Principles

·  LANDLORD AND TENANT — Standard rent — New premises — Rent Restriction Ordinance 1953, s. 4 (b) determines permissible rent regardless of whether rent was “contractual” or fixed and later Increased.

·  LANDLORD AND TENANT— Architect — Cross-examination  of architect filing certificàte of value of premises not barred by Rent Restriction Ordinance 1953, s. 17.

·  CIVIL PROCEDURE — Cross of architect filing certificate of value of premises not barred by Rent Restriction Ordinance 1953, s. 17.

·  EVIDENCE— Cross.examination of architect filing certificate of value of premises not barred by Rent Restriction Ordinance 1953, s. 17.

The tenant, defendant of a shop in a new building owned by plaintiff respondent took over an adjacent shop in the same building, at which time the land lord increased the rent on both shops. Subsequently tenant wrote to landlord requesting a declaration of the standard rent; upon landlord’s failure to comply tenant refused to pay more than what he considered to be the standard rent. During the trial of landlord’s action for arrears, tenant was denied the right to cross the architect who submitted a certificate of the value of the premises under Rent Restriction Ordinancc 1953. s. 17.
Held: (1) Whether an increase of rent on a part of new premises upon the tenant’s leasing of an additional part of the same premises be considered a new contract or a case of rent fixed and later increased, the rent is still to be governed by the standard rent as defined in Rent Restriction Ordinance 1953, s. 4(b).
(II) The tenant’s procedural right to cross-examine an architect filing a certificate in evidence is not precluded by Rent Restriction Ordinance 1953, s. 17, where the statute contains no express denial of such right.

The tenant, defendant of a shop in a new building owned by plaintiff respondent took over an adjacent shop in the same building, at which time the land lord increased the rent on both shops. Subsequently tenant wrote to landlord requesting a declaration of the standard rent; upon landlord’s failure to comply tenant refused to pay more than what he considered to be the standard rent. During the trial of landlord’s action for arrears, tenant was denied the right to cross the architect who submitted a certificate of the value of the premises under Rent Restriction Ordinancc 1953. s. 17.
Held: (1) Whether an increase of rent on a part of new premises upon the tenant’s leasing of an additional part of the same premises be considered a new contract or a case of rent fixed and later increased, the rent is still to be governed by the standard rent as defined in Rent Restriction Ordinance 1953, s. 4(b).
(II) The tenant’s procedural right to cross-examine an architect filing a certificate in evidence is not precluded by Rent Restriction Ordinance 1953, s. 17, where the statute contains no express denial of such right.

The tenant, defendant of a shop in a new building owned by plaintiff respondent took over an adjacent shop in the same building, at which time the land lord increased the rent on both shops. Subsequently tenant wrote to landlord requesting a declaration of the standard rent; upon landlord’s failure to comply tenant refused to pay more than what he considered to be the standard rent. During the trial of landlord’s action for arrears, tenant was denied the right to cross the architect who submitted a certificate of the value of the premises under Rent Restriction Ordinancc 1953. s. 17.
Held: (1) Whether an increase of rent on a part of new premises upon the tenant’s leasing of an additional part of the same premises be considered a new contract or a case of rent fixed and later increased, the rent is still to be governed by the standard rent as defined in Rent Restriction Ordinance 1953, s. 4(b).
(II) The tenant’s procedural right to cross-examine an architect filing a certificate in evidence is not precluded by Rent Restriction Ordinance 1953, s. 17, where the statute contains no express denial of such right.

The tenant, defendant of a shop in a new building owned by plaintiff respondent took over an adjacent shop in the same building, at which time the land lord increased the rent on both shops. Subsequently tenant wrote to landlord requesting a declaration of the standard rent; upon landlord’s failure to comply tenant refused to pay more than what he considered to be the standard rent. During the trial of landlord’s action for arrears, tenant was denied the right to cross the architect who submitted a certificate of the value of the premises under Rent Restriction Ordinancc 1953. s. 17.
Held: (1) Whether an increase of rent on a part of new premises upon the tenant’s leasing of an additional part of the same premises be considered a new contract or a case of rent fixed and later increased, the rent is still to be governed by the standard rent as defined in Rent Restriction Ordinance 1953, s. 4(b).
(II) The tenant’s procedural right to cross-examine an architect filing a certificate in evidence is not precluded by Rent Restriction Ordinance 1953, s. 17, where the statute contains no express denial of such right.

Judgment

Advocates:

Mubarak Zarroug .………………….. for applicant

 Abdin Ismail …………………. for respondent

Babiker Awadalla, J.  November 4, 1957 :- This is an application’ against the decision of the Honourable Judge of the High Court ,dismissing summarily an application for rivision of’ the decree of the District Judge.’ Khartoum, ordering defendant-applicant in the original suit to pay a sum of £S.391 .000m/ms. as arrears of rent of shops Nos. 10 and 11 in Plot 1, Block 2 D., West Khartoum, registered in the name of Helen Adam Papadam the respondent. The plot in question was bought in 1946 by the respondent’s deceased husband for a sum of IS.7, 500.000m/ms. After demolition of old buildings thereon the purchaser in 1948 erected on the site a block of 32 shops and stores.

On August 28, 1951 the respondent’s husband and legator let out shop No. 10 to defendant by virtue of a written agreement for one year commencing September 15, 1951. “with the understanding that if neither party notified the other two months before the expiration of the first or any subsequent year of the contract of his intention to the contrary, the lease was to be considered.as renewed for a further year.” The rent was agreed to be £S. 12, payable in arrears.

On that same date the adjoining shop No. 11’was let out to a certain lbrahim Mohamed Khalil Kashif on the same terms but commencing September 1, 1951. It would seem that ‘this latter tenancy was surrendered by the tenant at the end of the second year and applicant agreed with the lessor, to have this shop as well in order that he might amalgamate the two shops together by removing the partition wall. In his letter dated July 1, 1953 the lessor agreed to the amalgamation but notified applicant that the rent of both shops was to be increased by £S.3 each from September 1, 1953. Applicant replied by letter dated July 9, 1953 raising no objection to the increase and seems to have gone into possession paying at the increased rate until the end of January, 1954.

In February of that year all, or almost all the tenants addressed a written request to the lessor for a declaration as to their respective standard rents in accordance with Rent Restriction Ordinance, s. 17. The lessor failed to comply with this request, and about a year after, i.e., in January 1955, applicant, through his advocate Malka, wrote to the lessor reminding him of his failure to comply with the requirements of the joint and adding that until such compliance, he would only be paying £S.10 per shop, which he considered to be the standard rent. .In this same letter he alleged that according to that rate (i.e., what he considered to be the standard rent). he had made an overpayment of £S.80, which was, in his opinion, sufficient to cover the rent due until the end of May.

Some time before June that year the lessor died, and on June 2, 1954 advocate Guma’a, on behalf of the estate, wrote to applicant reminding  him of his failure to pay the rent from February to May and warning him of legal proceedings in case of failure to pay within one week. It would seem that after May, 1954 defendant continued to pay £S.20 per month until August 30, 1956, when these proceedings were commenced for recovery of arrears amounting to £S.391 and eviction. No particulars are given in the plaint to show how this figure was arrived at, and, if the assumption is correct that applicant made no default in the payment of £S.20 monthly, then the claim ought to have been not more than £S.3l0 (i.e. 31 months arrears at £s.10). In those proceedings the respondent (plaintiff in the Court below) was represented by advocate Abdin and the applicant by advocate Riad.

On November 6, 1956 plaintiff’s advocate filed a certificate by architect Stefanides showing (a) that the value of a square metre in this plot was £S.30 (b) that the value of the buildings was £s.48,000 and (c) that the standard rent was accordingly LS.45.113m/ms.

On November 25, 1956 defendant’s advocate filed his reply, denying the correctness of the above assessment and alleging that plaintiff was not entitled to possession on the further ground that he had failed to make the declaration requested in May, 1945. The Court framed issues appearing at page 11 of the proceedings, and hearing was adjourned to December 9,1956.

On that date defendant’ advocate applied for an order of discovery of documents relative to construction and this application was resisted by plaintiff and rejected by the Court after hearing on oath a certain Ali el Zein Ali, the estate agent of plaintiff.

Hearing was resumed on December 23, 1956 and one would have expected that plaintiff, who had the right to begin, would bring some evidence in support of his contention that the rent he claimed was within the maximum permitted by the law. The architect who prepared the estimates could have given such evidence. This was not done, and the Court proceeded to hear the defendant on oath. Defendant also brought three other witnesses, one of whom was an engineer who could give no valuable evidence. That same day defendant’s advocate applied for a valuation by the Acting Registrar and an order to that effect was made by the Court. A letter was sent to the Registrar on January 2, 1957, and he replied on February 28, 1957 giving the value of a square metre as £S.7.500m/ms.

On February 27, 1957 defendant’s advocate supplied the Court with particulars on valuation of the buildings, and on March 10, 1957 he applied to the Court to hear the engineer, who prepared the particulars, but the Court refused to hear him and immediately proceeded to give judgment for the amount claimed with the proviso that if the amount was not paid within seven days from the date of the decree, the defendant had to give up possession. This decision was affirmed by the High Court on revision.

Before us, it was contended by the learned counsel for applicant that the decision of the District Judge is wrong in law in that:

(1)     It tried to create a distinction between what it called the “contractual” rent and the standard rent and based that distinction on the fact that where the tenancy is contractual, the tenant is estopped from denying that the rent he contracted to pay was the standard rent; and

(2)   . It passed a decree without giving the defendant any chance to cross-examine the architect whose certificate of assessment was received in evidence contrary to accepted rules of proof.

While agreeing that the distinction between contractual and. standard rent has no legal basis, the learned counsel for the respondent submits that this is not a case where rent .was fixed and later increased, but that it was a new contract made before the Ordinance and fixing the rent at £S.15 per shop.

Further, he submits that a certificate by an architect under Rent Restriction Ordinance 1953, s. 17 is admissible in evidence without the necessity of having to call the architect himself before the Court.

It being admitted that the premises in question are new buildings with in the meaning of the Rent Restriction Ordinance 1953, we regret we are unable to follow the argument of the learned counsel for respondent that the rent in this case was fixed by a new contract. Whether the rent was raised from £S.12 to £S.15 or whether the parties purported to make a new lease altogether, in which they fixed such rent at £S. 15, the purposes of the Ordinance cannot be allowed to be defeated, end the criterion for arriving at the rent legally payable is governed by Rent Restriction Ordinance 1953, s. 4(b)

Nor can we see how a certificate by an architect may be relied on in Court proceedings without calling the architect before the Court and affording the tenant an opportunity of cross-examination. Rent Restriction Ordinance 1953, s. 17 does not say that such certificate is  per se admissible in evidence without the need for further proof and cannot therefore be interpreted in a manner detracting from accepted notions of justice or inconsistent with the primary rules of admissibility of’ evidence.

With the agreement of both parties, we are therefore referring this case back for rehearing. Not only is it necessary for the Court to hear the evidence of the architect who has given the certificate under Rent Restriction Ordinance, s. 17 (if the plaintiff still wants to rely on his estimates) but it must also afford the defendant all opportunity to. adduce similar exper evidence in rebuttal. The difficulty about proving the standard rent in respect of new premises is that the regarding construction and value of the land must relate to the time of building, and it is the duty of the court constantly to bear this in mind not only when examining the witnesses but also when weighing their evidence and judging of their means of knowledge on a matter where the time element is an important factor. Without in any way attempting to limit the discretion of the Court in arriving at a decision, we think that in a case of this sort where the land was purchased so shortly before construction, the purchase price of the land affords an excellent guide for determining its value at the date on which construction began.

Again, as the increase of £S.15 was in this case imposed after July 1, 1953. the court must consider the impact on the claim of Rent Restriction Ordinance 1953, s. 10,which says:

“If at any time after 1st July, 1953, the rent of any premises has been or be increased otherwise than as permitted, or by more than is 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.”

This section prescribes two conditions:

(a)  the increase must be made in circumstances allowed by the Ordinance, and

(b) must be for an amount which the Ordinance permits.

Another limitation on permitted increase is imposed by Rent Restriction Ordinance 1953, s. 8, which reads:

“Nothing in this Ordinance shall be taken as authorising

(a) any increase of rent except for a period during which the landlord was, or but for the provisions of this ordinance would have been or would be, entitled to obtain possession of the premises; or

(b) any increase of rent by reason merely of the fact that there has been a change of tenants.”

In so far as shop No. 10 is concerned it would be for the Court to consider whether plaintiff was entitled to impose this increase in view of Rent Restriction Ordinance 1953, s. 8 (a) and whether the circumstances in which shop No. 11 was let out to defendant justify such an increase under Rent Restriction Ordinance 1953, s. 8 (b). As regards shop No. 10, the inquiry will certainly deal with the point whether the lease of August’28. 1951 was or was not duly terminated before the parties purported to enter into a new agreement in September, 1953. We are of the opinion that the Court would be assisted in its duty of arriving at a decision if the issues were framed s follows:

(a) Was the rent of £S.15 on either shop within the standard rent for new buildings?

(Onus on plaintiff)

(b) If so, was the increase of £S.3 in consonance with the provisions of Rent Restriction Ordinance 1953  ss 8 and 10?

(Onus on plaintiff)

(c) If the answer to either (a) or (b) above is in the negative, is the original rent of £S.12 on either shop in excess of the standard rent for new buildings?

This application is therefore allowed and costs shall follow the event in the court below.

M. A. Abu Rannat , C.J, November 4, 1957: — I concur.