(COURT OF APPEAL)*

EL TAYEB OSMAN EL HADARI v. YOUSIF D EL GAK OMRAN

AC-REV-666

 Principles

·  Landlord and Tenant—Standard rent—Burden of proving standard rent lies on the landlord

·  Landlord and Tenant—Standard rent—Previous judgment determining standard rent not in accordance with the provisions of the Ordinance—Res judicata does not apply

(i) According to the Rent Restriction Ordinance and to our practice, the burden of proving the standard rent of a premises lies on the landlord.

(ii) Rent Restriction Ordinance lays down what rent a tenant should pay for a premises controlled by the Ordinance, therefore a tenant is not stopped by previous judgment determining the standard rent otherwise than in accordance with the provisions of the Ordinance, because the doctrine of res judicata does not apply to statute where there is a statutory provision to be followed.

Judgment

Advocates: Sif El Dawala Khider Omer for applicant

Amin Baso. . - For respondertt

El Fatih Awouda J. September 13, 1966: —Respondents on July 16 1962, instituted CS-1241-1962 against applicant in Wad Medani District Court wherein they claimed recovery of £S.140 being rents due on shop No.547 Block 31, Wad Medani, and possession. The contractual rent was £S.20 a month. Applicant (defendant in the original suit) contended that the contractual rent was much above the standard rent which to his belief was £S.7. Subsequently issues were framed, the first one being whether the standard rent was £S.7 and the court threw the burden of proving that issue on applicant. Thereafter respondent opened his case and adduced his evidence. All that he had to say with regard to the rent was this: “The rent agreed upon was £S.20 a month.” Applicant gave a list of the witnesses he wished to be called for defence and they were summoned to appear on August 11, 1963. On August 8. 1963, the court received a telegram sent by applicant from Khashm El Girba saying that he would not be able to attend the hearing because of the heavy rains. On the date of hearing an advocate appeared on behalf of applicant s advocate and applied to have the suit adjourned as pplicant s advocate was at the time away for some compassionate reason The court refused to adjourn and eventually passed a decree in favour of plaintiffs in the whole claim.

It has been the practice of our courts to cast the burden of proving whether the rent, which a landlord is seeking to recover, is the standard rent on the landlord. To my mind the reason for that is because the rent to be charged is governed by statute and because by reading the provisi the Rent Restriction Ordinance the full information on which the standard rent is calculated is in most cases within the exclusive know ledge of the landlord. By reversing the situation the learned District judge has undoubtedly changed the course of these proceedings to the d of applicant. Had the burden of proving the standard rent beenproperly thrown on respondent he would have for certain, lost his claim with regard to accumulating rent either wholly or partially if he were to have no evidence besides that which he had adduced. Applicant did not however, challenge that decision.

On March 5, 1964, respondent instituted CS-16-1964 against the same applicant claiming recoveiy of ES 400 bein rents due for the period from July 1962 to February 1964 the period between institution of CS-1241-1962 date on which applicant vacated the premises A rent as being above the standard and again the court committed the same mistake of asking the tenant to prove that the standard rent was only Es.7 and not £s.20, But this time respoten the plea that the issue of the standard rent was res judicata as it has already been heard and finally decided in a previous suit between the sme parties in respsct of the same subject-matter. The l DI JUd á plea aiid’ gave judgment for respondent on the basis that standard rent was £s.20. An application for revision therfrom was summarily dismissed by the Province judge up 1 Df He comes this application.

The only ground for revision in the application to this court is whether the issue of the standard rent was heard and finally decided in CS-1241-1962 and therfor res judicata under civil Justice Ordinance, s. 40.

Ithink this application succeeds. The purpose of rent Restriction Ordinance is the protection of the tenant. The law lays down what rent should the tenant pay for premises controlled by the Ordinance, and the parties cannot contract out of its provisions. This leads me to say that the tenant cannot lose the right, of contesting the rent in subsequent proceedings merely because it was raised—but not taken—in previous proceedings because to say otherwise would defeat the purpose of the Ordinance. In Grif v. Davies [1943] K.B. 618 it was held that: “not withstanding that the tenant of a controlled house has been an unsuccess ful defendant in proceedings of arrears of rent and at the time of such proceedings made no claim under section is of the Act of 1923 to have the standard rent ascertained with a view to applying for a reduction of the contractual rent if it was more than the standard rent, the tenant is entitled at ajiy subsequent time to make such a claim, for where there is a statutory prohibition or direction it cannot be overridden or defeated by the judgment between the parties, and the scheme of the Act is to prevent a tenant from coming to any agreement or doing anything which would increase the standard rent”: Blundel, Rent Restriction Cases, No. 423 (3rd ed., 1955).

More to the point is the decision in Slaney v. Garrard (1950) 100 L.J. News, where it was held “that determination of the recoverable rent of premises under section is of the i 923 Act, even though a previous deter mination was by the court of competent jurisdiction upon an identical dispute between identical parties upon the identical subject-matter” (see Blundell, Rent Restriction Cases, No. 975 (3rd ed., 1955).

In the result this application is allowed with costs and the decree of the learned District Judge is hereby set aside for the purpose of trying the issue of the standard rent in the light of this judgment.

Osman El Tayeb J. September 13, 1966: —I agree. I have nothing useful to add.