Principles

·  LANDLORD AND TENANT — Rescission of tenancy agreement — Landlord’s acceptance of rescission by conduct.

A tenant is not liable for  arrears where he was never in occupancy, but had sent the landlord a letter rescinding the tenancy a and the landlord was accepting rent from a third party occupying the premises under its own firm name.

Judgment

Advocates: Abdalla Negeib ………………………for applicant

Mohamed Ziada……………………………….. for respondents

M.A . Abu Rannat. C J . July 11,1961 :— This is an application for revision against the decision of the Judge of the High Court. Khartoum, summarily dismissing an application for revision by the present applicant and plaintiff in Khartouni District Court, CS-I 313-1958.

The plaintiff is the owner of a shop forming part of Plot No. 9. Block 2  F.W., Khartoum. On January 1, 1957. he let the shop in question to one Osman Rashid. vide a written agreement Osman signed  the tenancy agreement on behalf of Bob Agency (first defendants) which was registered as a partnership in March. 1956. Dr Mishaal the second defendant. signed the agreement as a gourantor the instrument was written as signed on January 1,1957 in the clinic of doctor mishaal and in the presence of Hassaballa selim third defendant the plaintiff did not deliver the keys on January 1,1957 and he also took the written agreement with him for the purpose of putting on in the number of the shop on January 1,1957 hassaballa Selim went to the plaintiff in his place of business and paid him advance the rent for two months by a cheque drawn by hassaballa himself and took over the keys.

A few days after the execution of the tenancy agreement osmand rashid and hasaballa selim disagreed and the former as representative of bob agency told the plaintiff that he was no longer bound by the agreement

* court : M.A. Abu Rannat C.J. and A.R. El Nur P.J.

on the same day, Hasaballa Scum in his capacity as representative of Sam Agency approached the plaintiff with a view to making a new agreement with him. The plaintiff asked Hasaballa to produce a guarantor and Hasaballa mentioned the name of advocate El Rashid El Taher as the guarantor. No guarantor was produced, and it seems the plaintiff held the Bob Agency still responsible under the contract.

Bob Agencs never occupied the shop, while the Sam Agency was in occupation of the shop from the date of agreement, January 2, 1957, until the date of its vacation at the end of June, 1959. On April 25, 1957, Bob Agency sent a letter to plaintiff informing him that the agreement between hem was terminated. The plaintiff did not reply to that letter. Hasaballa Scum has been paying the rent in the name of Sam Agency, while the plaintiff was issuing receipts in the name of Bob Agency. On January 4, 1957, Doctor Mishaal, the guarantor, left the Sudan for Europe and did not return until February, 1958. The evidence shows that plaintiff visited the shop and saw that it was occupied by Sam Agency.

These facts are accepted by both parties.

T          his case was well argued by the advocates for both parties. Advocate Abdalla Negib. appearing for the plaintiff, contends that the first defendants, the Bob Agency, renounced the agreement, but the plaintiff treated the agreement as still operative, and when the Bob Agency failed to perform heir agreement by failing to pay the rent due from them, he held them reponsible for the rent and brought the action to recover the arrears of rent. Advocate Mohamed Ziada, who appeared for the first and second defendants, Bob gency and Doctor Mishaal, contends that there was a rescission if the original contract by agreement of both parties, and that a new agreement between the plaintiff and first defendants and Hasaballa Selim as agent of Sam Agency was substituted for the first agreement.

Let us see if there was a rescission as is contended by advocate ‘ Ziada. An agreement to rescind a contract may be inferred from the conduct of the parties, where such conduct shows that it was the intention of both parties to abandon the contract,

On April 25, 1957, Bob Agency sent a letter to plaintiff to the effect they were no longer bound by the contract; in other words they informed him that they repudiated the contract. The plaintiff admits that he received that letter, but he did not reply to it. In that letter Osman Hashim for Bob Agency informed the plaintiff that he (plaintiff) agreed to let the shop Sam Agency and that he knew Sam Agency, who were represented By Hasaballa Selim, were Occupying the shop and that Bob Agency had no relation whatsoever with Sam Agency.

It is in evidence that Hasaballa Selim was paying the rent in the name Sam Agency but that the plaintiff was giving receipts in the name of Bob Agency, and that when Hasaballa asked the plaintiff to issue the receipts in the name of Sam Agency, the plaintiff replied that he had told his clerk to do so, but the clerk was always forgetting to make the receipts in the name of Sam Agency. It is further proved that plaintiff visited the shop several times and saw on the door the name, “Sam Agency.”

In my view the evidence proved that there was a rescission of the contract between plaintiff and first defendants. and a new agreement between plaintiff and third defendants.

It is common ground that the original contract is one for which no writing is required by law and it may therefore be altered or rescinded by an oral agreement whether the contract was in writing or not.

On receipt of the letter dated April 25. 1Q57 by the plaintiff, the plaintiff was bound to reply. Instead of replying the plaintiff acted on it by receiving the rent from Sam Agency and seeing them occupying the premises. His conduct no doubt shows that he looked to Sam Agency as the tenants. Even when they started to default in paying the rent, he approached then to vacate the premises. Only when he saw that they were in solvent did he look to Bob Agency and the guarantor.

There is no dispute about the arrears of rent. This application is dismissed with costs.

A.R. El Nur, P.J., July 11. 1961:— 1 concur.