Case No.:

HC-REV-123-1961

Court:

The High Court

Issue No.:

1962

Principles

·  Landlord and Tenant—Eviction—Rent unpaid and lawfully due—Rent Restriction Ordinance 1953. s. 11 (a)—. All circumstances must be considered by court— Eviction not automatic

A court should not automatically order eviction under Rent Restriction Ordinance 1953, S. ii (a). if rent is not timely paid. All circumstances of the lease must be considered: for example, length of tenant’s occupation, previous default in payment.

Judgment

(HIGH COURT)

HEIRS OF NUR EL DAYEM MAHMOUD v. EL HAG MOHAMED

SALAH EL DIN

HC-REV-123-1961

Advocate: Siddik Abdel Halim Siddik ... for plaintiff-applicant

Abdel Mageed Imam I. May 16, 1961: —This is an eviction case in which plaintiff-applicant was refused the grant of such order, though it was admitted two months’ rent was in arrears and paid after the suit was instituted, on the ground of opportunism on the part of the said plaintiff- applicant in instituting these proceedings less than a week after the arrears had fallen due. The learned District Judge found that defendant-respondent failed to pay the rents because his mother had died and said that though this may not amount to a legal excuse yet it may amount to moral justification.

I doubt very much the reasoning of the court below. On hearing the parties defendant-respondent said the reason why he did not pay the rent was that his mother had died and that he had to leave for Nyala. He added that before his departure he went to applicant’s place to pay the rent but did not find him. All these reasons may not amount to legal excuse. But respondent also said that he had been tenant for the last five to seven years and this was his first time to default.

The facts alleged here by the said respondent were denied by applicant. He said respondent had been in occupation for only two years, that he was a bad tenant and that he was to sue him for irregular payments.

As I see it this case should go back for retrial. I do not think chat Rent Restriction Ordinance, s. ii (a), is imperative, i.e., that it is obligatory on the court to grant an order of eviction once rents or any part thereof became lawfully due and unpaid. The opening of this section reads:

“In any suit for the recovery of possession of any premises the court shall not grant such relief unless ‘

It is observed that the section does not say:

“The court shall grant such a relief” (and then innumerate the circumstances to which it should be applicable).

Moreover and in a chain of precedents it has been held that a court should not automatically grant the relief claimed in such case by reason only of the defendant’s default in paying the rent, and that all the circumstances must be taken into consideration, e.g.. the length of the period of the tenant’s occupations whether he was a bad tenant and continuously defaulted in paying his rents. In such case the court allows the tenant relief against forfeiture of the tenancy and refuses to grant the landlord an order for recovery of possession of the demised premises because of the breach of the obligation to pay rents.

Accordingly the application is allowed and the case should go back for retrial by the court below which should take additional evidence to clarify the circumstances in which defendant had defaulted and to take all these into consideration when deciding whether or not an eviction order should be granted.

No order as to costs.

Editors’ Note. —Accord, Abdel Wahab Mohamed Mekki KhoJiI V.

E. Zervos, AC-REV-119-19S9 (1960) S.L.J.R. 43, 4—4 (M. A. Abu Rannat

C.J).