Case No.:

(HC-Revision-259-1959)

Court:

The High Court

Issue No.:

1960

Principles

·  Landlord and Tenant - acceptance of rent in Arrears -Estoppel

The habit of paying and accepting rent in arrears does not of itself raise an estoppel against the landlord so as to prevent him from recovering possession for default in payment on a subsequent occasion.
Beavis v. Carman (1920) 36 T.L.R. 396. applied.

Judgment

                                                 (HIGH COURT)

                ELGINEID OSMAN RAHAMA v. OSMAN EL SHAFIE

                                          (HC-Revision-259-1959)

Revision

February 29, 1960. Osman el Tayeb P.J.: —The plaintiff is the landlord and the defendant is the tenants in respect of plot No. 4/5/102 Omdurman. The plaintiff applied to the District Judge, Omdurman, for recovery of possession on the ground of default of payment of the rent lawfully due for the months of August to November 1958 (both inclusive) at the rate of £S.j monthly in arrear. After institution of the suit, the defendant sent to the plaintiff a ch for all the arrears. In his reply to the applica’ tion for recovery of possession, the defendant contends that he has been in the habit of paying the rent in arrears for some three or four months together, and that the plaintiff has been accepting it without objection. Therefore, the plaintiff is estopped from applying for possession on the ground of default in payment of rent. In my opinion this is an unsound argument. The principle of estoppel does not apply in altering the time of payment of rent whether fixed by contract or by statute. The landlord is entitled to waive the default in payment of the rent due in time, which is breach of a condition, but he is not bound by his waiver on many occasions so as to bar him at any subsequent time from taking his lawful right.

This case is identical to the English case of Beavis v. Carman, the digest of which I quote from Blundell’s Rent Restriction Cases as follows:

“Proceedings for possession were brought against a tenant who had always been in the habit of paying his rent some time after the date due. When this writ was issued there was rent in arrears, and he tendered the arrears after being served with the writ. Held, that as the plaintiff had a right to recover possession when the writ was served, nothing that had happened since deprived her of that right.”

in the present case, at the time of bringing his case, the plaintiff was entitled to recovery of possession on the ground that rent lawfully due was not paid, and so payment afterwards should not deprive him of his right. The habit of paying and accepting the rent in arrears cannot in the circumstances of this case amount to an agreement binding on the parties.

The decree of the District Judge, Omdurman, dismissing the plaintiff’s case is to be set aside, and a decree shall be substituted in favour of plaintiff for recovery of possession. Plaintiff is also entitled to his costs in the court below and in this court.

                                                                                     (Revision allowed)