Principles

·  Landlord and Tenant—pre-existing tenancies—Rent Restriction Ordinance, ss. 11 (a), 20,21—Breach of statutory provision against sub-letting

When considering whether the statutory provision against sub-letting, contained in Rent Restriction Ordinance, s. 20, applies to sub-letting made under tenancies created before the Ordinance, the factor to be taken into account is not the date of the tenancy but is the date of the sub-letting. If this occurs after the date of the Ordinance the statutory provision applies.

Judgment

Advocates: Mohamed Y. Mohamed           ……………………………….… for applicant

                   Ahmed Abdel Samad                 …………………………. for first respondent

Babiker Awadalla J. March 27, 1962: —this is an application for revision against the dismissal by His Honour the Province. Judge, Kordofan of an application to him against the judgment and decree of the learned District Judge, El Obeid, in CS-56-1960.

It was an eviction case in which the landlord was claiming recovery of possession on three grounds:

(i)                  Personal need;

(ii)                Breach of the statutory condition against sub-letting;

(iii)               Breach of the condition as to payment of rent.

The premises are Plots 30 and 31, Plot E. 2, N., El Obeid Suk, let out to first respondent in 1952 at a monthly rent of £S.20. The tenancy was a written one for a period of three years from January 1, 1953 and contained a provision that it was renewable for a further similar period of three years should neither party give the other three months’ notice of its termination

As regards the first head of the claim, plaintiff-applicant contended in the court below that he was intending to settle finally at El Obeid and give up his present business at Kadugli owing to old age.

 As regards the second head of the claim, he alleged that first defendant-respondent had parted with the possession of both plots in that he let out one shop to second defendant for use as a bakery and the other to third defendant for use as a restaurant.

  Finally, as regards the third head, plaintiff alleged that first defendant failed to pay arrears of rent for August to November 1959, amounting to £S.36.440m/ms.

   First defendant denied all allegations in the court below, but second and third defendants do not appear to have been called upon to reply to the plaint. The issues were framed as follows:

(i)                  Did first defendant sub-let the two plots without the written consent of plaintiff?

(ii)                Is plaintiff in need of the shops for his personal use?

(iii)               Is first defendant in arrears to the extent of £S36•440m/ms?

 After hearing the evidence, the learned District Judge dismissed the case on the grounds that the second and third issues were not proved, and as regards the first issue, that sub-letting to third defendant was not contested by third defendant himself and so should be taken as established, but that there was no evidence of sub-letting to first defendant. Nonetheless, the learned District Judge refused to grant the relief claimed, because in his opinion the Rent Restriction Ordinance, having come into force on December 31, 1953, cannot apply retrospectively to a tenancy created before that date.

From this decision, the plaintiff applied for revision to His Honour the Province Judge. His Honour the Province Judge dealt only with the points covered by issues (ii) and (iii). On the matter of the second issue, he said he was not prepared to disturb the decision of the learned District Judge on a question of fact. On the matter of the third issue, His Honour

the Province Judge expressed disagreement with the views of the learned District Judge on the question of the applicability of the Ordinance to preexisting tenancies, but found in favour of the tenant on the ground that the tenancy agreement itself contained a general clause which could be interpreted as authorizing sub-letting without consent. It is from this decision that this application is now being made to this court.

Applicant is represented by advocate Mohamed Y. Mohamed, and first respondent appeared by his agent, Ahmed Abdel Samad. Second respondent appeared in person, and third respondent failed to appear.

Advocate Mohamed Y. Mohamed contends that His Honour the Province Judge was wrong in that:

(i)                  he failed to deal with the question as to arrears;

(ii)                he considered the question as to personal use as one of pure fact, while in truth it is one of evaluation of evidence;

(iii)               he interpreted the provision  عليه ليتعرف الثاني والتعرف فيما يخفي بالركاكيز

as authorizing sub-letting without consent, while in truth it does not.

As regards the first point:

  The agent of first respondent replied that the learned District Judge was right in face of the evidence before him to find that no arrears were due. This evidence consisted of the fact, admitted by applicant, that first respondent held receipts for the months of October and November 1959.

Advocate Mohamed Y. Mohamed explained the fact as to the issue of these receipts by alleging that it was agreed that first respondent should pay the rent, of August and September, to the town council in settlement of arrears of rates. This explanation was not supported by any independent evidence in the court below, and the learned District Judge was therefore quite right in believing first respondent’s evidence on the point.

As regards the second point:

This also was denied by the agent of first respondent and I entirely agree with His Honour the Province Judge that this is a question of pure fact, on which there is nothing to justify intervention with the decision of the court below,

As regards the third point:

Here again both the agent of first respondent and second respondent denied any sub-letting or parting with the possession of the premises in question. There is no doubt that there was sub-letting to third respondent, who himself admits this fact.

In my view this is the most important part of the claim, and neither the decision of the learned District Judge nor that of His Honour the Province Judge is correct. The learned District Judge dismissed the claim on the ground that section 20 did not apply to sub-letting under tenancies created before the Ordinance. This is not correct, for what is important is not the agreement but the sub-letting, and if this occurs after the date of the Ordinance the sub-lessee is not entitled to any protection by virtue of section 21.

His Honour the Province Judge based his decision on the ground that the words referred to give the tenant a right to assign or sub-let without reference to the landlord. This is not correct, and the contention of the learned advocate on the point is no doubt quite right. I think the words mean no more than that the tenant was, from the day possession was given to him, entitled to use the premises as such. One of his obligations under the Ordinance is not to sub-let without the written consent of the landlord. As it was sufficiently proved that he did sub-let to third respondent without such consent, he had committed a breach of one of the obligations arising under the Ordinance and is therefore liable to be evicted under section 11 (a).

This application is therefore allowed with costs. The decision of His Honour the Province Judge is hereby reversed and decree entered in favour of applicant for eviction and costs.

M. A. Abu Rannat C.J. March 27, 1962:—I concur.