Case No.:

AC-REV-17-1962

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Landlord and Tenant—Eviction and permission to re-let—Rent Restriction Ordinance 1953, 5. 13—Landlord’s duty outside Sudan is good cause Landlord and Tenant—Eviction and permission to re-let-rent. Restriction Ordinance 1953, S. 13—Prior eviction decree under Rent Restriction Ordinance 1953, s. ii (d) nor reopenable

·  Landlord and Tenant—Eviction and permission to re.let—Rent Restriction Ordinance 1953, s. 13—Permission required for one year period after entrance of landlord

·  Landlord and Tenant—Eviction and permission to re-let—Rent Restriction Ordinance 1953, s. 13—if permission granted, prior tenant may re-enter

·  Landlord and Tenant—Eviction and permission to re-let—Rent Restriction Ordinance 1953, 5. 13—Prior tenant allowed to re-enter must take subject to alterations made

Plaintiff landlord applied under Rent Restriction Ordinance 1953, S. 13, to re-let for six months, during which he would be outside the Sudan on duty, premises into occupation of which he entered under Rent Restriction Ordinance 1953. S. 11 (d). From the decree of the High Court granting this permission unrestricted, defendant, the prior tenant, took this appeal
Held: Although landlord entered into possession of the premises as a residence for himself under Rent Restriction Ordinance 1953, S. I (d), his obligation to be outside the Sudan on duty is good cause for permission to re-let under Rent Restriction Ordinance 1953, S. 13.
Obiter dictum: (i) Although evidence of the purposes for which the landlord obtained possession is admissible to urge the court to permit ré-letting of the premises, the prior judgment of eviction under Rent Restriction Ordinance 1953, s. ii (d), cannot be reopened or disturbed.

(ii) Permission of the court required by Rent Restriction Ordinance 1953, s. 13, is no longer required one year after entrance on the premises by the landlord.

(iii) A tenant evicted under Rent Restriction Ordinance 1953, S. u (d), should be allowed to re-enter as tenant if permission of the court to re-let is granted to landlord under Rent Restriction Ordinance 7953, S. 13.

(iv) A tenant evicted under Rent Restriction Ordinance 1953, s. ii (d), and entitled to re-enter as tenant after permission to re-let is granted to landlord under Rent Restriction Ordinance 1953, S. 13, must take the premises subject to alterations made by landlord during his occupation, and the court shall adjust rent accordingly.

Judgment

(COURT OF APPEAL) *

ROBERT FINCH v. AHMED MOHAMED NAEEM

AC-REV-17-1962

Advocates: Ahmed Guma’a I or defendant-applicant Ogail Ahmed Ogail ... for plaintiff-respondent

M. A. Hassib, Acting C.J. April 17, 1962: —This in an application for revision against the order of the Judge of the High Court, Khartoum, dated January 6, 1962, reversing the order of the District Judge, Khartoum, dated November 13, 1961, giving conditional order to an application made by plaintiff under the Rent Restriction Ordinance, S. 13, for permission to re-let the premises the possession of which he obtained under the Rent Restriction Ordinance, s. i i (d).

The facts supported by evidence are as follows:

The premises in plot No. 21, Block 4 Z.E., Khartoum, belong to plaintiff- respondent. The defendant-applicant vas the tenant thereof.

By an action in CS-2 Khartoum District Court, plaintiff- respondent claimed possession of the premises under the Rent Restriction Ordinance, s. ii (d) and obtained a decree. He actually entered into possession on May 31, 1961.

Later on, by an application, dated November ç, 1961. plaintiff- respondent applied under the Rent Restriction Ordinance, 5. x for permission of the court of origin to re-let the premises furnished for a period of about six months during which he would be away on duty outside the Sudan.

The Court of the District Judge dealt with the application and on an objection made by the advocate of the defendant-applicant, made its order of November 13, 1961, to the effect that possession should only be delivered to defendant-applicant if plaintiff-respondent so wished. But plaintiff- respondent by a letter from him to defendant-applicant refused to deliver possession to defendant-applicant preferring to leave the premises during his absence unoccupied by any tenant.

From the order of the District Judge, dated November 13, 196!, plaintiff- respondent applied to the Judge of the High Court for revision. The Judge of the High Court on revision made his order, dated January 6, 1962 setting aside the order of, the District Judge of November 13. 196 i, and permitted plaintiff-respondent to re-let the premises to any tenant without any restriction or condition.

Hence comes this application to the Court of Appeal from the defendant- applicant for interpretation of the Rent Restriction Ordinance, s. 13, and consequential relief. The parties before this court are both represented.

Rent Restriction Ordinance. s. 13 reads as follows:

“If an order for possession of any premises has been made on any of the grounds mentioned in paragraphs (d) or (e) of Rent Restriction Ordinance, s. 11, the person who enters into occupation thereof by virtue of such order shall not assign his tenancy or let or sub-let or part with the possession of the premises or any part thereof save with the permission of the court which made the order and then only at such rent and upon such terms and conditions as the court may think just and reasonable.”

Nice points for discussion were raised by the argument of the advocates of the parties in the course of challenging the correct interpretation of the Rent Restriction Ordinance, s. 13, which I now summarize in the following:

(1) Is the genuineness of claim in the decree obtained by the landlord in respect of recovery of possession under the Rent Restriction Ordinance, s. it (d), susceptible of discussion whenever the landlord wishes to invoke the Rent Restriction Ordinance, s. 1 3?

(2) Has the provision of the Rent Restriction Ordinance, s. 13, any time limit restraining the court applying it to a certain period of time?

(3) What is the scope of the Rent Restriction Ordinance, s. 13?

The decision in the present application is dependent on the answers to the above-mentioned and questions, so I now proceed to tackle these questions one by one.

Rent Restriction Ordinance, s. 13, is undoubtedly intended to protect ‘the tenant against the landlord who is not genuine in his claim and plays a trick in recovery of possession ‘of the premises under the Rent Restriction Ordinance, s. it (d). So any argument on the question of how the landlord obtained possession of thern premises, the subject-matter of an application under the Rent Restriction Ordinance, s. 13 is not intended to affect or infringe the judgment already obtained under the Rent Restriction Ordinance, s. it (d). Such an argument should be allowed only to show a circumstance sufficient to make the court exercise its discretion in granting or refusing permission for departing with possession, which the landlord obtained by the force of law.

In this case there is sufficient evidence to show that though the landlord was genuine in his claim under Rent Restriction Ordinance, s. ii (d yet he had a cause for the application he made under the Rent Restriction Ordinance, s. 13, because he was under an obligation to leave the country on official duty and that alone is sufficient to support the application.

Secondly, unlike the provision of the old law (Rent Restriction Ordinance, 1947), s. 13, of the present law does not give a time limit for its invocation. In my view the omission is by no means intended to deprive the landlord of his proprietary rights for good. In India (Bombay Act 47) there is a time limit of 13 months, and in the circumstances of Sudan I am inclined to fix a limitation to the application of the Rent Restriction Ordinance. s. 13 within one year only. This would be fair on both parties and make the law certain.

I therefore decide that the application of the Rent Restriction Ordinance, s. 13, should be limited to one year only.

Lastly I come to deal with the scope and objects of the Rent Restriction Ordinance, s. 13, which is undoubtedly intended to protect the tenant against the false pretext of the landlord. Under this section the granting of permission is discretionary on the court: that is also a gesture for protection of the landlord who for circumstances sufficient was entitled to protection of the law against the mal-practices of the tenant in relations between them. Though it was not expressly provided by the Rent Restriction Ordinance, s. 13, that the tenant is entitled to come to the premises the possession of which was recovered from him under Rent Restriction Ordinance, s. 11 (d), yet the tenant who wishes to come back should no doubt be entitled to be reinstated in the premises; otherwise there should have been no control on re-letting.

The owner who obtains possession under Rent Restriction Ordinance,

s. 11 (d), is entitled in the exercise of his proprietary rights to make any alteration or change in the construction of the premises. He is not restricted from doing whatever he likes in respect of the development and improvement of his premises. Having decided this, the landlord is no doubt entitled to ask for permission for re-letting the house not only in its previous condition. He, in my judgment, is entitled to offer it furnished for re-letting and if the old tenant who is entitled to come back to the premises, wishes the premises in their new condition, the court will’ help him in allowing him to re-enter on the new conditions and new terms of rent. To sum up, Rent Restriction Ordinance, s. 13, in my judgment, should be interpreted as follows:

(a) The genuineness of claim in the decree obtained by the landlord in respect of recovery of possession under the Rent Restriction Ordinance, s. 11 (d), is susceptible of discussion whenever the landlord asks for permission to re-let the premises under the Rent Restriction Ordinance, s. 13

(b) Though there is no express provision as to time limit in the Rent Restriction Ordinance s. 13, yet the section should not apply in cases occurring after the lapse of one year from the date of the decree obtained under the Rent Restriction Ordinance, s.11 (d).

(c) The section is intended to protect the tenant in that he will be entitled to be reinstated in the premises if the landlord wishes to re-let them but on condition that he takes the premises in the manner in which they are offered by the landlord subject to new conditions as to standard rent if the premises are improved or offered furnished.

There shall be, therefore, an order amending the order of the Judge of the High Court dated January 6, 1962, and no order as to costs.

Salah El Din Hassan P.J. April 17, 1962: —I concur.

* Court: M. A. Hassib, Acting C.] and Salah El Din Hassan P.J.