034-SLLR-SLLR-1996-V-2-SELVARAJAN-v.-VIGENDRA-AND-WIFE-SHYAMALA.pdf
SELVARAJAN
V.
VIGENDRA AND WIFE SHYAMALA
SUPREME COURT.
G. P. S. DE SILVA CJ.
RAMANATHAN J.
WIJETUNGA J.
S.C. 54/96
S.C. SPL. LA 287/95
A. 472/83 (F)
C. COLOMBO 4848/REJUNE 24, 1996
JULY 31, 1996
Rent Act 5 of 1972 – S. 22(3)(c) – Tender of arrears – Credit of Case -Supervening Impossibility – Lex Non Cogit ad Impossibilia.
The Plaintiffs Respondents instituted proceedings for the ejectment of theDefendant – Appellant from the premises in question. The 2nd Plaintiff is theLandlord and the 1st Plaintiff the ‘Thesawalamai Husband’. The Defendant- Appellant in his answer took up the position that he had deposited in Courtbefore the Summons returnable date the arrears of rent and relied on S.22(3)(C) of the Rent Act. The District Court entered judgment in favour of thePlaintiffs, the Defendants appeal to the Court of Appeal was dismissed.
It was contended that it was impossible to comply with the provisions of S22(3) (C) because the plaintiffs were resident abroad.
Held:
Evidence discloses that the Defendant used to deposit the rent to theCredit of the Plaintiff in their Bank Acounts in Sri Lanka and on one occasionthe rent had been paid to the Attorney-at-Law for the plaintiffs. This is not aCase where the Maxim lex non cognit ad impossibilia could be applied. Theprevious course of conduct of the Defendant himself negatives the plea ofsupervening impossibility. There was no insuperable difficulty in adoptingeither of the two modes of payment which he had previously adopted andhad been accepted by the landlord.
Deposit of money to the credit of the case does not constitute a tender ofarrears of Rent to the landlord within the meaning of S. 22(3)(c).
AN APPEAL from the judgment of the Court of Appeal.
Cases Referred to:
Jayakody v. Lilian Perera – 1993(2) SLR 74
S. Mahenthiran for the Substituted – Defendant-Appellant.
P.A.D. Samarasekera P.C. with R.K.S. Sureshchandra for Plaintiff-Respondent.
Cur. adv. vult.
August 22, 1996.
G. P. S. DE SILVA, C.J.
The Plaintiffs instituted these proceedings on 19.8.81 for theejectment of the Defendant from the premises in suit on the ground ofarrears of rent. The 2nd Plaintiff is the landlord of the premises and the1st Plaintiff is the “Thesawalamai husband” of the 2nd Plaintiff. Theoriginal Defendant was the tenant of the premises but he died whilstthe application for special leave to appeal to this court was pending.His wife has now been substituted in the room of the original deceasedDefendant.
The Defendant in his answer took up the position that he haddeposited in court before the summons returnable date the arrears ofrent and accordingly relied on the provisions of section 22(3) (c) of theRent Act.
The Plaintiffs did not give evidence, but produced documentsmarked P1-P3. The Defendant gave evidence on his behalf. After trial,the District Court entered judgment in favour of the Plaintiffs. TheDefendant’s appeal to the Court of Appeal was unsuccessful, and hencethe pesent appeal to this court.
It is common ground that the Defendant deposited the arrears ofrent in court prior to the summons returnable date, ft was also notdisputed that the Plaintiffs were residing in the United Kingdom.
Special Leave to appeal to this court was granted on the followingquestion:-
“Since the Plaintiffs were not in Sri Lanka, is the deposit of moneyin court on 23.8.82 by the Defendant in accordance with section22(3) (c) of the Rent Act?”
Mr. Samarasekera for the Plaintiff-Respondents relied strongly onthe decision of Jayakody v. Lilian Perera{' where the court held, “thatthe deposit of money to the credit of the case does not constitute atender of arrears of rent to the landlord within the meaning of section22(3) (c) of the Rent Act.”
Mr. Samarasekera urged that there must be strict and propercompliance with the requirements of section 22 (3) (c) in order that thetenant might get the benefit of the “concession" granted to him by law.Counsel submitted that it is only where there is a valid tender of thearrears of rent as contemplated by section 22(3) (c) of the Rent Actthat the landlord will not be entitled to proceed with the action forejectment of the tenant. Counsel further pointed out that the evidencediscloses that the Defendant used to deposit the rent to the credit ofthe Plaintiffs in their bank account in Sri Lanka and on one occasionthe rent had been paid to the Attorneys-at-Law for the Plaintiffs.Payments so made have been accepted as payment to the landlord.
Mr. Samarasekera further contended that the absence of thePlaintiffs from Sri Lanka was not a “new situation”. In any event, counselargued, that the deposit of arrears of rent in court is not in conformitywith the provisions of section 22 (3) (c) of the Rent Act.
The principal submission of Mr. Mahenthiran for the DefendantAppellant was that it was impossible to comply with the provisions ofsection 22 (3) (c) because the Plaintiffs were resident in the UnitedKingdom. To use Counsel’s own words “there existed a practicalimpossibility of performance by the Defendant to tender to the landlordthe arrears of rent.” Counsel urged that the situation was one of “asupervening impossibility”and that this crucial fact was sufficient todistinguish the present case from the case of Jayakody v. Lilian Perera(supra).
On a consideration of the submissions of Mr. Mahenthiran it wouldappear that counsel is in fact relying on the principle embodied in themaxim “/ex non cogit ad impossibilia”. The true question which arisesfor decision is whether the application of this maxim is warranted, havingregard to the evidence of the Defendant himself. It is in evidence thatthere was a time when the Defendant paid the rent by crediting it to thePlaintiffs bank account in Sri Lanka. In the written submissions filedon behalf of the Defendant in the District Court it is stated that “theDefendant gave evidence that the Plaintiffs were out of Sri Lanka andupto 4 years ago rent was deposited at the bank.” In the notice to quit(P3) dated 23.2.1981 addressed to the Defendant by the Attorney-at-Law for the Plaintiffs it is stated, inter alia, that the Defendant is inarrears of rent for the months of May 1979, December 1980 and January1981 at the rate of Rs. 750/- per month. When the Defendant wasquestioned as to why he failed to pay the arrears of rent, his answerwas “I had no money at that time. I intended to collect the money andpay it.” He was further questioned as to why he did not send a chequeto the Attorney-at-law for the Plaintiffs. His reply again was “at thattime I had no money”. The matter does not rest there. There is evidencethat on a previous occasion by the notice to quit dated 5.8.80(P1), theDefendant was informed by the Attorneys-at-law for the Plaintiffs thathe was in arrears of rent from May 1979. In reply to PI the Defendantby letter P2 dated 28.11.1980 forwarded to the Plaintiffs’Attorneys-at-law a cheque for Rs. 13,500/- drawn in favour of the 2nd Plaintiff(landlord). The cheque was accepted as rent for the period June 1979,to November 1980. Thus it is seen that apart from the practice of payingrent to the credit of the bank account of the Plaintiffs, there is clearevidence that the Defendant himself has paid arrears of rent to theAttorneys-at-law of the Plaintiffs and such payment has been acceptedas payment to the Plaintiffs. As rightly submitted by Mr. Samarasekera,the absence of the Plaintiffs from Sri Lanka was not a new situationthat had arisen all of a sudden. The evidence shows that the true reasonfor the Defendant’s failure to pay forthwith the arrears of rent set out inthe notice P3 was not the absence of the Plaintiffs from the Island buthis inability to find the money.
In my view the evidence of the Defendant himself shows that thisis not a case where the maxim lex non cogit ad impossibilia couldproperly be applied. The previous course of conduct of the Defendanthimself negatives the plea “of supervening impossibility”. From a strict,legalistic, stand point it would at first sight appear that this is a case of
“impossibility of performance” since the Plaintiffs resided abroad. How-ever, on a scrutiny of the Defendant’s evidence it is manifest that hehas himself adopted two modes of payment of rent to her. Was therethen, an insuperable difficulty in adopting either of the two modes ofpayment which he had previously adopted and had been accepted bythe landlord? The evidence certainly does not reveal any suchdifficulty.The resulting position is that there is in truth no valid groundupon which this case could be distinguished from Jayakody v. LilianPerera (supra).,
I accordingly hold that on the evidence the plea of “superveningimpossibility of performance” fails. The appeal is accordingly dismissedbut in all the circumstances without costs.
The Defendant is now a widow and is in difficult circumstances.Immediate ejectment from the premises would naturally cause gravehardship. In the special circumstances of this case I direct writ ofejectment not to issue till 31st August 1998. The Plaintiffs will be entitledto take out writ without notice after 31 st August 1998 and to be placedin possession of the premises in suit.
RAMANATHAN, J. -1 agree.
WIJETUNGA, J.-1 agree.
Appeal dismissed.