(Court OF APPEAL)*

FATMA  BABIKIR v. GAMA IBRAHIM

AC-REV-49-1965

 Principles

·  Land lord and Tenant-Eviction-Rent unpaid and lawfully due-Rent Restriction Ordinance s,11 (a)-All circumstances  must be considered by Court

A Court should not order evictor under Rent Restriction Ordinance, s 11 (a) simply if rent is lawfully due but not timely paid. All the surrounding circumstances of the as must be considered for example whether the tenant is a persistent defaulter and reasons for default.
 

Judgment

Advocate: Bakri Hammed Abdel Hadi…………………….for applicant

Osman El Tayeb J. August 11.1965: -This is an application for revision from the order of Province Judge, Kassala Circuit, dated January 3.1965, dismissing summarily a similar application to him from the decree of defendant (applicant) from house No. 323 Deim Musa Port Sudan Town.

Plaintiff as landlord of the said house claimed possession on the ground that defendant failed to pay rent lawfully due for the month of November 1964, which is Ł s. 3.000 m/ms. The suit was instituted on December 8. And on the next day defendant tendered that same rent, which is payable monthly in arrears. These facts were admitted and the learned District Judge framed one issue as to whether the rent of November was rent lawfully due and not paid at the time of institution so the suit. He ended by deciding that issue in favour of plaintiff and ordered eviction. He relied on labeeb Galdas v. Abdalla El Hassan (1960) S.L.J.R. 115. In this institution of the suit. And the reliance of the learned District Judge was on a dictum that payment after institution of the suit and before decree would have the effecter of barring the relief fro possession. This is a general rule but in my opining, the failure to pay should not be is general rule, but in my opinion the failure to pay should not be taken in isolation from the surrounding circumstances.

The Court must consider, for example whether the tenant has been a persistent defaulter, and if not why he defaulted in the case before it, whether he was prevented by any reasonable cause from payment, Together with the fact  that the default was in repent of one month only, and very soon remedied. In her application fro revision defendant stated that she made some repairs in the premises, and that she was, at the time when the suit was instituted negotiating with plaintiff to set off the rent from the cost of repairs. If this allegation is proved, I think it should be an acceptable excuse for her failure to pay, and an order of possession should not be granted. Although as it appears from the record, that defendant did not mention this question about the repairs, the Court ought to have framed a general issue as to whether in the circumstances  plaintiff was entitled to possession. And evidence must be heard to find plaintiff was entitled to possession. And evidence must be heard to find the circumstance of the default.

For these reasons the application has to be allowed and the case be sent back for rehearing and determination as directed .

Hassan Abdel Rahim P.J. August 11.1965:-I concur.

* Court : Osman El Tayeb J. and  Hassan Abdel Rahim J.