SETUNGA v. W.M. G. FERNANDO

022-SLLR-SLLR-1982-2-SETUNGA-v.-W.M.-G.-FERNANDO.pdf


584
Sri Lanka Law Reports
(I9H2) 2 S.L.R.
SETUNGA
v.
W.M.G. FERNANDO
SUPREME COURT
SAMARAKOON. C.J.. WANASUNDERA J.. AND RATWATTE. J.
S.C. APPEAL NO. 15/82; CA NO. 333/81; D.C. MOUNT LAVINIA CASENO. 406/R‘EJULY; 28, 1982.
Landlord arid tenant – Consent decree – Writ of ejectment – Resistence toFiscal – Application under s. 325 of the Civil Procedure Code- Waiver-Election.
.One of the terms, of settlement of a suit for rent and ejectment was that writof ejectment would not issue provided damages were paid monthly commencingfrom the 1st of January 1979 before the 10th day of each and every month, i.e., the rent for the month of January 1979 should be paid before the 10th of thesame month. In the event of a single default writ was to issue.
Payments for January. February and March. 1979 were duly made. The paymentfor. April 1979 sent by T.M.O.-was received by the plaintiff on 1 Ith April 1979.The plaintiff acknowledged receipt-by his letter (R 12) dated 16.4.1979 by whichhe wrote to the defendant inter alia as follows:
"Your T.M.O. was received on the 11th evening. As you are aware, youare required to ensure that the rent remittance reaches.me by the 10thof each month and no later. I should advise you that I am not obligedto accept the rent if it Should reach me any. later than the 10th. I haveaccepted your rent in this instance, but if it should be at all delayed1 again. I shall not.hesitate to take-appropriate action. Should the 10th bea Sunday or a holiday please send it to reach me on the 9th". .
However the plaintiff applied for a writ of possession alleging that payments forJanuary, February and March 1979 had not been made according to the termsof settlement and the payment for April 1979 had been received on the 11thApril. The application was allowed but when the Fiscal went to cxecute-the writ,he was resisted by the defendant-appellant and two others. The Fiscal reportedthe resistance to Court. The plaintiff-respondent then initiated .proceeding unders. 325 of the Civil Procedure Code. After inquiry the District Jb'dge found theappellant guilty of the charge of resisting the Fiscal and fined him Rs. 1000/-and ordered the writ of execution to be reissued. The appellant moved the Courtof Appeal in revision but the application’ was dismissed. He then' appealed tothe Supreme Court.
Held –
In an inquiry under s. 325 of the Civil Procedure Code, the only questionbefore the Court is whether the resistance to- the Fiscal was justified or not andany evidence to justify it is admissible.
The resistance to the Fiscal was justified because.
(a) The payments for January, February and March 1979 had all reachedthe appellant before the 10th of the month and receipts had been issued by therespondent. Therefore the respondent’s complaint .that these payments were notmade in accordance with the settlement is incorrect.
SCSeiunga v. Professor W.M.O. Fernando (Samarakoon. C.J.)585
(b) Although the payment for April 1979 had been late the forfeiturearising out of the delayed payment had been waived by the respondent by R12. If a man determines, his election shall be determined forever.
Case referred to:
(I) Cloughv. London and North Western Railway Co. (I87/)L.R. Vll Exchequer, 34.
APPEAL from judgment of the Court of Appeal.
P. Wimalachanthiran with A.P. Niles and A. Shirty H. Perera for defendant-petitioner-appellant.
Cunaratne for plaintiff-respondent-respondent.
August 9,1982SAMARAKOON, C.J.
The respondent instituted this action against the appellant to havehim ejected from premises No. 15. Abeywickrema Avenue, MountLavinia, of which he was the respondent’s tenant, on the groundthat the appellant was in arrears of rent. The appellant denied thisallegation. On the 30th June, 1978, the dispute was settled and theterms of settlement were entered of record. Decree was enteredaccordingly. The relevant portion of the decree reads as follows:—
“Of consent, judgment be entered in favour of the plantiff againstthe defendant:
in a sum of Rs. 2,860/05 and continuing damagesrate of Rs. 190/67 per month from 1/2/77 till possiis restored to the plaintiff;
for ejectment of the defendant his servants, agents and
all those holding under him from the premises describedin the Schedule hereto;
for costs as taxed by an Officer of this Court.
It is further ordered and decreed:
That the defendant do pay the damages due in respect of the
premises in suit bearing No. 15, Abeywickrema Avenue, Mount
Lavinia commencing from the 1st of January 1979 befofe >the
586
Sri Lanka Law Reports
(1982) 2 S.L.R.
10th day of each and every month. That is, the rent for themonth of January 1979 be paid before the 10th day of thesame month. In the event of a single default both writs to issue.
If the defendant pays the aforesaid sum of arrears of rent anddamages on or before the 30th day of June 1982 writs not toissue till 30th June 1984.
In any event both writs to issue after the 30th day of June 1984.”
•
The stipulation regarding the payment of damages from 1st January1979 is somewhat confusing because the same para refers to thepayment for the month of January as "rent" and not damages. Theterms of settlement are recorded in Sinhala and the words used are“scf>£>(^ However no point was made of this at the argumentand I therefore proceed on the basis that what-was meant wasdamages for the month of January.
The terms of settlement and the decree stipulated that each month’sdamages should be paid “before the 10th of each and every month”.By . letter dated 26th December 1978 (RI) the respondent wrote tothe. appellant stating inter alia as follows:-
“You are aware that commencing January 1979 you are requiredto pay. your, rent each month by the 10th of the month. Nograce time can be allowed. Therefore please ensure that therent for each month is sent to reach me by the due date byMoney,. Order (not cheque)”,
By this letter the respondent seems to have altered the mode ofpayment. Thereafter money due was not paid before the 10th ofeach month. Whether this constituted a complete waiver of the timeof payment or a variation of it was not argued before us. The Courtof Appeal held that both parties understood the settlement to meanpayment or a variation of it was not argued before Us- The Cpurtof Appeal held' that both parties understood the settlement to meanpayment “by the 10 of each month", and it was so accepted and aadhered to by both parties. This finding has not been contested before us.
In May 1979 the respondent applied for a writ of possession allegingthat the payments due for the mohths of January, February andMarch 1979 had not been made according to the terms of settlement
SCSetunga i Professor W.M.C. Pernundo (Samarakoon, C.J.)587
and that payment due for the month of April 1979 had been receivedon the 11th April. The District Judge allowed the application. Whenthe Fiscal went to the premises on the 9th August 1979 to executethe writ of possession he was resisted by the appellant and twoothers. The Fiscal therefore could not execute the writ and hereported the matter of the resistance to the Disrict Court. Therespondent then initiated proceedings in terms of section 325 of the CivilProcedure Code against the appellant and two others. After inquirythe District Judge found the appellant guilty of the charge of residingthe Fiscal. He imposed a fine of Rs. 1,000/- on the appellant andordered the reissue of the writ of possession. The appellant filedpapers in revision in the Court of Appeal. That application wasdismissed. Hence this appeal with leave of the Court of Appeal.
The payments due for the months of January, February and March1979 have been made in accordance with the instructions given bythe respondent in letter *R They have all reached him before the10th of the month and receipts have been issued by the respondentfor such payments. He cannot now complain that these paymentswere not made in accordance with the terms of settlement. Thepayment for April 1979 was received by the respondent on the 11thApril and a receipt dated 12th April (R5A) was issued. Counsel forthe appellant argued thatthismoney was sentby TelegraphMoney
Order on the 10th Aprilandit should have been receivedby the
respondent that same evening. The District Judge has found as afact that this Telegraph Money Order was received on the 11 th Apriland I see no reason to disturb this finding of fact. The respondentsent the receipt ‘R5A’ totheappellant with.acovering letter dated
16th April 1979 (markedR12) which reads asfollows:-
“Dear Mr. Setunga,
I am enclosing herewith your receipt for the April rent.
. Your TMO was received on the 11th evening. As you areaware, you are required to ensure that the rent remittancereaches me by the 10th of each month and no later. I shouldadvise you that J am not obliged to accept the rent if it shouldreach me any later than the 10th. I have accepted your rentin this instance, but if it should be at all delayed again, I shallnot hesitate to take appropriate action. Should the 10th be aSunday or a holiday please send it to reach me on the 9th.
588
Sri Lanka Law Reports
(1982) 2 S L R.
To ensure quicker delivery you may address your remittanceto my home address: 1A, Upper Hantane, Peradeniya.
Yours sincerely,
Sgd. W.M.G. FernandoProf. W.M.G. Fernando”
Counsel for the appellant argued that by this letter the respondentwaived his right to obtain a writ of possession on the ground offoifeiture of the right of occupancy granted by the settlement. Counselfor the respondent contended that the Court of Appeal should nothave entertained this argument because the question of waiver wasneither pleaded nor put in issue at the inquiry in the District Court.I cannot agree. This being an inquiry in terms of section 325 of theCivil Pocedure Code, the only question before the Court was whetherthe resistance to the Fiscal was justified or not and any evidence tojustify it was admissible. Therefore R12 and the interpretation of it‘became relevant. Furthermore no issues are framed at such inquiriesas is done in a regular trial. I therefore reject this contention. .
In rejecting the argument that’ the forfeiture has been waived.Cader, J. has relied on the first four sentences only of ‘R12’ as beingthe relevant portions. He holds that: “All that this letter says is thathe may not accept a late payment of rent made thereafter” andfurther that “the letter contains no express promise not to sue.” Heconcedes that “Perhaps, by implication some forbearance on the partof the respondent may t>e read into the letter” but he holds that“this is not sufficient to save” the appellant because “he did notact upon the respondent’s representation.” I find myself unable toagree with this reasoning. The relevant portion of ‘R12’ is not thatquoted by Cader, J. but the latter portion which reads as follows:-“I have accepted your rent but if it should be at all delayedagain, I shall not hesitate to take appropriate action. Shouldthe 10th be a Sunday or a-holiday please send it to reach meon the 9th.
To ensure quicker delivery you may address your remittanceto my home address: 1A, Upper Hantane, Peradeniya.’’(Theunderlining is mine.)
The respondent accepts the April rent though late and warns theappellant that if it happens again he. will take appropriate action,meaning thereby, that he will take action upon a forfeiture in termsof the settlement. It is clear td my mind that the respondent bythis statement conveyed to the appellant his decision not to take
sc
Setunga » Professor W.M.C. Fernando (Samarakoan. C.J.)
589
advantage of the default as was his right under the settlement. Hewas excusing him this time but warned that he would not do so incase of default in the future. The use of the word "again” makethis clear. This was a clear waiver of his right to apply for writ ofpossession. That the slants quo was to continue becomes apparentfrom the fact that the respondent gives instructions to the appellantto ensure quicker delivery of Money Orders in the future. “If a manonce determines, his election shall be determined for ever.” (Comyns’Digest Election C2) Mcllor, J. quoting this in the case of Cloaghvs. London and North Western Railway Co. (1) said:
“The principle is precisely the same as that on which it is heldthat the landlord may elect to avoid a lease and bring ejectment,when his tenant has committed a forfeiture. If with knowledgeof the forfeiture, by the receipt of rent or other unequivocalact, he shews his intention to treat the lease as subsisting, hehas determined his election for ever, and can no longer avoidthe lease. On the other hand, if by bringing ejectment heunequivocally shews his intention to treat the lease as void,he has determined his election, and cannot afterwards waivethe forfeiture.”
Payments were made and accepted after receipt of letter ‘R12’ andreceipt ‘R5A’. When the appellant resisted the Fiscal on 9th August,he also had in his possession receipt for payments for the monthsof May (R6A) June (R7A) and July (R8A). He resisted the Fiscalon the faith of these documents and letter ‘R12’. Strangely thesereceipts were all for rent paid and not for damages. But no argumentwas based on this aspect of the matter before us. I am of the viewthat the forfeiture arising out fo the delayed payment for April 1979was waived by the respondent by ‘R12’. The appellant was thereforejustified in his resistance to the Fiscal. The respondent could notin the circumstance blow' hot and cold at the same time. I wouldtherefore allow the appeal and set aside the order of the Court of.Appeal and the District Court. The punishment meted out to theappellant is also set aside. The appellant will be entitled to costsof appeal to the Court of Appeal and this Court and his costs in,the District Court.
WANASUNDERA, J. – I agree.
RATWATTE, J. – I agree
Appeal allowed.