083-NLR-NLR-V-73-Mrs.-D.-KARUNARATNE-Appellant-and-Mrs.-N.-S.-FERNANDO-Respondent.pdf
Karunaralnc v. Fernando
457
1970Present: H. N. G. Fernando, C.J., and Sirimane, J.Mrs. D. KARUNARATNE, Appellant, and Mrs. N. S. FERNANDO,Respondent
S.C. 224166—D. C. Colombo, J3J6/ZLLandlord and tenant—Sot ice to quit—Acceptance of rents thereafter by landlord—Whether renewal of the contract of tenancy can be inferred thereby—Pcnt-controllci2premises—Scrcice of notice to quit on tenant—Death of tenant thereafter—Continuance of tenancy—Pules applicable—Pent Pestriction Act, ss. 13, IS.
Acceptance of rents by u landlord after notico to quit has boon givon by himto his tenant doos not by itself oporato to ronew tho contract of tonancy ifthero is ovidonco showing that t-hero was no consensus ad idem between thoparties for such a rcnowal of tho contract.
Whore a tenant of rent-controlled residential promises who has been givonnotico to quit dies boforo action in ejectment is brought against him, his widowand family aro nevertheless entitled to continuo tho occupation of tho promisesafter a notico is given to tho landlord in terms of section IS (2) of thoKont Restriction Act. Tho torm “ tenant ” insoction IS (2) includes a personordinarily referred to os a “ statutory tonnnt ” ; it docs not boar the restrictedmoaning of “ contractual tenant
llensman v. Stephen (55 X. L. R. S3) not followed.
Whore a landlord vhallongos tho right of a person, who lias givon him anotico undor section IS (2) of tho Ront Restriction Act, to continuo in occupationos a tenant, his proper remedy, according to section IS (3), is to mako anapplication to the Rent Control Board. In such a caso it is not opon to tholandlord to resort to tha expodiont of filing on action in a court of law.
{1021) 3 C. Law Recorder S2.
{1029) 31 A’. L. R. 126.
i S3SIR1MA-XE, J.—Karunaratne v..Fernando
Appe AL from a judgment of the District Court, Colombo.
– 11. W. Jiryeu'urdene, Q.G., with J. FernandopuUe, L. W. Athvlalhmudali, G: J/-. S. Satnaraiccera and Rarindra Tennekoon, for the defendantappellant.
G. Ranganatkan,. Q.C., with D. S. Wijeu-ardene and K. Kanagaratnamfor the plaintiff-respondent.
Cur. adv. vult.
October 5, 1970. Serimaxe, J.—
One Karunaratne (the defendant’s husband) was the tenant of premisesNo. 31, Norris. Canal, Road, Colombo, under one. Porolis Fernando,from about the year 1943. Porolis Fernando died in 1960, having, devised these premises to his sister, the plaintiff, .whose residence isat Bandarawela.•, ' .
By D1 dated 29.4.60 the plaintiff made a request to Karunaratnefor vacant possession of the premises. Karunaratne replied, almostimmediately by D2 that he had been the tenant of these premises forover 17 years paying rent regularly, that he had no alternative accommo-dation and that lie was willing to attorn to the plaintiff. By D5 dated26.7.62 the plaintiff through her Proctor gave Karunaratne a.noticeto quit. Karunaratne. replied through his Proctor on 15.8.62 more orless on the same lines as in D2 adding that the premises were urgentlyin need of repairs and that he would be taking the matter before theBent Restriction Board, which he later did. He continued to pay therent.'
Thereafter, there have been several letters sent by the plaintiff andreplies thereto by the defendant. The plaintiff changed his Proctorin the course of this correspondence and sent Karunaratne two furthernotices to quit, the last of which was PI dated 30.10.63 to quit on30.11.63.' This notice, too, was met with the usual reply. .
Karunaratne died on 13.1.64, and 8 days later on 21.1.64 his widow,the present defendant, sent a notice—D15—to the plaintiff throughher Proctor under Section 18 of the Rent Restriction Act (Chapter274) together with a cheque for the rent for that month. The plaintiffreplied through her Proctor that the defendant was not entitled to sendsuch a notice, in view of PI referred to above, and returned the cheque.Thereafter however, it would appear that the defendant made monthlypayments direct to the plaintiff until July 1964. The plaintiff hadapparently been advised to file an action for declaration of title and .ejectment and obtained a limited probate for this purpose in PorolisFernando’s Testamentary Case on 13.7.64. She filed this action a coupleof months later.
SIRIMANE. J.—Karunaratne v. Fernando
459
Mr. Jayewardcnc for Ihc Defendant-Appellant contends that theacceptance of rent after the notices to quit shows that there was a waiverof those notiees and that Karunaratne continued to be the contractualtenant until his death, and thereafter his widow continued the tenancy.I have examined the correspondence between the parties anil I amunable to find anything therein which indicates that the plaintiIT agreedto a tenancy between herself and Karunaratne or th'c defendant afterthe notices to quit. As Wijcycwardcne, C.J. said in Virasinghe r.Per is 1 ;•—
i: The question of waiver of notice—if one may use an expressionwhich has been condemned as a loose and unscientific expression—cannot be discussed as an abstract- question of law but should beconsidered with reference to the facts of each particular case. ”
When there is a clear expression of the intention of one party toterminate the contract—c.g., bj- a notice to quit—there must be strongevidence to indicate that there was a change in this intention. Theoral evidence of the defendant herself points to the inference that therewas no consensus ad idem between the parties for such a renewal ofthe contract to have taken place.
1 think the learned Distriet- Judge was right when he reached theconclusion that the acceptance of the monthly payments madeby Karunaratne and his wife after the notices to quit did not by itselfoperate to renew the contract.
But the important point which arises for consideration is the scope and'effect of the notices under Section IS of the Rent Restriction Act. Thissection enables any person, who is the surviving spouse or a child, parentbrother, sister, or dependant of the deceased tenant, and who was amember of the tenant’s household during the period of three monthspreceding the tenant’s death, to give a written notice to the landlordbefore the 10th day of the month succeeding that in which the deathoccurred, to the effect that such person proposes to continue thetenancy. The Section also provides that the person giving such a noticeshall be deemed to be tiic tenant of the premises thereafter. In IJeusmanv. Stephen 2 Gratiaen, J. sitting alone decided that where a tenant- whohas been given a notice to quit dies, his widow and family arc no longerentitled to continue the occupation of the premises after a notice underSection IS.
The correct ness of this decision has been strongly challenged before
One has to ascertain the true intention of the legislature in enactingthis Section. It is beyond question that the object of the Rent Restriction
1 (1013) 40 S. L. It. 130.
(10S3) Si -V.It. SO.
4C0SJRIMAXK. J.— Karunaratne v. Fernando
■ Act was to protect the tenant. Under tlic common Jaw only a month’snotice was needed to effectively terminate a contract of monthly tenancy,and such a notice was the precursor to a successful action for ejectment ifthe tenant did not leave the premises. Section 13 of the Rent Act placeda number of fetters on the common law right of the landlord to eject histenant. Unless the conditions set out in that Section were present-,the notice to quit was quite ineffective and in no way touched " theright of irremovability of the tenant. He was protected, and despitethe unwillingness of the landlord to have him as the tenant he continuedto he in exactly the same position as he was before the notice.
But lawyers and judges have pointed out that the term “ tenant”is strictly inapplicable to a person who remains in occupation, after thetermination of the tenancy by the landlord, by virtue pf the protectionconferred on him by statute. He was therefore referred to sometimesas a “ statutory tenant” or a " tenant on sufferance But whateverlabel one chose to place upon him he could not be ejected from his homeunless the conditions set out in Section 13 were present. That was theprotection conferred on him by the Rent Restriction Ordinance of 1942.
. But what of his widow and dependants in the event of his death ?The view of the law then was that a montlily tenancy was a personalright which did not pass to a person’s heirs. In 1957 Basnayake, C.J.(with Pulle, J. agreeing) said so in Abdul JIafeel v. Mullu Bathool l. Adifferent view was taken in 1966 in Fernando v. de Silva 2. It is unnecessaryto consider this question for the purpose of this case, but one has to takenote of the fact that the law as understood in 1948 was that a montlilytenancy ended with the death of the tenant. The housing shortage hadbecome more acute since 1942, so that the widow and children of a deceasedtenant faced the danger of being rendered homeless merely at the willof the landlord.
It was to meet this situation that in 194S the legislature introduced. .Section 18 of the present Rent Restriction Act…..
•** *i
I think it is fairly obvious that the legislature intended to extend thesame protection which the tenant enjo3*ed to his widow, children or *dependants. In enacting this section the draftsman had used the word" tenant In my view, to give that word the restricted, meaning of" contractual tenant ” would defeat the very purpose of the legislation.
It would expose the deceased tenant’s family to the very danger whichthat se'etion, in my view, was intended to avert, for a landlord by resortingto the simple device of sending a tenant a notice to quit could, by-liisunilateral act, bring the operation of Section 18 to a standstill.
The word "tenant” is used in many places in the Act to include onewhose contract has been terminated by a notice to quit—e.g’.,-Sections 9 , . ’
* (1957) 58 N. L. R. 409.** (1900) 69 N. L. R. 164.
SIR IM AXE, J.—Karunaratnt v. Fernando
401
and 10 prohibit the * ** tenant” from sub-letting or permitting residentialpremises from being put to a 113' other purpose ; Section li enables the" tenant ” to apply to the Board for certain amenities and repairs ;Section 12 (2) enables the “tenant” to apply for a receipt from hislandlord. There is then the all important Section 13 which inter aliaapplies to a “ tenant ” who has fallen into arrears of rent or has damagedthe premises. Sub-section (2) of that Section refers to a person againstwhom a decree for ejectment has been entered, as a “ tenant”. Section14 provides for the continuance of the tenancy by a “ tenant ” after anaction for ejectment against him has been dismissed. Surely such aperson must have received a notice to quit before the action commenced.Section 15 enables a “tenant” to recover excess rent and Section 1Genables a “ tenant ” to demand from his landlord a statement in writingsetting out the standard rent of the premises. The whole Act would beunworkable if one acre to give the term “ tenant ” the restrictedmeaning of “ contractual tenant ”.
It is true that in England “The Increase of Kent-and Mortgage Interest(Restriction) Act ” of 1920 defines the term “tenant ” to include a widowand other relations. But the absence of such a definition in our Actdoes not, in my view, indicate an intention on the part of the legislatureto withdraw the protection conferred by Section IS to the widow of aperson who may be described as a “statutory tenant ”.
The key note of the legislation introduced by Section IS is the protectionof the home after the death of the tenant who was protected by theAct.' .
Jn Renton v. City of London Rent Properly Company Limited1 Bnnkcs,C.J. said—
“ It is, however, clear that in all the Rent Restriction Acts theexpression ‘ tenant ’ has been used in a special, peculiar sense, and asincluding a person who may be described as an ex-tenant and who hadcontinued the occupation without any legal right to do so, exceptpossibly such as the Acts themselves conferred upon him.”
Mcgarry in “ The Rent Acts ” (Seventh Edition) at page G quotescertain dicta from the judgments in the above case, Curl r. Angelo 5and Read r. Goater 3 thus—
“•The Court must endeavour to place reasonable interpretationupon the statute if the language used admits of such interpretation.’
‘A certain amount of common sense has to be brought to the
*i A li. 4U.- (101S) 2 A. K. tt. IS'J.
1 K. li. Cll.
(G2SIR 1MANT3. J.—Karunaratne v. Fernando
consideration of these Acts’ and 'it is essential that wherever
2)05Sible (the Acts) should be construed in a broad, practical, common
sense manner so as to effect the intention of the legislature.’ ”
In IJcnsman's case (supra) action had already been filed arid the tenantbro.ught to court. In such a case the rights of parties and their priviesarc determined as they stood at the date when plaint was filed. Thesefacts appear to have influenced the learned judge to some extent, for,he takes the example of a tenant who has fallen into arrears of rent,or caused damage to the premises, or used them for an illegal or immoralpurpose, and points out that all these acts “ would be beside the point ”if the widow was to be given a new tenancy. The example, with respect, -does not appear to be a good one. If indeed the tenant had done any orall of those acts, he would be ejected, and the applicability of Section18 would not arise. It is only in the very rare instance of a tenant whohaving committed such misdeeds Mies shortly thereafter that a notice.under Section IS may cause some hardship to the landlord. But wouldit be reasonable to give the term “ tenant ” in Section IS a restricted, meaning on this ground, when one considers the other consequenceswhich would flow from such an interpretation ? I do not think so. •
In the course of his judgment in Hensman’s case (supra) Gratiaen, J.agrees that the word " tenant ” in Section 13 of the Act was wide enoughto include a person whose contractual rights had been determined, andthat generally the same meaning should be implied by the use of the same•expression in other parts of the statute. But he goes on to say thatthere are other sections in which the term “ tenant ” referred only to acontractual tenant and that he was perfectly satisfied that it was in thisrestricted sense that the term was used in Section 18. He did not,.however, give any reasons for this conclusion. With the utmost respectI am unable to share this view and I am of opinion that the term“ tenant” in Section 18 includes a person ordinarily referred to as a“ statutory tenant
There is one other matter to which I would like to refer. What shoulda landlord do if he challenges the right of a person, who has given him anotice under Section IS (2), to continue tenancy ? I think sub-section
provides the answer :
“18 (3) The landlord of the premises in relation to which any writtennotice is given under sub-section (2) by any person may makeapplication to the Board for an order declaring that such a personshall not be deemed as provided- in that sub section to be the tenant .
■ of the premises; and the Board may make order accordingly ifsatisfied that such person is not entitled to give the notice for whichprovision is made by that sub-section.”
The legislature has thought it fit that the Board should decide certainquestions which arise under the Act, without the necessity for expensive
GoontuarJene v. Beddawela
<r, 3
and often tardy litigation in the Courts. The question whether a personwho has given notice under Section IS (2) is one who is entitled to do so .is a very simple one which the Board can speedily decide. LearnedCounsel for the plaintifT-respondcnt said that the object of sub-section(3) was to enable the Board on the application of a landlord to decidewhich one of the several heirs or dependants of the deceased tenant wasentitled to “ to be deemed to be the tenant ”. But surely a plain readingof the sub-section negatives such an interpretation. Sub-section (4)provides for the ease of more than one person who gives notice undersub-section (2).
I take the view that the plaintiff in this case on receipt of the noticeD15 from the defendant should have, if he challenged her right to continuein occupation as a tenant, taken the matter before the Board instead ofresorting to the expedient of filing an action for declaration of title andejectment.
I set aside the judgment and decree entered in this case and dismissthe plaintiff’s action with costs at both Courts.
N". G. Ferxaxdo, C.J.—I agree.
Appeal allowed.