Case No.:

(AC-Revision-68-1960)

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Landlord and tenant—Recovery of possession for arrears Vui ver of right tp punctua payment of rent after instit of suit does not amount I waiver of breach.

Where a lease provided for the payment of rent monthly in arrear, and the tenant fell in arrears, which he admitted,
Held: (i) The plea by the tenant that the landlord was estopped from i on punctual payment by his conduct of accepting late payment should ha been raised in the defence.
(ii) That there was no support for the contention that where the landlor accepts payment of rent after the institution of the suit he should he deem to have concjoned the breach, and should not complain about it.

Judgment

(COURT OF APPEAL)

SPIROS  SFICAS v. MANSOUR ABDEL MAGEED

(AC-Revision-68-1960)

Revision

Advocates: M. A. Orabi………          for applicant

                   Hassan Darawi……                for respondent

*Court: B.Awadalla J.A.M.Imam.J.

April 27, 1960. B. Awadalla J. —This is an application against the decision of his Honour the Province Judge, Khartoum, dated February 1960, in HC/Rev/403/59 dismissing an application to him for revision of the decree of the District Judge, Khartoum in DC/CS/676/59 dated the17 day of October, 1959 and ordering recovery of possession of House No. 20 Block 10 S.W. Khartoum.

The point at issue is a simple one, viz., whether applicant was in arrear in the payment of the rent due for January and February I959 contrary to the provisions of clause 2 of the Contract of Lease, which provides for payment of the rent monthly in arrear. On the evidence adduced, we have no doubt that the learned District Judge answered this question quite correctly and he was in our opinion quite rightly upheld by His Honour the Province Judge.

Before us the learned advocate for applicant admitted the arrears and tried to contend that respondent is estopped from insisting on punctual payment because the rent was always paid and accepted much later than the lease provides for. We rejected this assertion because we consider that if applicant’s advocate considered that estoppel is a defence to the present action, he ought to have raised the point in his answer to the statement of claim.

Furthermore, the learned advocate for applicant made the point that because respondent accepted the rent even after the institution of the suit, respondent had waived all his rights to complain of that breach. This is certainly an assertion for which the learned advocate could cite no authority and have which the fallacy is quite obvious. The application is therefore dismissed with costs.

Abdel Mageed Imam I.: —I concur

                                                                              (Application dismissed)