[1951] EACA 325

## APPELLATE CIVIL

#### Before WINDHAM, J.

# VALJI LALJI PARMAR, Appellant (Original Claimant/Landlord)

$\boldsymbol{\nu}$

# (1) CHUNILAL KAPOOR, (2) UKABHAI and (3) SHANTILAL, Respondents (Original Respondents/Tenants)

### Civil Appeal No. 890 of 1950

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

Increase of Rent Restriction Ordinance, 1949—sub-letting in 1948 of part of premises remainder not being already sub-let-Effect of section 16 (1) (i)-Section 28 and section 35 of the 1949 Ordinance and of section 8 (1) (h) Increase of Rent Restriction Ordinance, 1940.

It was found by the Central Rent Control Board that was no agreement between the landlord (appellant) and respondents (tenant and sub-tenants) not to sub-let the premises or part of them without appellant's consent. It was also found that the first respondent had sub-let a part of the premises without appellant's consent in 1948, the remainder not being already sub-let. Eviction was sought under section 16 (1) (i) of Ordinance $22/49$ .

*Held* $(16-7-51)$ .—(i) Section 16 (1) (i) makes it a ground for eviction to sub-let the whole or the part of the premises without the landlords consent, after commencement of the Ordinance, viz.: 6th September, 1949.

(ii) Section 28 lays down (subject to certain exceptions of tenancies exceeding one year's residue) that no tenant shall sub-let the whole or part even in the absence of a covenant to that effect.

(iii) Section 35 makes it clear that the provisions of the 1949 Ordinance are not retrospective and that the Rent Ordinance, 1940, continues in force until 6th September, 1949.

(iv) The sub-letting in the instant case is governed by the Ordinance of 1940 of which section 8 (1) (h) does not govern the instant case which is the sub-letting of a part where the remainder is not already sub-let.

### Sirley for the Appellant.

## D. N. Khanna for the Respondents.

JUDGMENT.—This is an appeal by a landlord against a refusal by the Central Rent Control Board to order the eviction of the respondents on the ground of sub-letting without his written consent. A document in English purporting to be a written agreement of tenancy was produced, signed by the appellant and the first respondent (the other respondents are his sub-tenants) in which there was a clause stipulating that the respondent was not at liberty to sub-let the leased rooms and kitchen or any portion thereof wihout the appellant's prior consent in writing. The respondent, however, appended a signed footnote to the agreement, written in Landi, contemporaneous with the signature of the agreement, stating—"I can sublet the said rooms and kitchen to anybody and the landlord cannot object to such sub-letting. I do not agree to the contents of the above agreement since I do not know English $\ldots$ ."

After hearing evidence on the circumstances of the signing of this agreement, and on perusing the agreement itself, together with the foot-note, the Board ruled that there was no agreed condition against sub-letting. Their ruling to my mind

was clearly correct. Even if the respondent did sign the main part of the agreement, which contained the clause against sub-letting, his signed foot-note made it clear that he was not agreeing to that clause. Any argument, such as that advanced by learned counsel for the appellant, based on the doctrine that in written instruments. other than wills the earlier of two conflicting clauses prevails is quite inapplicable in cases where, as here, the contrary intention of one of the signatories is manifestly apparent.

It is doubtful from the subsequent wording of their decision whether the Board took the view that there was merely no agreement not to sub-let without written consent, or whether they took the wider view that, the minds of the two contracting parties not being at one on that point, it was a case of "non est factum", the whole agreement being void by reason of a lack of consensus ad idem. I consider this latter view is the correct one, and I think the Board were of the same opinion. In any event the point is immaterial, for in either case there was no agreement not to sub-let the premises or any part of them without the appellant's consent; and it was on that ground alone that eviction was sought.

The Board found, rightly in my view on the evidence, that the first respondent had sub-let without the appellant's consent a part but not the whole of the leased premises, the remainder not being already sub-let, and that he had done so in 1948. That being so, and in the absence of an agreement not to let part of the premises without the landlord's written consent, the appellant had no cause of action for eviction under Section 16 (1) (i) of the Increase of Rent (Restriction) Ordinance, 1949, when the case came before the Board in 1950. That Ordinance came into operation on 6th September, 1949. By section 16 (1) (i) it makes as a ground for eviction the sub-letting of the whole or a part of the leased premises without the landlord's consent, after the commencement of the Ordinance. By section 28 it lays down that (subject to certain exceptions) no tenant shall sub-let the whole or part of the leased premises, even in the absence of any covenant to that effect. But section 35 makes it clear that the provisions of the Ordinance of 1949 are not retrospective, and that the Ordinance of 1940, which it repeals, is deemed to have continued in force until 6th September, 1949, when the repealing Ordinance came into effect. Thus the sub-letting in 1948 by the first respondent is governed by the Ordinance of 1940. Under that Ordinance there was no section corresponding to section 28 in the Ordinance of 1949, nor did section 8 (1) $(h)$ of the 1940 Ordinance which corresponds to section 16 (1) (i) of the 1949 Ordinance, cover a case like the present, namely a sub-letting of part of the leased premises where the remainder is not already sub-let.

Accordingly the Board were right in holding that the appellant had not made out a case for evicting the respondents, and in refusing to order their eviction.

It is difficult to understand the remaining ground of appeal, which states that the Board erred in not considering the first respondent as a statutory tenant. In fact the Board made no finding one way or the other on this point, nor was it necessary for them, nor is it necessary for this Court, to do so. For whether the first respondent be a statutory tenant or a contractual tenant (under a contract implied through the acceptance of rent) the position is the same, namely that in sub-letting a part of the premises in 1948 without his landlord's consent he made himself liable to eviction neither by infringing any contractual undertaking nor by bringing himself within the operation of any provision of the law then in force concerning sub-letting without consent.

For these reasons this appeal is dismissed with costs here and below: costs below are fixed at Sh. 200.