Case No.:

(AC-Revision-247- 1959)

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Landlord and tenant-“ Rent lawfully due”- Section 11 (a). Rent Restriction Ordinance, 1953-Tender of payment before institution of suit bar to recovery of possession

No order of possession should be granted where the tenant had tendered payment of arrears before the institution of the suit. The delay in tender of the rents, though it constitutes a technical breach of the contract of tenancy, does not entitle the landlord to recovery of possession if tender was made before the institution of the suit.

Judgment

                                              (COURT OF APPEAL)

 LABEEB GALDAS V. ABDALLA EL HASSAN

(AC-Revision-247- 1959)

Revision

The facts are stated in the judgment of Mudawi P.J.

Advocates: Hamid Elias…………………… for applicant

                  Abdel Wahab Abu Shakeima….. for respondent

February 29, 1960. M. Y. Mudawi P.J.: —This is an eviction case based on non-payment of rent lawfully due (section 11 (a), Rent Restriction Ordinance). The facts are carefully set out in the judgment delivered by Shibeika, District Judge, and apart from stressing one or two points we need not reproduce the whole thing. The original agreement was between a certain Fakhori Rufaeil (the predecessor in title of plaintiff) and the defendant, Labeeb Galdas. It was made on November 1, 1955.

Some time after this date the plaintiff became the landlord of the said house thereby assuming the mantle of the previous landlord; the tenant (defendant) retained possession of the premises. Owing to some acts of forbearance on the part of the previous landlord the monthly rent of £S.14.4oom/ms used to be paid a few days after it was due. However, the rent due for June 1959 was unduly delayed as it was tendered on July 10. 1959. The landlord refused to accept it and instituted legal proceedings for recovery of rent and possession on July 11, 1959. The recovery of possession is based on failure to pay rent lawfully due (section is (a) of Rent Restriction Ordinance). The District Judge in the court below gave judgment for the plaintiff and the application to revise the District Judge’s decision was summarily dismissed by the Province Court. Hence this appeal is raised against the decision of the Province Court.

The court below based its decision on two issues:

(1) Did defendant fail to pay June rent at the time it was due?

(2)To what relief is plaintiff entitled?

Lowever, we are of opinion that these issues are not complete as the district Judge ignored a legal issue of vital importance in the circumstances )f the case, namely, was the June rent lawfully due at the time proceedings to recover possession were instituted?

The Court of Appeal as issue “No. 2” framed this issue and the parties were heard on it.

Issue No. 1 : This issue was answered in the affirmative and the court below found that the June rent was unduly delayed and was offered on July 11, 1959. As the date of tender is vitally important to the decision we feel that this court should not hastily pass over it. The evidence we have before us as to the date of tender is that of plaintiff and defendant. Plaintiff is not very clear on his dates. He told the court that it could be any time between 10th and 12th of July. Defendant on the other hand positively stated that the ioth was the time he offered the rent. In the face of this evidence we feel that the court below was wrong in concluding that tender was made on July it. The evidence clearly shows that the ioth was the more probable date.

Issue No. 2: This is an issue of law framed by this court. It turns on the interpretation of section 11 (a) of the Rent Restriction Ordinance, which reads as follows: “ In any suit by a landlord for the recovery of possession of any premises the court shall not grant such relief unless (a) any rent law fully due from the tenant has not been paid or there has been a breach or non-performance of any other obligation of the tenancy whether the same arises under this ordinance or under the contract of tenancy so far as the same is not inconsistent with the provisions of the ordinance..”

As it appears this subsection divides breaches entitling the court to order possession into two types: (1) breaches connected with non-payment of rent; (2) other breaches. With regard to (1) the legislature has deliberately imposed the condition that the rent must be lawfully due before relief is granted and rent is said to be “lawfully due “ when it is recoverable by distress or an action in the court. However, if arrears are paid before the proceedings are instituted, then on the date of institution the rent cannot be said to be lawfully due as it is already paid, and although there is a technical breach, it will not enable the landlord to recover possession. The deadline in our opinion is the date of institution of the suit. Any payment before this date will deprive the court of its power to continue with the proceedings as far as eviction is concerned. On the oth hand we do not think that payment after institution of the suit and before decree has the effect of barring the court from ordering relicf. The legislature in using the words the court shall not grant relief unless…”

does not, in our judgment, intend to allow the tenant to tantalise the landlord by postponing payment of arrears at his pleasure and then paying them a few minutes before the decree is passed. Such interpretation will lead to absurdity and will create out of the Act an instrument of oppression.

With regard to (2), i.e., other breaches, the Act is in our opinion very clear. The court can order relief irrespective of whether the breaches are continuing or not. As long as a breach was committed in the past then there is a cause of action and eviction may follow.

As far as the case before tis is concerned defendant made an offer to pay rent to plaintiff on July 10, 1959. Plaintiff rejected the offer and filed a petition in court on July 11,1959 claiming eviction. In the light of the above disposition of the law the plaintiff on July 11959, had no cause of action as the rent was not lawfully due on that date. He could have received it if he so chose without distress or action in the courts.

In my view, this application is allowed and judgment of the court below is reversed.

Abdel Mageed Imam I.: —I concur.

                                                       (Application allowed)