Case No.:

(AC-Revision-300- 1960)

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Landlord and tenant—Rent restriction—Recovery of possession for personal use— Default decree based on affidavit—Requirement of proof of “essential” need for personal use—Rent Restriction Ordinance, 1958 Amendment Civil practice and procedure—Default decree

Where the cause of action for recovery of possession is based on the ground of personal requirement and when the defendant fails to appea on the date fixed for hearing, a sworn affidavit containing a statement to the effect that the plaintiff is in need of the premises for his personal use is not sufficient for a dectee to be passed thereupon; the court must proceed to hear evidence of all the essentials of the cause of action and must be satisfied that the plaintiff’s need is “essential” within the meaning of the 1958 amendment to the Rent Restriction Ordinance. A default decree should not be lightly passed; account must be taken of all the attending circumstances of the plaintiff’s alleged need.

Judgment

 (COURT OF APPEAL)

SALIH MAHMOUD v. MAHMOUD MOHAMED EL ZAIAT

(AC-Revision-300- 1960)

Revision

The facts are set out in the judgment of B. Awadalla J.

Advocates: Mirghani El Nasri…. . for applicant

                         Geris Asaad ………..for respondent

*Court: M. A. Abu Rannat C.J., B. Awadalla 1.

November is, 1960. B. Awadalla 1. : —This is an application against the order of the Honourable the Judge of the ‘High Court Khartoum dated July 59, 1960. dismissing summarily an application to him against the order of the learned District Judge Khartoum refusing to reopen CS/ The said civil Suit was instituted by respondent on April 24, 5958, for recovery of his shop No. i Block 3 P.W. Khartoum let out to applicant (defendant in the stiit) on the ground that the said shop was required by respondent for his own occupation.

Applicant denied claim and an issue was framed on the point of persona’ requirement and case adjourned to June 2i, 1958. There were several adjournments afterwards until at last on March 24, 1959, respondent (plain tiff) alone appeared and preserved his right to have ‘a default decree and on July 6, 1959, submitted an affidavit dated June 23, 5959, claiming that he required the shop for his own use. Default decree was accordingly issued.

No attempt was made by the court to arrive at whether the need by the claimant was an “essential” in accordance with the terms of the 1958 Amendment of the Rent Restriction Ordinance. This is wrong. When a case is decided in default of appearance by defendant under section 64 (a) the court has to hear evidence on the cause of action and it does not mean that because a defendant failed to appear he should be condemned without proof. In the present case the plaintiff cannot recover possession of the shop for use by him for his own purpose unless he proves to the satisfaction of the court that it is in all the circumstances essential for him to ha the use of these premises for that purpose. In his affidavit he simply said “I am in need of this shop for my own use and being a new owner I have given defendant six months’ notice to quit.” This is not enough: he has to say for what purpose he requires it, since when his need has arisen, how he had managed to go about without this shop in the past, what his pattern of trade is if he is a trader and, if he is not, why he wants to be one, etc., etc. In short the default decree should not be lightly passed for it is proof to the satisfaction of the court which the Ordinance requires to be given and the court should not accept stronger proof when defendant is present than when he is absent.

This application is therefore allowed with costs and case referred back to the trial court for rehearing

M. A. Abu Rannat C: —l concur.   (Application allowed)