Case No.:

(AC-Revision- 119-1959)

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Landlord and tenant—Order for possession, ohere reasonable—Rent Restriction Ordinance, s. 11(a)

An order for possession against a tenant on proof that he was in arrears at the date of commencement of the action will only be granted where it is reasonable to make the order. Where a landlord demands a rent in excess of the standard rent and the tenant refuses to pay that or any rent, but subse quently, on the ascertainment of the standard rent and after the commencement of proceedings, pays the amount due that may constitute a ground for refusing an order.

Judgment

                                            (COURT OF APPEAL)

ABDEL WAHAB MOHAMED MEKKI KHALff s. E. ZERVOS

                                          (AC-Revision- 119-1959)

Revision

Advocates: Abdalla El Hassan ... for the applicant.

                   Ahmed Gumaa…….. for the ‘respondent.

August 10, 1959. M. A. Abu Rannat C.J.: —This is an application for revision by Abdel Wahab Mohamed Mekki Khalil against the decision of the judge of the High Court, Khartoum, in HC-Revision-109-59, summarily dismissing an application for revision from the decree of the District Judge, Khartoum, dated March 19,1959 ordering the applicant to vacate the house known as Plot 1(8), Block 9, D. W. Khartoum forthwith.

The facts appear to be these: The plaintiff, Mr. Zervos, is the regis tered owner of Plot 1(8), Block 9, D. W. Khartoum, and the defendant has been the tenant of this house since January’ 1954 at a monthly rent of £S.25. After the promulgation of the Rent Restriction Ordinance the defendant requested the plaintiff, on March 31,1954 in writing, to supply him with a wrirten statement of the standard rent in accordance with section 17 of the Ordinance. The plaintiff kept silent until December 9,1957. When his advocate sent a letter to the defendant informing him that the standard rent was £S.i8. During the period March 31, 1954, to April 12, 1955, the defendant remitted to the plaintiff the following amounts by cheques:

£S.30         on July 6, 1954            by cheque on Barclays Bank

£S.15         on August I, 1954,       ,, ,,  ,, ,,     ,,  Credit Lyonnais

£S.15          on August 31. 1954, ., ,, ,. ,, ,, ,, ,,  ,,Barclays Bank

£S.30,         on November 9, 1954 ,, ,, ,, ,,  ,, ,, ,, ,, ,, ,, ,, ,, ,, ,, ,,

£S.75,     on  April 12, 1955      by cheque on Barclays Bank

Court: M, A. Abu Rannat C.J and Abdel Rahman El NurJ.

In his letter of December 9, 1957, the plaintiff’s advocate called on the defendant to pay £S.822.ooom/ms representing rent due from January 1954 to December 1957 which was calculated on the assumption that the standard rent was £S.18 after deduction of £S.42 which was in their opinion recoverable by the tenant under the Ordinance. The defendant refused to pay on the ground that the standard rent was less than £S.i8. On March 4, 1958, the plaintiff instituted the civil suit, which is the subject of this revision claiming arrears of. Rent calculated at £S.i8 per month, and he also applied for ejectment.

At the stage when the issues were being framed, the plaintiff’s advo cate agreed that the standard rent was £S.17 and as soon as both parties agreed to this, the defendant paid to the plaintiff all the arrears which were then due amounting to £S.819 The plaintiff also admitted that after this amount was paid to him, the defendant continued to pay the rent regularly. Now the only issue to be decided is whether, on those facts, the plaintiff is entitled to the recovery of possession of the house in question.

The District Judge found that prior to the receipt of the letter dated December 9, 5957, declaring the standard rent, the defendant had an excuse not to pay, as he in fact acted within the law, but after that declaration the defendant would have no excuse not to pay, and he held that the defendant was in arrears for the months of December 1957 and January and February 1958, and he therefore ordered ejectment.

The relevant part of the Rent Restriction Ordinance, which gives the landlord right to possession, is contained in section 11(a) of the Ordinance, which reads as follows:

“11. In any suit by a landlord for the recovery, of possession of any premises, the court shall not grant such relief unless:

(a) Any rent lawfully due from the tenant has not been paid, or there has been a breach or non-performance of any other obligation of the tenancy, whether the same arises under this Ordinance or under the contract of tenancy so far as the same is not inconsistent with the provisions of this Ordinance.”

Let us now see if any rent lawfully due from the tenant has not been paid.

The tenant was entitled to withhold payment until the landlord had supplied the standard rent. The landlord said it was £S.18 which turned out at the hearing to be £S.17 and not £S.18, and as soon as this figure was agreed upon the tenant paid all the arrears in court.

Possession may only be recovered if rent is in arrears when proceedings were commenced and the court thinks it reasonable to make the order, and in deciding whether it is reasonable to i the order the judge must take into account in a broad common sense way all the relevant circumstances as they exist at the date of the hearing, giving such weight as he thinks fit to the various factors in the situation. In this case, the tenant was always ready and willing to pay if the standard rent were ascertained, and as soon as this was declared and agreed upon in court he promptly paid.Ret calculated on arong standard rent is not lawfully due and in my view it would be unreasonable to grant the relief asks for by the landloard in such circumstances.

This application is allowed and we order that t decision of the judge of the High Court and the decree of the District Judge be set aside, and the claim of the plaintiff be dismissed.

No order is made as to costs.

Abdel Rahman El Nur I.: —l concur.(Revision allowed)