(COURT OF APPEAL) *

AHMED MOHAMED EL NAGGAR vs. MOHAMED EL KHATIM OSMAN

AC.Revision-176-59

Principles

  Landlord and tenant—Rent restriction—Length of notice—Waiver of notice required by section 11 (e) of Rent

  Restriction Ordinance—Public interest—Locus standi of Nazir of a Waqf—Rent Restriction Ordinance, 1953, SS. 4 and 11 (e)—Interpretation—“Landlord”

  Where a statute specifies that a landlord shall give a certain length of notice, the requirement of the statute may nevertheless be waived unless a public interest is involved.

   The Nazir of a Waqf, being entitled to live in and grant a lease of a house which forms part of the Waqf property, is a “landlord” within the meaning of section 4 of the Rent Restriction Ordinance, 1953.

Judgment

Landlord and tenant—Rent restriction—Length of notice—Waiver of notice required by section 11 (e) of Rent Restriction Ordinance—Public interest—Locus standi of Nazir of a Waqf—Rent Restriction Ordinance, 1953, SS. 4 and 11 (e)—Interpretation—“Landlord”

   The Nazir of a Waqf, being entitled to live in and grant a lease of a house which forms part of the Waqf property, is a “landlord” within the meaning of section 4 of the Rent Restriction Ordinance, 1953.

  Where a statute specifies that a landlord shall give a certain length of notice, the requirement of the statute may nevertheless be waived unless a public interest is involved.

Revision

Advocates: Mohamed Abdulla Meshawi…………. for applicant

                    Hussein Wanni ……………………….for respondent

   24th November1959 Abdel Mageed Imam J.: —This is an application for revision against the order made by the Judge of the High Court, Khartoum, dated 20th July 1959 in HC/Revision/125/59 setting aside a decree of the District Court, Omdurman, dated 30th March 1959, granting the applicant, plaintiff in the Court of first instance, an order of eviction in respect of his house known as Plot No. 380/4/1 Omdurman Town against the respondent, defendant in the Court of first instance.

   The facts alleged in this case are in brief:—On 26th June 1958 the applicant became the registered Nazir of Waqf of the house in dispute in the name of certain beneficiaries. On the same date he made an oral agreement with the respondent, who was a former tenant, to quit after the period of four months.

   On 2nd November 1958 the applicant petitioned for eviction, and on 16th November 1958 a settlement was reached whereby, upon payment by the respondent of his fees to the applicant the latter agreed to suspend his case, thus allowing the former to remain in possession until such time as the applicant is evicted from the house which he was then occupying. The applicant wants the premises for his own use.

The respondent, on the other hand, denied any agreement to quit after four months, and insisted on his right under section 11 (e) of the Rent

* Court: M. A. Abu Rannat C.J., Abdel Mageed Imam J.

Restriction Ordinance, 1953,1 for six months’ notice and averred that the settlement alleged by the applicant was final in that after receiving his fees he agreed to abandon his claim. The respondent also denied that the applicant wants the premises for his own use and asserts that his real intention was to secure an increase of rent.

The District Judge found in favor of the applicant. On revision, the learned Judge of the High Court reversed the said decision on the following two grounds: —

(a) that the applicant was not the owner of the house in dispute; and

(b) admitting that he was such owner he failed to give the requisite notice under section 11 (e) of the Rent Restrictions Ordinance, 1953.

    As we see it, this application must be allowed. As for (a) above, the fact that the applicant was the owner of the premises in dispute was not contested in the Court of first instance. On the contrary, it was admitted— see page 5 of the Record. However, as the learned counsel for the applicant has pointed out, the applicant in his capacity as Nazir has the right and power to live in the house himself and effect a valid lease in respect thereof, and we agree that he is a landlord within the meaning of the Rent Restriction Ordinance and is, accordingly, entitled to apply for eviction.

  As for (b) above, we think that the District Judge was right when he found on the applicant’s evidence that respondent has waived his right to six months’ notice and accepted four. Such notice as required by section11 (e) is a mere personal right which does not involve the protection of any public interest and can, therefore, be effectively waived.

   “Where there is any express stipulation as to the notice to be given by either party to determine the tenancy, such notice, whether more or less than that usually required by law, must be given and will be sufficient, except when a longer or different notice is required by statute, as in the case of Agricultural Holdings Act, 1948.2 But less than the stipulated notice will be bad. The parties may, subject to special statutory enactments, agree to any length of notice they please.” Woodfall, Landlord and Tenant, 25 edition, p. 1024.

   It can be seen from the example given of the Agricultural Holdings Act that a public interest is involved, i.e., the protection of growing crops, in

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Section 11: “In any suit by a Landlord for recovery of possession of any premises

  The Court shall not grant such relief unless.

(d) the Landlord requires the premises as a residence for himself or either of his parents or for any of his own children; or

(e) the Landlord requires the premises for some purpose other than as a residence for his own use or for the use of a son of his and the Tenant is not using them as a residence; Provided that if on the sale of any premises the new Landlord requires the same for any of the purposes in the preceding paragraph he shall not be entitled to possession until the expiry of six clear months’ notice to quit given in writing to the Tenant.”

11 & 12 Geo. 6, c. 63.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                             .                                                                                                                     S.L.J.R.—6

   which case a tenant cannot be ordered to quit in a lesser period than the statutory period even if he had agreed to accept such lesser period as a valid notice.

The determination of the above two grounds disposes of the case. But we also think that the applicant is entitled to succeed on the settlement which he alleged. There is nothing in the record to show that this settlement was final as submitted by the respondent. On the contrary the record shows that the case was adjourned sine die—see entry dated 17 November 1958, at p. 3—which indicates that the said settlement was conditional or temporary.

    The District Court found that the applicant wants the premises for his own use and accepted his evidence in this respect. The Judge of the High Court did not see any reason to interfere with this finding of fact and we also think that this finding should not be lightly disturbed.

   For the above reasons I think this application should be allowed and the decree of the District Judge dated 30 March1959 be restored and that respondent quit the premises in dispute within fifteen days.

           Applicant is awarded costs taxed at £S.28.I90m/ms.

            M. A. Abu Rannat C.J.: —I concur.

                                                                                                      (Order accordingly)