody v. Pedris (supra)and Adamjee Lukmanjee & Sons Ltd. v. Ponniah Pillai (supra), the otherdecisions which I have mentioned above will no doubt be duly considered.
In the present case the landlord did accept a particular month’s rent asa matter of regular practice when it was tendered to him at some timeduring the second half of the subsequent month ; and applying the prin-ciple of Garlick Ltd. v. Phillips (supra) he would not in my opinion havebeen entitled to terminate the tenancy on the ground that the tenant hadfailed to make payment for any month on the due date specified in theoriginal agreement, if rent was in fact tendered in accordance with theregular practice. But the rent for August 1958 remained unpaid even at
1 {1957) 58 N. L. R. 479.3 (1959) 61 N. L. R. 181.
* (1959) 60 N. L. R. 422.*■ 1949 (1) S. A. L. R. 121.
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ABEYESUNDERE, J.—Wimalaeena v. Seinuldeen
the end of September 1958. Accordingly the delay in payment extendedmuch beyond the period according to the regular practice had been allowedby the landlord. That being so the landlord was well within his rights interminating the tenancy on October 16th, 1958, which was sixteen daysafter the termination of the period during which he had previously ignoreddelay. The principle to which I have been referring therefore does notapply and the tenant’s appeal must be dismissed with costs.
Appeal dismissed.