006-NLR-NLR-V-59-MRS.-A.-C.-PIGERA-Appellant-and-M.-I.-M.-MACKEEN-Respondent.pdf
Pigera v. ytackecn
21
1957Present : Sinnetamby, J.
MIIS. A. C. PIGERA, Appellant, and M. I. M. MACKEEE, RespondentS. O. US—C. It. Colombo, 57,-573Pent Restriction Act, SS’o. 99 of 19J-S—Section 9—Sub-ietling—Condonation by landlord— H’aiver of landlord’s right by acceptance of rent.
" Although a landlord must elect forthwith to terminate a tenancy when hobecomes aware of a sub-letting in contravention of section 9 of tho Rent Res-triction Act, he may delay institution of action r-gainst the tenant if he has
22
SINNETAftTBY, J.—Pigcra v. MacX-cen
reasonable explanation for doing so, e.g., if the tenant genuinely undertakesto eject the sub-tenant and deliver possession of the premises in question. .
Acceptance of rent for a period subsequent to tho sub-lotting does notnecessarily prove waiver by the landlord of his right to eject tho tenant.
A
-lj^PPEALi from a judgment of the Court of Requests, Colombo.
II. W. Jaye.ward.ene, Q.O., with II. Rodrigo, for the defendant-appellant.V. Wijetunge, with D. R. P. Goonctilleke, for the plaintiff-respondent.
Cur. adv. vttU.
January 7, 1957. Sinxetamby, J.—
This is an action for ejectment instituted by the landlord against histenant without the authoi'isation of the Rent Restriction Board. Thelandlord claims the right to so institute this action by virtue of the factthat the tenant had sub-let the premises within the meaning of section 9of the Rent Restriction Act of 1948. The learned Commissioner hasallowed the plaintiff’s claim for ejectment and the appeal is against thatjudgment.
The facts are as follows. The defendant was a lessee of the premisesin question under a lease P3 according to the terms of which the leaseexpired on 31.12.1954. The tenant had sub-let the premises during thesubsistence of the lease and the landlord, according to the evidence,became aware of this shortly after the 24th April, 1952, when he receivedletter PI in regard to assessment of the premises by the Municipalityand consequent upon a visit to the premises in connection therewith.The lease docs not permit sub-letting : on the contrary there is a covenantin the lease which fexjuessly prohibits it. Tho landlord did not imme-diately file action but accepted an assurance from the tenant’s husbandthat he would eject the sub-tenant and deliver possession of the premisesto the landlord. On 31.3.53 the landlord sent notice to quit P2 but didnot proceed to action. The tenant thereafter had taken steps beforethe Rent Restriction Board to eject the sub-tenant and the landlordsays he actively co-operated with the tenant in the course he was pur-suing. This is the explanation for the delaj' in filing action and the learnedjudge has accepted that explanation as the reason for the delay ininstituting action. After the expiry of the lease, in January 1955 hesent a further notice to quit P6 and instituted the present action in June1955. It is to be noted that when the lease was due to expire the landlordsent the tenant letter P5 asking for delivery of possession at the termina-tion of the lease. It was presumably because the tenant failed to deliverpossession of the premises that the landlord sent the notice to quit P6dated 21.1.55. In neither P5 nor PG docs the landlord claim that he isentitled to possession by reason of the sub-lctting.
SI.VXETAMBY, J.—Pigcra i lackcen
23
The only matter pressed at the argument in ai>pcal related to thequestion of condonation. The learned Commissioner has held that therewas no condonation and has accepted the landlord’s explanation for thedelay. It was urged that he had misdirected himself on this questionboth in regard to the law and on the facts.
It was contended that a landlord must on becoming aware of a sub-letting elect immediately whether he should regard the tenancy as atan end or whether he should permit the tenancy to continue. Reliancewas placed on the case of Bobcrl r. Ttuslmd f for this proposition.Gratiaen J. therein observed:
“ The correct view is that, when the landlord becomes aware of thecontravention, he must forthwith elect whether or not to treat thecontract as terminated. If he elects to enforce this statutory remedy,the tenant’s statutory protection under section 13 is automaticallyforfeited. But if lie docs not so elect the contravention is condoned,and the contractual tenancy continues.”
I do not take the view that by these words the learned Judge intended tostate that the landlord should immediately file action. He may electforthwith to terminate the tenancy and nevertheless give the tenant time.All that is required is that the election should be made forthwith and notso long afterwards as to suggest condonation. In the present case if thedelay in instituting action had stood by itself without any other relevantfact the inference of condonation would be so overwhelming as to boalmost irrebuttable. But in this case there are other facts also to boconsidered.
Plaintiff’s evidence is that he withheld his hand because the defendantundertook to eject the sub-tenant and deliver possession. One canunderstand a landlord not filing action in those circumstances if he believedin the sincerity of his tenant in view of the fact that recourse to the laweourtsinvolvcsnotonlydelay but also expense. Binding that the tenantwas somewhat remiss the landlordsent notice P2 which had the effect ofimmediately inducing the tenant to take steps to obtain the authorisationof the Rent Restriction Board to eject his sub-tenant. These proceedingswere long drawn out due mainly to mistakes made by the tenant andthe landlord then proceeded to give the notice on which the present actionis based. In fact no notice would have been necessary as a breach ofsection 9 of the Act gives the landlord a statutory right to sue thetenant immediately in c-jcctmcnt.
In support of the plea of condonation the following facts were urged.
First there was an acceptance of rent right up to May, 1955. Secondlyin the notice to quit P6 no reference is made to the sub-letting and finallyno mention was made in accepting rent that it was being done so withoutprejudice to the landlord's rights to sue. On these facts it would nodoubt have been open to a judge to reject the landlord’s evidence and to
(1954) 55 N. L. P.. 517.
2-1
SJNNETAMBY, J.—Pig era t>. ilackocn
hold that there was no condonation. The question of condonation is,however, a question of fact. The learned trial judge has come to oneconclusion and I cannot say that he is wrong.
On the question of whether there has been a waiver by acceptance ofrent for a period subsequent to the sub-letting one has to take into accountthe facts of the case. There is no presumption in favour of waiver :the presumption is just the opposite. (Vide Fernando v. Samarawcera1)
Although it is possible that another judge might well have taken anotherview on the question of waiver I am not justified, sitting in appeal, tohold that the judge erred on the question of fact involved in the plea ofcondonation. X accordingly dismiss the appeal with costs both here andin the Court below. .
Appeal dismissed.
■1 {1951) 52 X. L. U. 278.