Case No.:

(AC-Revision-42-1960)

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Landlord and tenant—Rent Restriction Ordinance, s. 17-Standard rent- Contractual rent

In an action by a landlord for arrears of contractual rent in excess of the standard rent for a period of one year the District Court ordered payment by the tenant of the contractual rent for six months and the standard rent for the remaining six months on the ground that, as the tenant failed to invoke section 17 of the Rent Restriction Ordinance, the Ordinance does not protect him for a period in excess of that for which recovery of overpayments by deduction is allowed.
Held: The provisions of section 17 are not imperative but simply discretionary and are only of use when the tenant is in doubt as to the standard rent. The amount payable under the claim was therefore calculated on the basis of the standard rent for the whole period.

Judgment

(COURT OF APPEAL)

BABIKIR MOHAMED EL DEEB V. JOSEPH TABET

(AC-Revision-42-1960)

Revision

The facts appear fully in the judgment of B. Awadalla J.

Advocates: Husni for applicant

Abdel Halim el Tahir for respondent

May 8, 1960. Babikir Awadalla I.: —This is an application by Babikir Mohamed El Deeb against the summary dismissal by His Honour the Province Judge, Khartoum, of an application to him against the decree of the learned District Judge, Khartoum, dated June 6, 1959. There is also a cross application by respondent against the same decree, and—in order to avoid confusion—I shall refer to the parties by their proper names. The relation of the parties is one of landlord and tenant, and the facts giving rise to this litigation arc as follows: By virtue of a written tenancy agree ment dated October 24, 1956. El Deeb took over house No. (i) Bk 8 E.E. Khartoum,property of Joseph Tabet, at £S.37 per month with effect from November 1, 1956. As drafted, the tenancy agreement is no doubt a yearly one, under Which the rent of £S.444 is payable yearly in arrear, but the course of dealing between the parties indicated that this stipulation as to yearly payment was revoked in favour of the monthly payment of £S.37.

El Deeb paid at this last-mentioned rate for three months and then questioned its legality. On April 10, 1957, he sent a letter to Tabet claiming that the monthly rent was only £S.25 and therefore sent a cheque for £S.14.

• Court : B. Awadalla 1.. . M. Imarn J.

Being the arrears he considered being due up to the end of March 1957. Tabet rejected the cheque by letter dated April 12, 1957, and claimed payment at the agreed rate together with delivery of possession. El Deeb replied by letter dated April 17, 1957. Claiming an account at the rate of £S.15 which he considered to be the standard rent, and recovery of amounts paid in excess. Later on, apparently in June 1957, El Deeb again wrote in the same sense and enclosed a cheque for £S.9 being the arrears due for the eight preceding months.

Early in July, Tabet instituted these proceedings claiming £S.i8 and eviction on ground of non-payment of rent. The case was first due for hearing on August 26, 1957, on which date Tabet did not appear. Advocate Siddik Kheir appeared on behalf of El Deeb and denied claim. Case was therefore dismissed but on application by Tabet. it was reopened on November 2, 1957, and Tabet applied to amend claim to include the rent due up to end of November 1957.

On December 15, 1957, the learned District Judge made an order for pleadings with a fresh statement of claim By his statement dated January 7, 1958, Tabet introduced a fresh cause of action and claimed eviction on ground of waste in that El Deeb had neglected to water the garden and thereby caused damage to the house.

El Deeb denied the claim both as to arrears and waste and contended that the standard rent was only £15 the issues framed appears at p. 29 of the record. These are:

(i) What is the standard rent?

(ii) Did the defendant cause deterioration of the premises and what is the value of the damage?

(iii) Is the plaintiff entitled to the relief claimed or part thereof?

The first two issues were both decided by the court in favour of El Deeb as will be ‘seen later in this judgment. One would have expected its decision on the third issue to be a logical conclusion to its determination of the first two issues. This it was not, for the learned District Judge ordered payment of the contractual rent for all the period but six months: And passed a decree accordingly. Both parties applied to His Honour the Province Judge for revision and both applications were summarily dismissed.

Before the District Judge, Tabet was heard on oath and contended that the premises were old but were not occupied by any tenant on July 1, 1951. He produced Doc. 1—a letter dated October 17, 1952, purporting to have been written to him by Advocate Candioglou in his capacity as advocate for the original proprietors from whom Tabet acquired the house by purchase in 1952  Paragraph 3 of this letter reads as follows:

“The two contracts of lease of the two houses built on the plot purchased by you both dated August 18, 1951, in favour the one of Mr. Christos Zavrides and the other of Mr. Elias Vassiliou will be handed over to you on signature of the Deed of transfer.”

This letter was tendered in evidence apparently in an attempt to prove that the house was vacant before August 18, 1951, and so the standard rent is what the Governor may approve under. Section 4 (d) of the Ordinance. Acceptance of this letter in proof of the occupancy or otherwise of the house on July1,1951 is no doubt contrary to the very rudimentary rules as to admissibility of evidence. However, even though taken for what it is worth, that paragraph cited cannot be construed as necessarily meaning that because a Written tenancy in the name of the purchaser was made to date from August 18, 1951, then the house must have been vacant prior to the date of that lease, for non coristat that there was a previous tenancy

—written or oral—with the vendor, i.e., Tabet’s predecessor-in-title.

Evidence was given on behalf of El Deeb by D.W.3 Vassiliou Zavrides, the very occupant of the house at the time Tabet bought it, and he stated that he was occupying that house since 1948 at £6 per month and that the monthly rent had risen gradually until it was £. 15on July I, 1951. He also stated that he vacated the house in 1953.

On the first issue, therefore, the learned District Judge accepted the evi- dence in favour of El Deeb and rejected Tabet’s contention.

As regards the second issue, no evidence whatsoever was tendered in support of the allegation of waste and no mention of it was made in the submissions on behalf of Tabet and I take it that it was a ground which was not seriously intended and so inadvertently lost sight of or aban doned in the tumult of the real contention.

It is not at all clear why the learned District Judge did not proceed to give his judgment in accordance with the evidence as to the standard rent. Section 10 of the Ordinance is clear as to the rights and liabilities of the landlord and tenant inter se in so far as rent in excess of the standard rent is concerned, it says:

“If at any time after July 1, 1953, the rent of any premises has been or be increased otherwise than as permitted, by this Ordinance, then notwithstanding any agreement to the contrary, such increase or such excess shall be irrecoverable from the tenant and if paid by him may be recovered from the landlord.”

The learned District Judge, it seems, was not oblivious of this fact for he said at the penultimate paragraph to page 2:

“The Courts of the Sudan do not recognise any rent besides the standard rent.”

But he proceeds to “gloss” the Ordinance by stating that the “tenant must display sufficient diligence and care in pursuance of his rights under the Ordinance.” In my view there is nothing to support this contention. The section above referred to says “notwithstanding any agreement to the contrary.” If the legislature intended to protect a tenant against his wilful abandonment of his rights to enforce the standard rent, I cannot see how it fails to protect him against mere lack of “diligence.”

But what is this lack of diligence that the learned District Judge is speaking about? He says, “He (i.e., the tenant) must request a statement of the standard rent in accordance with section 17 of the Rent Restriction Ordinance.” It seems to me that the learned District Judge is not fully con versant with the real objects of section 17 of the Rent Restriction Ordinance. I gather from the first paragraph of page 3 of the judgment that the learned District Judge considers section 17’ as a preliminary step which every tenant should go over before he can establish his liability to pay the standard rent and flO more. There is no “must” about this section. It is only machinery, which the tenant can adopt if he so wishes in case he is in doubt as to whether or not he is paying only what he ought to pay. If the tenant knows what the standard rent is, then there is no need for him to invoke section 17 of the Rent Restriction Ordinance. Even if he does not know and neglects to invoke the said section, he is not estopped from raising the issue as to the standard rent for the first time in an action for arrears.

It is I think by reason of this misconception of the purport and opera tion of section 17 that the learned District Judge went wrong in arbitrarily adjudging payment at the standard rent for six months only and the balance to be paid by El Deeb ‘on the basis of the contractual agreement.

This application of El Deeb is hereby allowed with costs and the cross- application is hereby dismissed. The amount payable under the claim shall therefore be calculated on the basis of the standard rent for the whole period to which this claim refers, i.e., twelve months ending October 1957. The rent for the month of November 1957 was prematurely claimed in the amendment and ought not to have been accepted. For the rent from November 1957 until El Deeb vacated the premises a fresh action has to be brought.

El Deeb is liable to pay £i8o and had already paid £120. There shall therefore be a decree in favour of Tabet for £6o. There shall be no order as to costs in the court below in favour of Tabet because at the time he instituted the suit, i.e., beginning of July 1957, nothing was due and owing from El Deeb.

Furthermore, Tahet is hereby ordered to pay all Deeb’s costs of this application as well as of his application to I tic I lonour the Province Judge, and costs in the District Court.

A. M. Imam I. —I concur.                                     (Application allowed)