Case No.:

AC-REV-259-196o

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Landlord and Tenant—Standard rent—Former consent decree on rent not a bar to standard rent action

In a prior civil action between the plaintiff and defendant rent was deter. mined by a consent decree although the question of standard rent was not taken up in those proceedings. Plaintiff brought this action for determination of standard rent; defendant argued the question of rent was res judicata.
Held: A former consent decree concerning rent between the parties is not a bar to a subsequent action for determination of standard rent.

Judgment

(COURT OF APPEAL) *

CHARALAMBOS TOFARJDIS v. MELPO AGOROPOULOS

AC-REV-259-196o

Advocates: Henry Riad Sikia for plaintiff-applicant

Kamil Abdel Razik for defendant-respondent

Abdel Mageed Imam 1. June 11, 1960, HC-REV.: —This is an application for revision against the decision of the District Judge, Khartoum, dated April 2, 1960, declaring that the objection raised by defendant- applicant as to the standard rent cannot be maintained in view of the fact that this rent was determined by a former consent decree in CS 5958 between the same parties, and it is therefore res judicata.

I agree with the learned advocate for applicant in his brilliant exposition contained in his application in respect of this point. First, he was right when he pointed out that the provisions of the Rent Restriction Ordinance are applicable notwithstanding any agreement to the contrary. This should be true whether such an agreement receives or does not receive the approval of the court, without, of course, the court going into the merits of the case, hearing evidence and finally determining what is the standard rent. Secondly, the learned advocate was again right when he made the following quotation from Megarry, Rent Acts 20 (9th ed. Bramall 1961):

“Thus, even if a judgment has been delivered on the footing that the standard rent is a particular sum, the tenant may show in sub sequent proceedings that in fact it is a smaller sum, at all events if he did not take the point in the earlier proceedings, and none the less because both the earlier and the later proceedings consisted of formal applications to fix the standard rent.”

It is therefore made very clear that the determining factor is that the question of the standard rent was not up by the tenant in former proceedings.

In this case defendant-applicant agreed that a certain fixed sum was the standard rent, and the plaintiff-respondent accepted this. Neither he nor defendant-applicant can contract out of the Act.

For the above reasons the decision of the District Judge dated April 2, 1960, S set aside and the case is to go back for framing and determining an issue on what is the standard rent.

Defendant-applicant is awarded costs of this application taxed at £S. 1 0.000.

M. A. Hassib I., by authority of the Chief Justice. August 18, 5960: — This application cannot succeed.

The point at issue is well considered and it is whether parties by their own agreement or consent alter the standard rent.

The law on the point is very clear and parties cannot contract out of the law. Artizans Dwellings Co. v. Watiaker 1919 [2 K.B. 301.

The question of standard rent could be subsequently determined if not already decided.

Application therefore be summarily dismissed under Civil Justice Ordinance, s. 176 (1).

Court: M. A. Hassib J.