. Principles

·  LANDLORD AND TENANT—. Eviction — Alternative accommodation Improvements — Must be suitable for tenant’s business.

·  LANDLORD AND TENANT — Use of premises — Any purpose not prohibited by lease.

(i) In order to comply with Rent Restriction Ordinance 1953, s. ll(g) (iii), land lord must show dwellings suitable for the business purposes for which tenant has been renting the premises required for improvement.

(ii) A tenant may use premises for any purpose not prohibited by the lease

Judgment

Advocate: Abdel Rahman Yosif …… for defendant-applicant

Babjker Awadalla, J., December 16, 1963. :— I am of opinion that this application be allowed and case sent back for a rehearing with a view to clarifying the following two points

(i) whether temporary alternative accommodation was in fact available, and

(ii) if so, whether it was of such a nature that it would have been unreasonable for applicant to refuse.

And these are the two points which the Honourable Judge of tlhe High Court compendiously referred to as “availability” and “suitability”

As regards point (I)   the alternative accommodation must firstly be vacant at the time it is offered or must be vacant on the date the tenant is required to give up possession of the premises occupied by him, and secondly the owner of that alternative accommodation must be prepared to grant a tenancy thereof for the required time. Evidence for respondent before the learned District Judge discloses that respondent was taken around to be shown a few houses but there is nothing on the face of the record to show that the owners of those houses were proved to have been prepared to let them out.

As regards point (ii), I believe the question of suitability of the alternative accommodation must be examined in the light of the object for which the premises are intended to be used. This in turn would depend upon

* Court M. A. Hassib, J. and B. Awadalla, J.

the use to which the premises of which possession is required wet subjected. In the present case, the premises sought to be recovered are used by applicant as a Pension. the Honourable Judge of the High Court refused to consider this point as relevant because the original tenancy did not contain a covenant authorising use as a Pension. In my view, applicant is entitled to use the house as a Pension, so long as there is nothing in her original tenancy to prevent it. In this respect, I would like to refer to this Court’s decision in Mustafa Kamal Rashid v. Joseph Tobet, AC-REV-104 1958. In that case the landlord sought eviction of the tenant on the ground that the latter was using the house as an hotel and this Court said:

            The law on the point is that a tenant is entitled to use the premises in any manner not prohibited by the provisions of the lease. In the present case there is nothing to show that the agreement imposed upon the tenant any obligation not to use the house as an’hotel”.

The learned advocate for respondent contends that in considering the suitability of alternative accommodation, the business aspect of the matter should be ignored altogether, following the rule in Middlesex Council v. Hall (1929) 2 KB. 110.

My Honourable colleague in the Chair pointed out that this may be true in England where business premises are not the subject of rent restric tion. I entirely agree with him, at any rate in so far as the case cited is concerned, and this would be apparent on a reading of that case referred to by the learned advocate,- for it was tried under the Increase of Rent and Mortgage Interest (Restriction) Act 1920 which, at that time was confined in its operation to dwelling houses. Talbot, J., delivering the judgment of the Court, said “the protection of the Act of 1920, as it operated when the section which we are considering [ section 5(1) (e)] was introduced into it by the Act of 1923, was in like manner confined to dwelling houses...”

It would not therefore, in my view, be correct to rely on an English precedent in so far as this point is concerned. In the rehearing, the Court should give due consideration to the fact that applicant is using the house as a Pension, and there must be evidence that the houses offered to her were sufficiently adequate for the purposes of her present business requirements.

Costs of this application shall abide the event.

M. A. Hassib, J., December 16, 1963:— I concur.

Editors’ Note: In Mrs Kainel Rashld v. Joseph Tabet AC-REV- 104-1958 (Babiker Awadalla J cited above, the - Court further stated: Quite apart from the question whether the landlord’s agent agreed to the use of the premises as a hotel or otherwise, I entirely agree with the view of the learned counsel for, the tenant that Rent Restriction Ordinance, s. 20(1) is not applicable. The section prohibits assignment, subletting or otherwise parting ‘with the possession of the premises or any part thereof without the consent of the landlord in writing.’ Residents in a hotel are neither assignees nor sablessees nor have they possession of the rooms which they occupy. They are merely licencees, and as such their occupa tion of the premises does not require the consent of the landlord.”