I l I I. 1! t. I t! I. CA No.1007/95 D.C. Avissawella No IRE. Substituted Plaintiff/Appellant. DefendantIRespondent

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1 N THE COURT OF APPEAL OF THE DEMOCRATC SOCALST REPUBLC OF SR-LANKA. CA No.1007/95 D.C. Avissawella No RE 1! t J B. De Silva,(Deceased) Plainti. N. De Silva, 82 Yatiyantota Road, A vissawella. Substituted Plainti/Appellant. [ t! t B.D.Karunathilaka, NO.196, Ratnapura Road, A vissawella. l DeendantRespondent

2 Counsel: Upali De Almeida with R.J.U De Almeida or Plainti/Appellant. Rohan Sahabandu with Athula Perera or Deendant/Respondent. Arguements: , , , Written Submissions: Beore: Rohini Marasinghe J Judgment: CA 1007(95) The original plainti instituted action in the District Court seeking inter alia ejectment o the deendant-respondent (hereinater reerred to as deendant) on the basis o arrears o rent. The respondent iled answer denying that he 1

3 was in arrears o rent. At the trial "admissions" were recorded to the ollowing eect; 1. That the landlord o the premises in suit was late P.G De Silva, and upon his death the deendant had attorned to the original plainti as the landlord. 2. All rents paid to said P.G. De Silva were acknowledged. 3. The deendant is the tenant o the premises in suit 4. The premises in suit is governed by the Rent Act NO.7 o ts' standard rent did not exceed more that 100 per month 5. The Notice to quit dated , was received by the deendant. The parties had raised 7 issues or determination by court. Ater trial the judgment was entered on By the said Judgment the action o the plainti was dismissed. This appeal is against that dismissal. During the pendency o the trial the original plainti had died and her daughter the present appellant was substituted..! t l The case o the original plainti namely, Mrs P.G.De Silva was briely as ollows; The deendant was the tenant o her late husband who died on And upon the death o her husband the deendant had attorned to her as the landlord o the premises in suit. Her contention was that although the deendant had atoned to her as the landlord, he had ailed to pay the rents or 2 t! i

4 a period o more than 3 months ater it became due. She urther averred that the rents paid by way o money orders ater the death o her husband were duly acknowledged on her behal by her Attorney- at -Law. However, she submitted that the said money orders had been drawn in avour o her late husband and thus could not be encashed by her. The deendant was inormed o this act. The deendant whilst denying that they were so drawn agreed to deposit the said money in the name o "Mrs P.G. de Silva" at the oice o the Local Authority, upon the said money already paid as aore mentioned being reunded to him by the postal authority. (vide PS) Notwithstanding his undertaking to do so, the original plainti contended that the deendant deposited rents in the Local Authority in the name o "MR P.G. de Silva". (vide Pi) n the circumstances, the plainti contended that the payments so made could not be classiied as "tender" o payments to the landlord. The Deendant on the other hand stated that the payments made to the Local Authority were payments made in terms o section 21 o the Rent Act. Consequently, he claimed that it ell within the category o ltender o rents to the landlord." The main issue in this case was whether the deendant was in arrears o rent ater it became due. The original plainti had not given evidence at the trial as she was in very rail health. The evidence or the plainti was given by the clerk who had been in the oice o late P.G. De Silva who was an Attorney-at-Law. This case was based mainly on documents. The legal question or determination 'was 3

5 whether the money deposited with the Local Authority in the name o late 'Mr P.G.De Silva" subsequent to his death could be construed as payments made to his landlord, "Mrs P.G.De Silva". An extract rom the rent registry at the Avissawella Urban Council were marked as Pi and P2. The said documents marked as Pi and P2 disclosed that the rents had been deposited by the deendant in the name o "MR P.G.De Silva", in the Local Authority. This had been so done ater the death o the said demise o said o P.G. De Silva and subsequent to the attornment. The document Pi sates; t ~-v:)"y) ~ ~l-)(;j :s. ~~~~ ~'Y).:5. «') t,!.n 0' e K) ~'\O )) ~ )y\ [)~ Y)S~ ll/)"j ~ ~e ~~e 6~~ K)")3-)..) ee>j nll4 \5-A <X)t 6 yy) :J \.,,; ;:Y.J sqsy\ '0QS. ~u 6"~e ~ e ~~ ~ts'~ ~l ~n,rl <!)"D~ ~S~ ~ ~ ~tj,t ~3~ ZMS, ~ () ;) ". -D. ~'..ls~ The trial judge addressing this point had stated that he was bound by the decision in the case o D.M. J. De Silva v o Mallika Perera 1989 (2) SLR p 3S2(SC). n the said case it was held that to be entitled to the beneit o section 21 o the Rent Act all that needed to be established was that payment was made to the Urban Council. The section 21(1) provides; lithe tenant o any premises may pay the rent o the premises to the authorized person instead o the landlord" Section 21 (2) states "Where any payment o any rent o any premises is made on any day in accordance with the provisions o subsection (1), it shall be deemed to be a payment received on that day by the landlord o the premises rom the tenant thereo" 4

6 Justice Ramanathan delivering the judgment in that case held that the payment o rent to the Urban Council was suicient compliance with section 21 o the Rent Act 7 o This rule was changed in the case o Violet Perera v Asilin 1996 (1) SLR P ot. The said case held that; "But i it turns out that the real landlord is not the person in whose avour such instrument is drawn, then clearly the tenant cannot be regarded as having paid the rent to the landlord o the premises". t urther stated that "n case o doubt as to who the landlord is the tenant will be well advised to pay the authorized person". The "authorized person" is deined in section 21(4) o the Rent Act. Finally, the conlicting decisions in relation to interpretation o section 21 o the Rent Act was resolved upon a reerence made in terms o Article 132(3) o the Constitution in connection with the appeal o Gunasekera v Jinadasa 1996 (2) SLR P 115 held that "... payment to the authorized person in the name o the person who is not the landlord does not discharge the tenant's obligation to the landlord (pages 116 and 120) However, quite apart rom the binding precedent o the decision in the case o Gunasekera v Jinadasa, in the present case the attornment to the original plainti by the deendant had been recorded as an admission. Thereore, there could not have been any doubt in the mind o the deendant as to who his landlord could be in the premises in suit. The testimony o the deendant throughout the case was that he could not ascertain the present owner o the premises in question. t must be noted that the contract o tenancy is ounded on the contractual nexus between the landlord and the tenant. The cases Alles 5

7 v Krishnan 54 NLR P 154 and Visvalingam v Gajweera 56 NLR P 111 both oer authority or this proposition. As have mentioned above, the deendant's contention that he made payments o rents to the Local Authority in the name o "Mrs PG De Sillva" is contrary to the documents marked as P1 and P2. n the circumstances, the payment o rents in the name o a person other than the original plainti violates section 21 o the Rent Act. n the circumstances, the respondent is liable to pay the arrears o rents as prayed or in the plaint. The deendant is also liable to be ejected rom the premises in suit under the terms o the Rent Act. The basis o the learned trial judge that he was bound to ollow the decision o the case o Mallika Perera has now been interpreted by a bench o ive judges in the case o Gunasekera v Jinadasa.(ibid) Thereore, or the reasons mentioned above allow the appeal and set aside the judgment o the District Court. The appeal allowed. Rohini Marasinghe J Judge o the Court o Appeal. 6