Principles

·  LANDLORD AND TENANT- Notice of eviction - Fraudulent misrepresentation of landlord’s need for premises not a crime under Rent Restriction Ordinance 1953, s. 23 (1)

·  .JURISCTION - Civil Courts - Ouster of jurisdiction - Criminal penalty does not necessarily preclude civil remedy.

A landlord’s fraudulent notice to a tenant to quit premises, falsely stating that he needs them for his own use under Rent Restriction Ordinance 1953. s.11(d) does not constitute a crime under Rent Restriction Ordinance 1953, S. 23(1), which provides criminal punishment for a false or misleading notice issued under Rent Restriction Ordinance 1953, s. 9 (notice of intention to increase rent); therefore a Civil Court is not ousted of jurisdiction to try a tenant’s suit for delivery of possession and damages due to fraudulent notice to quit.
Obiter dictum: Even if Rent Restriction Ordinance, s. 23 made criminal a false and misleading Section 11(d) notice, the aggrieved tenent would not necessarily be deprived of his civil remedy. Butler (or Black) v. Fife Coal Co. Ltd., 1912 A.C.149.

Judgment

Advocate: Albert M. Bidjikian …………………for applicant.

 R. C. Soni, .J., August 12, 1957:- This is an application in revision to revise the order of the learned Judge of the High Court, who in HC-REV 140-1957 by his order dated May 21, 1957 confirmed the order of the trial Judge, who in CS-2l0-1957 had dismissed on April 20, 1957 the plaintiff’s Suit.

The facts are simple. The Plaintiff’s allegation is that he was the tenant of the respondent and was occupying a house taken from the respondent at a monthly rent of £S.9. and that the landlord (respondent)

*Court: M. A. Abu Rannat, C. J., and R. C. Soni J.

sent him a notice under Rent Restriction Ordinance 1953, s. 11(d) saying that he wanted the premises for his own use. Taking this notice as stating true facts, the plaintiff vacated the premises, and had to take other premises where he had to pay £S.30 as monthly rent. The plaintiff alleges that the notice served on him did not represent true facts, that the landlord (respondent) never needed the premises for his own use, and had played a trick on him. The respondent never occupied the premises vacated by the plaintiff, but not many days after the vacation, the respondent rented the premises to somebody else at a rent of £S.30 a month. The plaintiff came to the civil court with his grievance that he would not have vacated the premises but for fraudulent misrepresentation of facts to him, and that as a consequence thereof he had had to take premises at a considerably higher rent of £S.30 a month, resulting in pecuniary loss to him. He prayed for possession being delivered to him of the old premises at the old rate of rent, and for a sum of £S.252 as damages suffered by him as explained above.

The defendant denied the allegations, and further pleaded that the Civil Court had no jurisdiction to entertain the suit, as the Rent Restri tion Ordinance had provided the remedy under Section 25 by prosecution before a Magistrate.

The learned Judges of the Courts below dismissed the plaintiff’s suit without going into the merits of the case, holding that the plaint, disclosed no cause of action. It appears to us that the plaintiff is entitled to be heard by the Civil Court and to lead his evidence to prove that what he has alleged is true. For it is undoubtedly correct that if a man has by trick or misrepresentation or fraud been deprived of his tenancy, a Civil Court will, after examining his evidence, give him an appropriate relief. But the plaintiff cannot be shut out in limine and his case dismissed on the ground that he has no cause of action. He undoubtedly has. The only point to determine is whether his allegations are correct, if so how far, and what is the relief he is entitled to. This is undoubtedly the function of a Civil Court.

We asked learned counsel for the landlord (respondent). how he said that the Civil Courts bad no jurisdiction. His reply was that Section 23 had created Criminal Jurisdiction in a Magistrate which ousted the jurisdiction of the Civil Court. When asked to explain on what clause of Rent Restriction Ordinance 1953, s.23 he relied, learned counsel referred us to clause (1). Rent Restriction Ordinance 1953, s. 23 reads as follows:

“The following offences under this ordinance may be tried, by a Magistrate of the second class or any higher Court -

(1) if a notice served in accordance with section 9 of this ordinance contain any statement or representation which is false or misleading in any material respect, the landlord, unless he prove that the same was made innocently and without intent to deceive, shall be liable to a fine not exceeding £S.100.

(2) If any person require any payment or the giving of consider ation in contravention of section 15 of this ordinance, he shall be liable to a fine not exceeding £S.100 and if he be convicted the Court by which he is convicted may order the amount paid or the value of the consideration given to be repaid to the person by whom it was made or given but such order shall be in lieu of any other method of recovery prescribed by this ordinance.

(3) If a landlord, when so requested by the tenant, fails without reasonable excuse to supply within 14 days a written statement of the standard rent as required by section 17 of this ordinance or supplies a statement which to his knowledge is false in any material respect, he shall be liable to a fine not exceeding £S.50.

(4) If a tenant ask or receive the payment of any sum or the giving of any other consideration contrary to section 19(3) of this ordinance, he shall be liable to a fine of £.s.50.

It will be noticed that clause (I) refers to a notice served in accordance with Rent Restrction Ordinance, s. 9. The notice In the present case was served under Rent Restriction Ordinance, s. 11(d), and not under Rent Restriction Ordinance, s 9 Any contravention of the provisions of the other sections mentioned in clauses (2) (3) or (4) of Rent Restriction Ordinance, s. 23 is not alleged. Learned counsel for the respondent admitted this, but argued that the plaintiff alleged a statement or representation made to him which was false or misleading and that it did not matter whether the notice was served under Rent Restriction Ordinance, s. 9 or s. 11. The argument is quite fallacious. Criminal offences are not created by analogy. The legislature chose To take a serious view about certain specified kinds of behaviour, and made them into offences. If a notice under Rent Restriction- Ordinance, s. 11 had been mentioned in Rent Restriction Ordinance, s. 23, the argument for the respondent needed examination. For even then it is Not always true that a particular person complaining of injury and claiming damages by the non-observation of certain prescribed rules is not entitled to go to a Civil Court.

In Butler (or Black) v. Fife  Coal Co. Ltd., 1912 AC. 149, 165-166, Lord Kinnear said:

“          If the duty be established, I do not think there is any serious question as to the civil liability. There is no reasonable ground for maintaining that a proceeding by way of penalty is the only remedy allowed by the statute. The principle explained by Lord Cairns in Atkinson v. Newcastle Waterworks Co. and by Lord Heischell in Cowley v. Newmarket Local Board.solves the question. We are to consider the scope and purpose of the statute and in particular for whose benefit it is intended. Now the object of the present statute is plain. It was intended to compel mine owners to make due provision for the safety of the men working in their mines, and the persons for whose benefit all these rules are to be enforced are the persons exposed to danger. But when a duty of this kind is imposed for the benefit of particular persons, there arises at common law a correlative right in those persons who may be injured by its contravention. Therefore I think it is quite impossible to hold that the penalty clause detracts in any way from the prima facie right of the persons for whose benefit the statutory enactment has been passed to enforce the civil liability. .I think this has been found both in England and Scotland in cases in which the point was directly raised, the case of Groves v. Lord Wimborne in England, and Helly V. Glebe Sugar Refining Co. in Scotland.”

It is not necessary to pursue this matter in this case. No proceedings by way of penalty are prescribed under Rent Restriction Ordinance, s. 23, for a notice served under Rent Restriction Ordinance, s. 11.

Learned counsel beyond raising this legal objection had nothing further to urge. He held that the Civil Courts have jurisdiction to try this case, and that the plaint does disclose a cause of action. It will be for the trial Court to frame proper issues, and to allow the parties to lead their evidence after which the Court must determine whether the plaintiff’s allegations are true in fact, and to what relief the plaintiff is entitled.

We accordingly set aside the first mentioned orders of the Courts below dated May 21, 1957 and April 20, 1957 and also the decree dismissing the plaintiff’s suit. We remit the case to the Court of the District Judge attached to the High Court, to be tried in accordance with law. The respondent will pay the petitioner’s costs in both Courts which we assess at £S.l7.

M. A. Abu Rannat, C. .J., August 12, 1957:- I concur.