Case No.:

(AC-Revision-18- 1960).

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Landlord and tenant—Covenant to vacate premises at end of term of no effect to bar statutory tenancy—Rent Restriction Ordinance (Amendment) Act, 5958. S. z ( of knowledge of landlord of covenant being broken by sub-lease

·  Civil practice and procedure—Amendment of issue by appeal court

(i) An express covenant to quit controlled premises at the expiry of the term of the lease is of no effect to bar a continuance in possession as a’ statutory tenant under the Rent Restriction Ordinance.
Ibrahim Yousif Abboudi v. Hassan Abdel HalIz (1960) S.L.J.R. 112 followed.
(ii) Rent Restriction Ordinance (Amendment) Act, 1958, S. 2 (3). Meaning of term “essential “: it signifies “indispensably requisite.” Issue in cases involving this point discussed

(iii) Where an incorrect issue was tried by the couyt below, the appeal court may cancel the former issue and substitute a corrett one, ordering the tri$ judge to dispose of the case on this one

Judgment

(COURT OF APPEAL)

 HASSABALLA SALIM v. ABU TILA EL AMIN EL TILIB

(AC-Revision-18- 1960).

Revision

Advocates: Sir El Khatim Au Omar for applicant

Abdalla El Hassan for respondent

April ii, 1960. Abdel Mageed Imam J. : —This is an application for revision submitted ‘on behalf of applicant (and defendant) and di both against the decree of the District Judge, Khartoum, dated November 16, 1959, granting an order of eviction in favour of respondent (afl plain tiff) in respect of his house known as Plot No. 30 Block 6 C.W. Deyoum, and the summary dismissal order made by the judge of the High Court on December 30, 1959.

The decision of the learned District Judge was solely based, when ordering eviction, on the ground that Exh. 10, a contractual tenancy between the parties, contains an unequivocal undertaking by applicant (and defen dant) uncthiditionally to surrender the lease and deliver possession of the premises at the expiry of the term of the tenancy on August 31, 1959. It is observed that no issue was framed on whether such an undertaking gives the landlord the right to recover possession. On the other hand the only issue that was framed was in respect of requiret for personal use. No evidence was heard and no decision was passed in respect of this issue. It is strange that this case was decided on a plea, which was not pleaded, aild the plea that was in fact pleaded was not decided on! To add to the strangeness, the ground upon which the application for re was rejected, i.e., that the court of first instance found that respondent (and plaintiff) wanted the premises for his own use, was incorrect because that court did not so find.

We think that the court of first instance was wrong in deci&ng that applicant (and defendai was bound by his undertaking to surretider the lease at the end of the tenancy. The tenancy between the parties was one for a fixed term, i.e., one year starting from September 1, 1958, and ending on August 31, 1959. It is therefore a tenancy determinable by ffluxion of time. It is convertible automatically into a statutory tenancy nd any covenant or undertaking inconsistent with the provisions of the Rent

Restriction Ordinance, 1953, would not be binding on the parties. Clearly such a covenant of unconditional surrender is the best example; for to bold otherwise would render the whole purpose of the Act nugatory anl without effect—see Ibrahim Yousif Abboudi v. Hassan Abdel Hafiz, AC/REV/270/ 1959 The landlord can accordingly only recover posses if he proves any of the incidents mentioned under section 11 of the Ordinance, e.g., requirement for personal use, which is the ground for recovery in this case.

For the reasons explained above the decree of the District Judge dated November 16, I959 and the order of the judge of the High Court dated December 30, 1959, are set aside. The case is to be retried on the issue of personal use. In this respect the attention of the learned District Judge is directed to the Rent Restriction Ordinance (Amendment) Act, 1958, which requires from a landlord, in order to succeed in a claim for recovery for personal use, to prove, to the satisfaction of the court, that it is, in all the circumstances, essential for him to reside in the premises in question. The former formula or standard of “present and genuine” need no longer apply. In other words this standard has become by the said amendmeni more stringent and more strict. For the benefit of the learned District Judge the meaning of the word “essential” in the Oxford Dictionary is “indispensably requisite.” We therefore think fit to cancel the former issue, and direct the District Judge to dispose of the case upon the following one:

Issue: Is it, in all the circumstances, essential, i.e., indispensably requisite, for plaintiff to reside in the house in dispute?

Costs are to follow the event.

Abdel Rahman El Nur J.: —I concur.

Court Abdel Mageed Imam, Abdel Rahman El Nur JJ