Case No.:

(AC-Revision-6o-1960)

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Landlord and tenant—A lireement for advance payment of rent—Breach of—Recovery of possession—Section11 (a), Rent Restriction Ordinance—Adjudication of standard rent—Effect on contractual tenancy

When under a tenancy agreement rent is payable monthly in advance payment in arrear would constitute a breach which entitles the landlord to recover possession under section 11 (a), and it is immaterial that the tenant had tendered the rent before the institution of the suit, as long as the tender was made in arrear.
A prior adjudication on the standard rent on a contractual tenancy does not operate to transform it into a statutory one. Save only in so far as it relates to the amount of the rent, the agreement remains binding on the tenant.
 

Judgment

(COURT OF APPEAL)*

MOHAMED KHEIR AHMED v. AWWAD EL KADI

(AC-Revision-6o-1960)

Revision

The facts are set out in t…….. for applicant

February 29, 1960. B. Awadalla I.: —This application has no hope of success and should in my view be summarily dismissed. It is a case for eviction on ground of non-payment of rent. The tenancy agreement was a written one dated January 27, 1956, in which the respondent let out a bakery in Khartoum to applicant for the sum of £S.25 per mdnth payable in advance. The said agreement was the subject of a previous civil suit in which respondent claimed recovery of possession on the ground, inter alia, that he required the bakery for his own use. Applicant (defendant in the previous action) counterclaimed for a declaration that the standard rent was £S.14 and contested the claim for recovery of possession. He was suc cessful on both counts. Decree in that case was given on January 23, 1958.

This action is now brought by the owner for recovery of a sum of £S.42 being three months’ arrears at the adjudged rent. It was proved and admitted that the rent for March and April 1959 was tendered on May 3, 1959, and that the rent for May was tendered on June 13. 1959. The learned District Judge gave judgment for eviction under section 11 (a) of the Rent Restriction Ordinance on the ground that the tenant committed a breach of his obligations under the tenancy agreement in that he failed to pay the rent in advance. The tenant (applicant) applied for revision (to the Province Judge) on the ground that he was under the impression that by reason of the previous litigation he thought that the tenancy became a statutory tenancy and was no longer a contractual one. His application was naturally rejected.

Applicant’s advocate, though admitting that the agreement still holds good, now wants to press the point that at the time the suit was instituted there was no rent lawfully due. This is because, he contends, the date of tender must be that on which it is received. I am unable to understand how he can admit the agreement and then try to justify payment in arrear Whether we say that the rent was tendered on the date of receipt of the letter or on the date of its posting, applicant was far behind the terms of the agreement in the payment of the rent.

I think that both the learned District Judge and the learned Province Judge were right in the matter.

M. A. Abu Rannat C.J.: —Application for revision is summarily dismissed.

                                                              (Application summarily dismissed)

* Court: M. A. Abu Rannat C.J., B. Awadalla J.