Civil Procedure-s-Commencement of action-s-Presentation of petition and pay-
ment of fees-Whether amount to an action-s-Whether action 1101 brought
until service of summons

Equity-Forfeiture-Relief from forfeiture for breach of covenant-Discretion
of court to grant relief under section 9 of the Civil Justice Ordinance
1929

Landlord and Tenant-Covenant of least!'-Forfeiture-Waiver-Proviso against
assignment-Breach of-Acceptance of rent after commencement of suit
for possession

On January I, 1935, the appellant entered into a contract of lease with
the respondents. He undertook not to assign or sub-let any part of the pre-
mises without the prior consent of the respondents. In case of breach or
non-payment of rent, the respondents were at liberty to determine the
tenancy. In October 1939 the respondents raised an action for eviction for
non-payment of rent. The decision in their favour was set aside after the
appellant had paid the rents due. In the meantime the appellant had let
the premises to two different persons. Having discovered this the respond-
ents raised an action for eviction for breach of covenant in December 1939.
A summons was served on the appellant on January 17, 1940, and on the
same day he paid the respondent the rent for January. The appellant was
ordered to deliver possession of the premises to the respondent. He applied
for relief from forfeiture, alleging hardship.

Held: (i) Relief against forfeiture for breach of covenant may be
granted under section 9 of the Civil Justice Ordinance 1929 if the court is
satisfied that, having regard to the conduct of the parties and the circum-
stances of the case, such relief ought to be granted.

(ii) On the facts of the case, the conduct of the appellant was such
as not to merit such relief.

* Court: Creed C.J., Bennett A.G. and Evans R.G.L.

(iii) Receipt of the rent after action was brought was not a waiver of
the right to re-enter. Had the appellant pleaded waiver it would have been
necessary to determine whether action was brought on service of the sum-
mons or before that. However, as he did not plead it, the court was re-
luctant to raise the issue out of its own accord.

Civil Service Co-operative Society v. McGrigor's Trustee [1923] 2 Ch. 347
followed.

Evans v. Enever (1920) 2 K.B. 3 15 followed,

Civil Justice Ordinance 1929, s. 9.

Appeal

February 19, 1940. Creed 'C,J.: This is an appeal from a decree
of the judge of the High Court, Khartoum, by which it was ordered
that the appellant should deliver possession of certain premises to the
respondents on or before the first day of February t 940.

The facts of the case are briefly as follows: The respondents
made an agreement on January l , 1935, whereby they let to the
appellant certain premises for a period of five years "commencing
from January t, 1935, on the under.i.~ing that if neither party noti-
fies the other in writing two months before the expiration of the lease
of his intention '0 the contrary, the tenancy shall be considered as
renewed for a further period of one year." The rent was stated to be
payable monthly in advance. The tenant undertook .by clause 3 (g)
of the contract "not to assign or sublet the said premises or any part
thereof without the written consent of the landlord previously had and
obtained." It was a further term of the contract that on non-payment
of rent, "or on breach by the tenant of any of the agreements or
obligations by him to be performed, the landlord shall be at liberty
to determine the tenancy hereby created and to reenter into possession
of the demised premises." On October 4, 1939, the respondents raised
an action for evict jon of the appellant on the grounds of non-payment
of rent. Judgement was given in their favour on November 7, 1939,
but on January 7, 1940, the decree was set aside on revision, the
appellant paying all arrears of rent due and the costs into court. In
the meantime on October ] 3, 1939, the appellant had sub-let part
of the premises to a certain person by a written agreement, without
the consent of the landlord, and in the same month he entered into an
agreement with one Tigani Abdel Rahman, whereby he sub-let the
remaining part of the premises at a daily rent of 20 piastres. The
respondents discovered in December 1939 that this breach of clause
3 (g) had been committed, and on January 13, 1940, they raised an
action for eviction on the ground of breach of this term. The summons

was served on January 17, 1940, and on the same day the appellant
paid to the respondents the sum of £E.11.500 m/rns. A receipt was
given by the respondents. but their usual printed form of rent receipt
was altered by the insertion of the words "for own use and occupation,"
the receipt thereby reading as follows: "Received from Sheikh Ahmed
El Zubeir Abdulla for own use and occupation the sum of eleven
pounds Egyptian and 500 rn/rns being rent of premises No. 8/H22.23
for the month of January 1940." The action was heard on January 24,
) 940, and an order was made that the appellant should deliver pos-
session of the premises to the respondents.

The defendant has appealed setting forth certain grounds on
which he applies for relief from the forfeiture to be granted, alleging
hardship. This court is not of the opinion that under no circumstances
should relief be granted under section 9 of the Civil Justice Ordinance
1929 against forfeiture for breach of a covenant not to assign a lease
or sub-let without the landlord's consent. Such relief may, in the
view of this court, be granted under section 9 if the court is satisfied
that, having regard to the conduct of the parties and all the other
circumstances, such relief ought in justice, equity and good conscience
to be granted, on such terms as in the circumstances of each particular
case the court may think proper. Each particular case must be con-
sidered on its merits, and it is not desirable that this court should lay
down rigid rules as to when relief against forfeiture should be granted. "

In the present case, having regard to the conduct of the appellant
and all the other circumstances, including the fact that there has been
no application by the assignee, this court is of the opinion that there
is no ground on which relief against the forfeiture should be granted.
Not only has the appellant committed a clear breach of the covenant
in question, with full knowledge and appreciation of the fact that
he was committing a breach, but his conduct as a tenarit has been
consistently unsatisfactory. This is the fourth action which the re-
spondents have been compelled to raise in connection with the tenancy.

Although the appellant has not raised the point either in the
court below or in this court, this court has devoted some consideration
to the point as to whether the receipt of £E.lI.500 m/rns on Jan-
uary 17, 1940, ought to be regarded as constituting' a waiver of the
forfeiture. The payment was made after the institution of the action.
but there is no evidence to show whether the payment was accepted
before the service of the summons on the appellant by the court or
after the service. "There is a series of cases which establish that if