Case No.:

(AC-Revision-310-1960)Revision

Court:

Court of Appeal

Issue No.:

1960

Principles

Judgment

(COURT OF APPEAL)*

ALI EL SAYED EL KOBANI v. HEIRS OF AHMED EL MAHDI

(AC-Revision-310-1960)Revision

Advocates: Ahmed Gumia…… for applicant

                         El Rasheed el Nayel…… for respondent

November I, 1960. B. Awadalla J.: —We .do not want to go into the facts of this case because there is no dispute about’ them, and the only points for our considerition are:

(a)           What is the standard rent of the premises?

(b)            Are respondents entitled to eviction by reason of applicant’s failure to pay that rent or any part thereof?

In our opinion the learned District Judge has correctly dealt with the law on the first point. We entirely agree with him that although the Rent Restjjctjon Ordinance does not define the word “rent,” yet common

* Court: M. A. Abu Rannat C.J., B. Awadalla j.

sense demands that in determining the “standard rent” for old premises there should be included not only the amount popularly known as rent for which the premises were let on July 1, 1951,but anything paid by the tenant to his landlord in consideration for the enjoyment of the demised premises on the date referred to, whether such amount is described as rent or otherwise. In Property Holding Co., Ltd. v. Clark [1948] 1 K.B. at pp. 648—649 Evershed L.J. said in defining the word “ rent” in respect to a claim similar to the one under consideration: “ In my judgment the question in each case is to determine what in substance is the subject matter of the tenancy—granted to the tenant by the contract: prima facie the rent is the monetary compensation payable by the tenant in considera tion for the grant, however it be described or allocated,” But although the learned District Judge dealt with the law correctly, he no doubt decided contrary to the straightforward evidence of PW.2 when he ruled that the rates payable on July I, 1951, were £S.1.200m/ms per month instead of £S.2.9I0m/ms. The account book produced by PW.2 and rightly admitted as evidence by the court shows that the amount paid by applicant on, June 15, 1951, was £S39.4I0m/ms which means that the rates for that month were the amount by which that figure exceeds £S.36.500m/ms The standard rent for the premises in question is therefore £S.39.4I0m/ms.

The reasoning given by the Honourable the Judge of the High Court when dealing with the case on revision, that applicant is accountable for the rates as they are today on an implied term in the contract is difficult to follow. If it is based, as it seems to have been, on an assumption that whenever a tenancy agreement is silent on the point the rates are to be paid by the tenant, then it no doubt contradicts the clear provisions of the Rates Ordinance, 1954.

Further, to contend that a person can be made liable by implication of law to pay rates irrespective of whether such payment would inflate the rent to dimensions not recognised by the Rent Restriction Ordinance is no doubt an erroneous view of the law, for it simply means contravening the most important provision in the Rent Restriction Ordinance in order to give efficacy to a relation solely recognised by that Ordinance. As stated above, rates, when paid by the tenant, are part and parcel of the rent and cannot therefore be exempted from the restrictions imposed by the Rent Restriction Ordinance. To take the present case as an example, if applicant is made to pay rates at present day figures then he would be required to pay in all £S.42.635m/ms per month when the standard rent is only £S.39.4I0m/ms. This is not possible; and if respondents want to make applicant liable for th increase, they have only to invoke section 9 of the Rent Restriction Ordinance.

We now come to the second question, viz.: Is this a case in which it is proper to order delivery of possession on account of applicant’s failure to pay rent lawfully due from him? Certainly it is not. The whole amotu-It due from applicant for the thirteen months claimed is £S.37.830om/ms which is less than one month’s rent. In England a provision similar to our section 11 (a) is construed in favour of the tenant (i.e., preventing recovery of possession) if the arrears unpaid at the date of hearing are not substan tial or there is nothing in the conduct of the tenant making it reasonable to make such order. We have always adopted such a course when there is a genuine dispute as to the standard rent. In Abdel Wahab Mohamed Mekki v. Zervos (1960) S.L.J.R. 43 the Hon. the Chief Justice said: “posses sion 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 make 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 that case there was a dispute as to the standard rent, as there is here. Considering the fact that applicant has never failed to pay the rent as it fell due and his failure was simply by reason of a genuine belief that he was not answerable for rates, it would no doubt be contrary to the spirit of the Rent Restriciion Ordinance to order eviction if the tenant is prepared to pay the rent as declared by this court.

This application is therefore allowed. The order of eviction made by the Hon. the Judge of the High Court is hereby set aside and there shall be an order against applicant to pay to the respondents a sum of £S.37.830om/ms being arrears due.

No order as to costs.

M. A. Athi Rannat C.J.: —I concur.

(Application allowed)