(COURT OF APPEAL)

IZZEL DIN ABDALLA GUBRA v. HASSAN MOHAMED AHMED IBRAHIM

AC-REV-79-1965

 Principles

·  Landlord and Tenant—Recovery of possession—Rent Restriction Ordinance, s. II (e) (Amendment) Act 1958. 5. 2 (3)—Applicable to both residential and business premises Landlord and Tenant—Recovery of possession—Rent Restriction Ordinance, s. II (e) (Amendment) Act 1958, S. 2 (3)—Business need must be proved and not the hopes of the landlord in business

The Rent Restriction Ordinance, s. i (e) (Amendment) Act 1958. 5. 2 (3). is applicable to both residential premises. In case of business premises, the landlord must adduce evidence to prove his essential need in business and not his hopes in business in the future.

Judgment

Advocates: Ahmed Gumaa …………………………………..for applicant

                    Henry Riad for………………………………… respondent

Babiker Awadalla C.J. April 19, 1966:—In my opinion this application should be allowed.

I think we would be defeating the objects of the Ordinance if we start to allow claims of this sort, which appear- to me to be increasing, to succeed. I mean claims in which a landlord makes an allegation that he is without engagement, that he wants to start a trader’s business, but is unable to do so because he is unable to obtain a trader’s licence, that traders’ licences are not issuable by the local authorities without reference to specific vacant premises now used by the tenant as business premises.

The position would of course be different if the landlord wants the premises for the purposes of extending a present existing business and is able to prove that such extension is essential for the purposes of that business.

It is high time that the courts should realise that, although the criterion of “essential need” applies equally to residential and business premises, its application may in certain cases lead to different results, for although the personal element is relevant in a claim for recovery of the former type of premises, it is absolutely irrelevant in a claim for recovery of the latter category. Rent Restriction Ordinance, s. ii (e) (Amendment) Act 1958, S. 2 (s), reads as follows:

“The landlord requires the premises for some purpose other than as a residence, for his own use and the tenant is not using them as a residence, and the landlord proves to the satisfaction of the court that it is in all the circumstances essential for him to have the use of those premises for that purpose.”

It is the need of the business that must be considered in the interpretation of that paragraph and not the hopes of the landlord. A business that is dependent upon the approval of the authorities is nothing more than a contingency which may never materialise.

For the above reasons the application is allowed with costs and the decree of His Honour the Province Judge confirming that of the learned District Judge is hereby set aside.

Osman El Tayeb 1. April 19, 1966:—I agree. I think it may be added that the fact that the landlord had on more than one occasion asked applicant to increase the rent, the last one was about a year before the institution of this suit, but in vain, shows that the landlord is not honest and genuine in his claim for personal use. It may be described as a vexatious claim; that since he failed in making applicant increase the rent, he sought his eviction by the allegation that he is intending to start a business, that business which he had never tried before, in that shop.

I agree that this application be allowed.

* Court: Babiker Awadalla C.J. and Osman El Tayeb J.