Kumar v Prasad [2004] FJHC 219; HBC0061.2004 (30 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0061 OF 2004

BETWEEN:

SHIU KUMAR
PLAINTIFF

AND:

ANENDRA PRASAD
DEFENDANT

Mr. R.P. Singh for Plaintiff
Ms B. Devi for Defendant

JUDGMENT

This action concerns an application under Section 169 of the Land Transfer Act whereby the plaintiff is seeking vacant possession of State Lease 3122 being Lot 16 Section 23 Samabula North having an area of 25.1 perches. The plaintiff is the registered lessee of the lease. The defendant came into possession of the property pursuant to a Tenancy Agreement dated 11th January 2002. The term of tenancy is three years commencing from 1st February 2002 at a monthly rental of $550.00. The term would therefore have expired on 31st January 2005. The other significant condition in the Tenancy agreement is Clause 6 which reads:

“Either party shall be at liberty to terminate this Agreement upon giving three (3) month’s notice in writing.”

A notice to vacate dated 26th August 2003 was given to the defendant. The receipt of this notice is not disputed. The only issue before the court is whether this notice was effective to terminate the tenancy. As such I shall set it out the material part in full:

“Re: Shiu Kumar (f/n Ganpati)

We act for our abovenamed client and are instructed to give you three month’s notice commencing from 1st September 2003 and ending on 30th November 2003 to quit and deliver vacant possession of the premises currently occupied by you at 66 Votua Road, Samabula, Suva.

Also please note that no damage must be caused to the property in the process of vacating. The property must be vacated in a tidy condition.

TAKE NOTICE that if you fail to vacate the property within the time specified herein, we are instructed to institute legal proceedings against you to evict you therefrom without any further notice or warning.

We are also instructed by our client to demand from you payment of rental arrears of $2,750.00 being rent due and owing to our client from April 2003.

TAKE NOTICE that should you fail to pay the said sum of $2,750.00 plus $112.50 being our cost within fourteen (14) days from the date of receipt of this notice by you, our instructions are to institute court proceedings against you in which event you will be liable to pay all costs incurred.

Yours faithfully,

R. Patel & Co.

{Sgd:}”

The notice seeks two acts from the defendant – First is vacant possession by 30th November 2003 and second payment of rental arrears in the sum of $2,750.00 from April that is five months rent.

The defendant wrote back on 4th February 2003 to the solicitors. The material part of this reply is contained in the first paragraph which reads:

“I refer to your letter dated 26th August 2003 and advise that I have paid all rents due as demanded by your firm and your legal costs. I further advise that I also paid rent up to December 2003 and therefore note that the notice to vacate given to me has no effect."

He also says that the plaintiff is not accepting rent for January and February 2004. In his affidavit in reply the plaintiff says that the rent was accepted by his solicitors on a without prejudice basis. Neither party has elected to produce the receipt for rent to show on what basis it was accepted. On affidavit evidence, the notice to quit attempted to terminate tenancy from 30th November 2003 but rent was also accepted for December. Was there therefore a waiver of the notice.

Section 100(2) of the Property Law Act states:

“After the giving of a notice to quit acceptance of rent expressed to be without prejudice to the notice shall not operate as a waiver of the right to enforce the notice or create or revive a tenancy.”

The receipt for rent not having been produced, I am left to decide this matter on basis of common law. In Clarke v. Grant (1950) 1 KB 104 at 105 Lord Goddard expressed the position as follows:

“Therefore when a landlord has brought a tenancy to an end by mean of a notice to quit, a payment of rent after that date will only operate in favour of the tenant if it can be shown that the parties intended that there should be a tenancy .... the question therefore is, qui animo the rent was received, and what the real intention of both parties was.”

That intention would be the intention at the time of the receipt of rent not at time of filing of this application. The Court would need to know what was said before and after rent was tendered and accepted to get at the real intention of parties.

In Maganlal Ramabhai Patel v. Native Land Trust Board – Fiji Court of Appeal 40 of 1976 the following passage from Central Estates (Belgravia) Ltd. v. Woolgar No. 2 [1972] EWCA Civ 4; (1972) 3 ALL ER 610 was accepted as correctly expressing the law on receipt of rent after notice.

“If the landlord by word or deed manifests to the tenant by an unequivocal act a concluded decision to elect in a particular manner, he will be bound by such an election. If he chooses to do something such as demanding or receiving rent which can only be done consistently with the existence of a certain state of affairs, namely, the continuance of the lease or tenancy in operation, he cannot thereafter be heard to say that that state of affairs did not then exist. If at the time of the act he had a right to elect whether to forfeit the lease or tenancy or to affirm it, his act will unequivocally demonstrate that he has decided to affirm it. He cannot contradict this by saying that his act was without prejudice to his right of election continuing or anything to that effect. In this respect his act speaks louder than his words, because the act is unequivocal; it can only be explained on the basis that he has exercised his right to elect. The motive or intention of the landlord, on the one hand, and the understanding of the tenant, on the other, are equally irrelevant to the quality of the act.”

I am of the considered view that the receipt of rent for December 2003 with the knowledge of notice to quit did constitute a waiver of that notice and the landlord had elected to let the tenancy continue.

Accordingly the defendant has shown cause to the satisfaction of this court that he is entitled to remain in possession. Accordingly the application is dismissed with costs which I summarily fix at $300.00.

[ Jiten Singh ]
JUDGE

At Suva
30th June 2004