(COURT OF APPEAL)*

ALl SALIH EL BARBARI v. ATIA MAHMOUD AT1A

AC-RE V-46-1966

Principles

·  Landlord and Tenant—Landlord—Rent Restriction Ordinance, s. 4—Person who can lawfully create a tenancy with another—Does not mean registered proprieto Landlord and Tenant—Sub-tenancy—If lawfully made, binds the tenant and sub-tenant”

Plaintiff is a tenant in respect of the premises in question. He alleged t the agent of the landlord gave him his written consent to sub-let the premi Accordingly he sub-let the same premises to the defendant, who failed to rent lawfully due and so he sued him for recovery of the rent and possess of the premises pursuant to Rent Restriction Ordinance, s. 11 (a). District Judge ruled that plaintiff is not a landlord within the meaning of the Ordinance and cannot sue for recovery of possession under Rent Restriction Ordina s. ii (a). Province Judge confirmed District Judge’s ruling and added that registered proprietor ought to be joined in the suit.
Held: (i) According to Rent Restriction Ordinance, s 4, lndlord means the person who can lawfully create a tenancy with another and does not mean the registered proprietor or owner. As the above definition is restricte to any tenancy,” therefore any person who can lawfully create a tenancy another comes within this definition.
(ii) Therefore, if the plaintiff in this case lawfully sub-let the premises t the defendant because he had a written consent from landlord to sub-let, then lie creates a lawful sub-tenancy which binds him and his sub-tenant, and accordingly plaintiff can sue defendant for recovery of rent lawfully due and possession of the premises

Judgment

Advocate: Omer El Nour Rhamis for applicant

Osman El Tayab J. November 19, 1966: —This is an application for revi5i0fl from the order of Province Judge, Kassala Circuit, dated Novem ber 22, 1965, dismissing summarily a similar application to him from the order of District Judge, Kassala, dated June 17, 1964, dismissing the appltcant’s ease for recovery of possession of shop known as plot.No.27, Bk. 2, G. N Area, Kassala Town.

The shop in question is registered in the name of Sayed Ali El Mergani as proprietor. Plaintiff alleged that the said shop has been leased to him, and that he sub-let it to the defendant at a monthly rent of £S.9.000m/ms., with certain conditions, and that he has the previous written consen of the registered owner to so sub-let it. He alle that the sub-tenant failed to pay rent lawfully due to him, and in I$ cauacity as head-tenant is claiming recovery of the arrears and possession.

The defendant denied the claim and alleged there is no existing agreement of tenancy between him and plaintiff and that he took the tenancy from the registered owner through the agent of the latter.

The learned District Judge posed the question as to whether the plaintiff in his capacity as tenant can sue the sub-tenant, in other words, is he a “landlord” within the meaning of the Rent Restriction Ordinance? He said he had to answer this question first, and in that he decided that p is not a hiadlord and so he cannot sue for possession under Rent R Ordinance, s.11 (a), and dismissed the suit. The learned Province Judge agreed with him entirely, and noted what may be understood to mean that the registered proprietor ought to have been joined in the suit.

Advocate Khamis, for plaintiff and applicant, submitted that the word andlord” in the Orthnance is not synonymous with registered proprietor, and that its meaning as defined included a tenant quoad a sub-tenant.

We have to look into the definition of landlord in the Rent Restriction Ordinance s. 4; it is as follows: “means with reference to any tenancy actual or potential the person who has granted or is entitled to grant that tenancy.”

This definition came for consideration in this court in Abdel Salam ashir and Others v. Omer Mohamed Ahmed El Abagi, AC-RFV-646-1965, but from an angle other than the one in the present case. That case was a co-owner of premises, who sued alone, in his own name, in his own right and without joining the other co-owners, he sued for possession on the grounds of his own need for personal use. It was decided that he was not a landlord within the meanmg of the Ordinance, since he could not grant the tenancy alone, without the consent or authority of the other co-owners.

The definition is clear in that it is restricted to “any tenancy,” and in that respect the landlord is the person who grants or is entitled to grant that tenancy; the person with whom the contract of tenancy is lawfully made; and a contractual relationship is created. This relation ship is normally created between the registered proprietor (in case of registered land) on the one part, and the tenant on the other. The registered proprietor is here the landlord, but where the tenant enters into a contract of tenancy with a sub-tenant, another tenancy is brought into edsten. This tenancy or the contractual relationship of landlord or tenant is not made with the proprietor of the premises, but is made with his tenant. The latter is the landlord with reference to the tenancy that he creates with the second tenant, or as is called, the sub-tenant. The sub-tenancy, where lawfully made, le, with the previous written consent of the original landlord) then it is bindIng on the tenant (or as is called the head-tenant) as well as it is binding on the sub I agree with the subml of the learned advocate for plaintiff that the word “landlord” in the Ordinance is not synonymous with rered proprietor or owner. It is understood that it includes any person who can lawfully create a tenancy with another, whethtr by operation of law or by contract. The tenant is, therefore, the landlord with reference to the sub-tenancy that Is lawfully created by him, and be can sue the sub for possession for failure to pay the rent under Rent Restriction Ordinance, s. 11 (a).

The learned advocate for plaintiff referred us to certain passages in Megarrv, The Rent Act (9th ed, 1961), p.409 relevant parts of them read as follows:

In general, the tenant st&nds in the same relationship to the sub tenant as the landlord to the tenant that, for example, the sub-tenant will be estopped from danying the tenant’s rIght to grant the sub by lacking or pardng with any b In the premises”

This stitement appears in the text aftor stating the right of the tenant to sub-let the whole or part of the premises, if the tenancy does not prohibit him from it. The significance of it is that the tenant, when he sub-lets lawfully, stands in the same reationship to the subtenant as the landlord to The tenant.

It has to be noted that the definition of landlord in the English Acts is different from ours. It is defined by inclusion therein as the person, other than the tenant, who is or would be, but for the Act, entitled to possession, and also it includes the person deriving title from the original landlord. This definition may mean the proprietor or the owner or the person deriving title from him, as against the tenant, and also as against the sub-tenant, if the contract of tenancy or the Rent Acts render him entitled to possession in that case or the other.

In my opinion the principle that the tenant stands in the same relation ship to the sub-tenant as the landlord stands to the tenant comes from the contractual relationship on the on hand and from the recognition by the Rent Acts of the position of the sub-tenant and the protection afforded to him on the other hand. In the Rent Restriction Ordinance the position of the tenant is recognised and protection is given to him. See sectiOns 14 and 20. In conclusion the tenant can enforce his con tractual and statutory rights against the sub-tenant.

In the present case the plaintiff can sue the defendant, and it remains for him to prove his allegation that he is a tenant and that there exists between him a lawful sub-tenancy.

For these reasons this application is allowed with costs, and the orders of the courts below are set aside.

Salah E. Hassan J. November 19, 1966: —I have nothing more to add.