[1952] EACA 301

## - APPELLATE CIVIL

#### Before DE LESTANG, J.

## (1) AMBALAL N. PATEL, (2) CHHOTABHAI J. PATEL, Appellants

## (Original Plaintiffs)

# PURSHOTTAM M. AMIN, Respondent (Original Defendant) Civil Appeal No. 38 of 1951

(Appeal from the decision of the Resident Magistrate's Court at Kisumu— H. G. Sherrin, Esq.)

Landlord and tenant—Increase of Rent (Restriction) Ordinance—Reasonableness.

A landlord applied for possession of certain premises subject to the Increase of Rent (Restriction) Ordinance on the grounds:

- (1) Under section 16 (1) (b) the tenant was guilty of being a nuisance and annovance to other occupants. - (2) Under section 16 (1) (o) the premises in the occupation of the tenant were overcrowded.

The Magistrate did not decide the first issue but found as a fact that the premises let were overcrowded. He also found that the rest of the house in the landlord's occupation was just as overcrowded. He refused an ejectment order on the ground that in the circumstances it would not be reasonable.

Held (15-4-52).—The Magistrate having his decision on reasonableness solely on the fact of the landlord's overcrowding and ignoring all other factors had misdirected himself.

Appeal allowed. Retrial ordered.

Case referred to: Cumming v. Danson (1942) 2 A. E. R. 653.

Nowrojee for appellant.

Carvalho for respondent.

JUDGMENT.—This is an appeal from the decision of the Resident Magistrate, Kisumu, dismissing a landlord's application for possession of certain premises to which the Increase of Rent (Restriction) Ordinance applies on the ground that it was not reasonable to make the order.

- The landlord instituted proceedings for possession on two grounds, viz.: — - (1) Under section 16 (1) (b) that the tenant had been guilty of conduct which was a nuisance and annoyance to the other occupiers. - (2) Under section 16 (1) $(o)$ that the premises in the occupation of the tenant were overcrowded.

The tenant denied the charges and contended that it would be unreasonable owing to the shortage of accommodation to eject him.

The learned Magistrate did not decide the issue of nuisance but found as fact that the premises let to the tenant were overcrowded. He also found, however, that the rest of the house in the occupation of the landlords was just as overcrowded as that in the occupation of the tenant and concluded: "That being so I do not consider it reasonable to make an order for the ejectment on the

application of the landlords". He went on to express the view that it would have been reasonable to make the order if the landlords either (1) had kept their part of the premises free from overcrowding or (2) were being compelled to remedy the state of overcrowding on their premises.

The point, therefore, for decision in this appeal is whether the learned Magistrate correctly applied his mind to the question whether it was reasonable to make an order for possession.

Section 16 (2), Increase of Rent (Restriction) Ordinance, gives a general discretion to the Court to make orders for possession. The section says that the Court must be satisfied that it is reasonable to make the order. Dealing with this matter in *Cumming v. Danson* (1942) 2 A. E. R. 653, Lord Greene, M. R., said this at page $655:$ —

"In considering reasonableness under section 3 (1), it is, in my opinion, perfectly clear that the duty of the Judge is to take into account all relevant circumstances as they exist at the date of the hearing. That he must do in what I venture to call a broad, common-sense way as a man of the world, and come to his conclusion giving such weight as he thinks right to the various factors in the situation. Some factors may have little or no weight, others may be decisive, but it is quite wrong for him to exclude from his consideration matters which he ought to take into account."

It is also well settled that a Court of Appeal will not interfere with the exercise by a Judge of his discretion if there was some material before him on which he could have arrived at his decision and he has not obviously applied a wrong principle of law, or based it on some quite extraneous factor.

The learned Magistrate based his decision on reasonableness solely on the fact that the landlords themselves were overcrowding in their portion of the premises and ignored everything else such as that the tenant not only had rendered himself liable under the law to be ejected for overcrowding but would also continue to overcrowd if he were left in possession. He also ignored the landlords' offer to allow the tenant to remain in possession if he would remedy the state of overcrowding. It seems to me also that the overcrowding of the landlords is an extraneous factor and in any event a factor of very little or no weight on the question of reasonableness. The learned Magistrate also in my view misdirected himself in suggesting that a landlord whose premises are overcrowded ought never to be allowed to recover possession on the ground of overcrowding by his tenant.

Bearing in mind the well-settled principles which I have quoted, I consider that the misdirections of the learned Magistrate in this case are too serious to permit the decision to stand. The appeal is accordingly allowed but there will be a re-trial before another Magistrate. The appellant will have the costs of this appeal and of the previous trial. The costs of the re-trial will follow the result of that trial.

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