(HIGH COURT)

HUSSEIN KHALIL v. RAMSIS AYYAD

HC-CS.381-1959

Principles

·  Landlord and tenant -- Res judicata—Consent decree for arrears of rent—Standard rent accepted ---Tenant estopped to attack judgment while relying on it against suit  for eviction

·  Civil Procedure --- Res  judicata—Consent decree—Estoppel by judgment—One who benifits from a judgment is estopped to attack any part of it

A consent decree against tenant for arrears of rent is res judicata, and he may not dispute the standard rent agreed to in that judgment while relying on it in defence to a claim for eviction in a later suit.

A consent decree against tenant for arrears of rent is res judicata, and he may not dispute the standard rent agreed to in that judgment while relying on it in defence to a claim for eviction in a later suit.

Judgment

Advocates: El Rashid Nayel ………………...for plaintiff

Obeid Hassan Hamid ...............................for defendant

T. S. Cotran D.J. January 10, 1960:—The defendant leased from the plaintiff at the beginning of 1958 a shop at a rent of £S.35 per month, and a store at the rent of £S.10 per month. The defendant fell hopelcssly into arrears, and in August 1958 the plaintiff sued him for the arrears, which amounted to £S.190.000m/ms and dismanded  his eviction. The defendant contended that the standard rent was (for the shop) £S.18.200m/ms and (for the store) £S.4.000m/ms. Issues Were framed accordingly. (See HC-CS-513-1958) The judge heard the plaintiff’s case, including two witnesses who gave evidence on the subject of the standard rent. The plaintiff’s case was concluded on April 16, 1959. The defendant’s case was adjourned to May 28, 1959. When the date came, both parties appeared before the court and defendant agreed that the standard rent was £S.45 for both premises (shop and store). That court ordered that the sum claimed for arrears be paid vith costs and advocate fees and that the defendant should not vacate the premises. A consent decree according to the above terms was passed. It must be remembered that the court’s consent decree for the arrears of rent covered the rent up till July 1958. The defendant having failed to pay the arrears, plaintiff proceeded with execution (EX- 102-1959). The defendant remained in the premises and since August 1958 till the present day he did not pay rent, but he did vacate the store in May 1959 The plaintiff therefore instituted the present suit for recovery of the arrears of rent from August 1958 (which were not of course covered by the previous judgment), and eviction. The plaintiff relied on the previous judgment of the court in HC-CS- that the standard rent was  for the premises.

The defendant, by his statement of defence, admits  that no rent was  paid by him since August 1958 i.e., since the date of the last suit. But he denies that the standard rent of the premises is £S.45 He claims that the standard rent is £S.22, and he counterclaims for the amount of £S.135  I must confess that I am at a loss to understand why defendant claims £S.135 since he has paid nothing at all since August 1958

The learned District Judge of the High Court framed two issues, but in the circumstances there should be only one preliminary issue. It is an issue of law, and I frame it as follows: “Is defendant now barred from raising the issue of standard rent by the judgment passed against him in HC-CS-513-1958  which declared the standard rent to be £S.45?

Advocate Nayel contends that the defendant is barred from raising this plea on the ground of (i) res judicata (Civil Justice Ordinance 1929, S. 40) and (2) estoppel by admission.

Advocate Obeid’s defence is a bit vague. He contends that the consent decree is “null and void, and consent given in contravention of statute is undoubtedly void.” He further contends that this is neither res judicata nor estoppel. because the point at issue, i.e., the standard rent, ‘ has never been decided before by a court of jurisdiction,” and there is “no estoppel against a statute.”

The court had asked for the whole file of CS-513-1958  to be brought before it for perusal. The general principle is that previous judgments could be rendered to prove the truth of the finding.

This is really a case of estoppel by judgment, the argument being that once a court of law decided certain issues in a certain way between the same parties on the same subject, no party in subsequent proceedings can come and plead that the fact is different from the one decided. In this case a competent court of jurisdiction heard the plaintiff in CS-513-1958  The point at issue was then the standard rent. The plaintiff brought two expert witnesses who gave evidence before the judge. The plaintiffs case was closed. When the turn of the defendant came, he admitted the standard rent to be as alleged. A decree was issued accordingly, with his consent.

Now the defendant is trying to raise the issue again. In my opinion he cannot do so. Of  course, previous judgments are impeachable on certain grounds. They can be impeached on the ground that they were not final, that they were not on the merits, that they were without jurisdiction, or that they were fraudulent, collusive or forged. (Phipson, Evidence 399—401 (8th ed., Burrows. 1942).) The judgment in HC-CS-531-1958  is absolutely nothing of the sort  It was final, conclusive, and arrived at on the merits.

Advocate Obeid says there is “no estoppel against a statute.” I take him to mean that estoppel cannot be pleaded against the law of the land. But he failed to explain what law or judgment is infringed. If he means the Rent Restriction Ordinance 1953 he is wrong. The “standard rent” is well defined in paragraph 7 of section 4. In this particular instance the premises  are new. They were proved to have been built in 1956-57 The cost of the buildings has been proved clearly by the building contractor, amply supported by documents. The estimate of the price of land has also been aptly proved. Therefore, the judgment of the court in HC-CS- 513-1958 was not contrary to any section of the Rent Restriction Ordinance 1953 or of any other ordinance. The statement of defence is absolutely without any merit. So is the surjoinder. It is clear from the whole conduct of the defendant that his case  is frivolous and vexatious. In the previous case, HC-CS-513-1958 he has not paid arrears of rent, and, as is clear from the  Execution File No. 102—1959  judgment was only satisfied in July I959 Since August: 1958, that is to say for seventeen months, the defendant has paid nothing. He now comes to the court with an absolutely frivolous defence. I think it will be in place to state the raison d’être of the doctrine of estoppel. The grounds upon which parties are precluded from relitigating the same matter between them are twofold:

 .the one public policy, that it is the interest of the State that there should be an end of litigation, and the other, the hardship on the individual, that he should not be vexed twice for the same cause.” (Lockyer v. Ferryman (1877) 2 A.C.519,530 per Lord Blackburn)

The grounds upon which privies are concluded, are not only identity of interest, but also. the principle, “Qui sentit commodum sentire debet et onus He who enjoys the benefit ought to bear the burden (Wilkinson V. Blades [1869] 2 Ch 788, 795)

This case is a glaring example of the principles of estoppel, for not only is the defendant enjoying the benefit of the judgment (in not being evicted),-but he wants to have that very judgment, the benefits of which he has enjoyed, impeached on what I believe to be very flimsy grounds, in order to gain time.

I therefore hold that paragraph 2 of the statement of defence is bad, and it is hereby stricken. It therefore follows that the whole claim of the plaintiff is admitted. I therefore enter judgment for the plaintiff for the amount asked in the plaint with costs of the action. I also order defendant’s immediate  eviction.