[1952] EACA 306

# APPELLATE CIVIL

#### Before BOURKE, J.

#### M. J. LALANI, Appeliant

$\nu$ .

### S. B. PAES, Respondent

## Civil Appeal No. 1080 of 1950

### (Appeal from the decision of the Central Rent Control Board, Nairobi)

Landlord and tenant-Application to Central Rent Control Board before notice to quit expired.

The respondent landlord commenced proceedings before the Rent Control Board on 9th June, 1950, and his application stated that the tenancy was duly determined by a notice to quit at the end of the tenancy for the month of June, 1950. This notice to quit was dated 20th May and was served the same day.

Held (26-5-52).—When the landlord instituted this claim for possession the landlord relied<br>on a notice to quit which had not expired so as to terminate the tenancy. The contractual tenancy being still in existence the landlord had no cause of action entitling him to recover possession.

Appeal allowed.

Cases referred to: Aboobaker Bokhairia v. Hajee Ismail, C. A. No. 48/1950;<br>Purshotam Bapu v. Dattatraya Rayafi (1886) 10 Bombay, 669, 670; Benninga, Ltd. v.<br>Bijstra (1946) K. B. 58; John Brown, Ltd. v. Bestwick (1951) 1 K. B. Crayford Cottage Society (1922) 1 K. B. 656.

#### $\rightarrow$ A. H. Malik for appellant.

Nazareth for respondent.

JUDGMENT.—This is an appeal from a determination of the Central Rent Control Board ordering the eviction of the appellant tenant from a dwellinghouse in proceedings brought by the landlord to recover possession under section 16 (1) $(k)$ of the Increase of Rent (Restriction) Ordinance, 1949.

The respondent commenced the proceedings by lodging his application for recovery of possession on 9th June, 1950. By paragraph 5 of the application drawn up in the form of a plaint he averred: $-$

"The tenancy was duly determined by a notice to quit and deliver up possession of the premises above-mentioned at the end of the respondent's tenancy for the month of June, 1950. This notice to quit was dated the 20th May and was duly served on the respondent on or about the same day."

It is not disputed that the notice was received on 20th May. The final paragraph of the notice (exhibit 1) reads: $-$

"In view of what is stated above (being the reasons why the landlord wanted possession) we hereby give you notice on behalf of S. B. Paes, the owner of the above plot, to quit and deliver up possession of the above premises on the 1st day of July, 1950, or other day on which your tenancy for the month of June expires."

The appellant replied to that notice on 26th May, 1950 (exhibit 2), protesting that the respondent had no right to interfere with the premises in the appellant's tenancy.

The Board caused the application to be served upon the appellant who was required to file a reply within ten days. On 20th June, 1950, the appellant filed a reply in the course of which (paragraph 6) he denied that his tenancy had been determined by notice to quit as alleged or at all. The hearing took place in October, 1950, and the advocate for the appellant raised the point that since under the notice pleaded and relied upon his client was required to quit by 1st July and the proceedings were instituted on 9th June, the application was premature—it could only have been validly entered after 1st July on the termination of the tenancy and accordingly the Board was not entitled to entertain the application. Prior to this point being taken, and in putting forward his case, the advocate for the present respondent produced the notice (exhibit 1) and the appellant's reply thereto (exhibit 2). After the point had been raised the present respondent's advocate was heard to state that the appellant was a statutory tenant and he was allowed to put in as exhibit 3 a copy of what purports to be a notice to quit dated 31st March, which he said was given on that same date. According to this document the appellant was required to give up possession—"on the 1st May, 1950, or other day on which your tenancy for the month of April expires".

It is a ground of appeal that this paper was wrongly admitted at that stage of the proceedings when the appellant's advocate had concluded his address. Admittedly no objection was taken at the time. I think myself that in all the circumstances and in view of the pleading of the notice of 20th May, it should not have been admitted, but if I am wrong in that I do not consider that its presence upon the record affects the main question for three reasons-(1) the present respondent founded his case for recovery of possession upon the allegation contained in his pleading in application that the tenancy was determined through the notice of 20th May (exhibit 1); (2) there was no proof or admission before the Board that the notice of 31st March was duly served or received. and in proceedings such as these it rests with the landlord to show determination of a tenancy through the serving of a valid notice to quit. Admission has been made before this Court but only for the purpose of argument on the alternative point of waiver; (3) the Board, it seeems plain, did not look to or take into consideration this notice of 31st March: no mention of it is made in the decision but on the contrary consideration was given to the appellant's submission as to the notice of 20th May, and a ruling was given rejecting that submission on the ground that though the case was brought before the notice expired the present respondent had through his reply of 26th May expressed his intention of not vacating on expiry of the notice.

No attempt has been made to stand upon that reasoning of the Board before this Court and I must say I do not comprehend it. In this appeal the respondent. relies on the so-called earlier notice of 31st March. That "notice" in my opinion and for the reasons given does not affect the proceedings. It has been contended in the alternative for the appellant that having regard to section 113 of the Transfer of Property Act, 1882, the notice of 20th May effected a waiver of the notice of 31st March. Even if I thought that it was shown that the notice of 31st March was a good notice for the purpose of these proceedings, I would not resolve this new point involving a question of fact (see 20 Halsbury, page 143) upon appeal. The time to allege and argue a waiver was at the trial before the Board. The question remains whether the suit should properly have been dismissed as being premature. I think the answer to that is clear. At the time the proceedings were instituted the tenancy was still subsisting: the respondent had no right to recover possession and the Board could not entertain an application to evict a contractual tenant. The respondent should have waited until expiry of the notice and on the appellant holding over, thus becoming a statutory tenant, have then instituted the proceedings. If authority be needed for what seems

to me a straightforward proposition, I refer to Aboobaker Bokhairia v. Haiee Ismail, C. A. No. 48 of 1950, in which the Court of Appeal for Eastern Africa. laid down that: $-$

"A prerequisite of an application for ejectment under section 10 of the Aden Rent Restriction Ordinance" (the same principle must apply under our<br>law of rent restriction) "must be that the tenant's contractual tenancy has been properly terminated so that he is holding over as a statutory tenant."

And in Purshotam Bapu v. Dattetraya Rayafi, 10 Bom. (1886) 663 at 670, the Assistant Judge said, and it appears to have been approved on the appeal: -

"He (the tenant) is entitled to a six months notice to quit, which has not been given in this case. The six months must expire before the institution of the suit..."

That case is one of the many cited by Mulla (Transfer of Property Act, 1882, 2nd Edition, page 586) in support of the well-known and accepted proposition of law that: $-$

"In the case of a tenant who holds under a periodic lease which has not been otherwise determined a suit for eviction cannot be maintained, unless a valid notice to quit has been served before suit."

Until the tenancy terminates on expiry of the notice the landlord cannot move by institution of proceedings to evict, for the tenancy still exists and he lacks the right to recover possession, it is surely no argument, nor has it been advanced as one, that the Board can in such circumstances as appear in the instant case, entertain the application and proceed to an order for eviction because at the date of the hearing the appellant has by holding over become a statutory tenant. In Beninga, Ltd. v. Bijstra (1946) K. B. D. 58 at 62, Mackinnon, L. J., said: $-$

"Normally, no doubt, a plaintiff's cause of action must exist at the date of his writ or plaint. The plaintiff's cause of action is a claim to possession of their freehold against a tenant who has received due notice to quit. That cause of action existed on March 20."

By the date mentioned the notice to quit had expired. The learned Judge went on to explain the effect of the Rent Restriction Acts as follows: —

"The Rent Restriction Acts do not forbid the bringing of an action; they only prohibit the granting of certain relief to which the common law would entitle the plaintiff, unless certain conditions have been fulfilled. The question whether those conditions exist must be determined when the question whether the relief claimed may be granted has to be decided, namely at the hearing of the action."

In John Brown, Ltd. v. Bestwick, 1 K. B. (1951) 21 at 25, Cohen, L. J., said: —

It is quite clear, I think, from the cases that were cited that it has been held that in determining whether or not a house is a dwelling house to which the Rent Restriction Acts apply, regard must be had to the position. at the moment of time when the plaint is issued."

And in Newell v. Crayford Cottage Society, 1 K. B. (1922), 656, it was held that where a notice to quit is a necessary preliminary to the acquisition of a right to possession, before the landlord (under the Increase of Rent, etc., Act, 1920) can claim to increase the rent he must have given the tenant a notice to quit and that notice must have expired. I have probably laboured the point unnecessarily. The position is that when he instituted this claim for possession the landlord relied upon a notice to quit which had not expired so as to terminate the tenancy. On 9th June, when the application was filed the contractual tenancy was still in existence and the respondent had no cause of action entitling him to recover possession. The appeal must succeed on this ground.

As to two remaining grounds of appeal I do not find any substance in them. The building plan is not an exhibit and the endorsement thereon referred to is not before me.

The appeal is allowed and the determination of the Board is set aside with costs here and below.