[1945] EACA 66

### APPELLATE CIVIL

### Before DE LESTANG. AG. J.

#### J. RODRIGUES. Appellant (Original Defendant)

#### $\cdots$

# C. COSTA CORREA, Respondent (Original Plaintiff)

## Civil Appeal No. 2 of 1945

Landlord and Tenant—Rent Restriction—Suit for ejectment of tenant—The Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, S. 11.

The appellant occupied two rooms in premises of which the respondent was landlord and to which the Rent Restrictions Ordinance applied. It was conceded that appellant held one of the rooms on a tenancy agreement but as regards the second room the respondent contended that appellant held it merely on licence. For about four months prior to the proceedings the appellant allowed another man to share the rooms. The respondent sought to recover possession of both rooms under section 11 (1) (d) of the Rent Restriction Ordinance. The trial magistrate found: —

- (a) that the defendant was tenant of the plaintiff in respect of one room only and licensee in respect of the other: - (b) That the plaintiff reasonably required the rooms for his use: - $(c)$ that there was, at various times, other accommodation available for the defendant: and

(d) that the defendant had sub-let the rooms without leave of the plaintiff; and ordered the electment of the Appellant under section 11 (1) (d) and section 11 (1) $(h)$ of the Ordinance.

The appellant appealed.

Held (16-11-45).—That there was no evidence of sub-letting and that $\hat{S}$ . 11 (1) (h) did not apply.

(2) That to recover possession under S. 11 (1) $(d)$ it is for the plaintiff to prove the availability of suitable accommodation at the time of the hearing. Appeal allowed.

Cases referred to: Campbell v. Lill (1926) W. N. 139; Roe v. Russell (1928) 2 K. B. 117; Russoff v. Lipovitch (1925) 1 K. B. 628.

Khanna for the Appellant.

Salter for the Respondent.

JUDGMENT.—In this case the plaintiff instituted proceedings in the subordinate court to recover possession of two rooms occupied by the defendant in premises to which the Increase of Rent and of Mortgage Interest (Restrictions) Ordinance applies. The plaintiff's contention was that the defendant was his tenant in respect of one of the rooms and a licensee as regards the other and he sought to recover possession on the ground that he required the rooms for his own use. It would appear that he founded his claim on section 11 (1) (d) of the Rent Restriction Ordinance which reads as follows: -

"No order for the recovery of possession of any dwelling-house to which this Ordinance applies, or for the ejectment of a tenant therefrom, shall be made unless-

the dwelling-house is reasonably required by the landlord for occupation as a residence for himself or for his wife or minor children, or for any

person bon fide residing, or to reside, with him, or for some person in his whole time employment or in the whole time employment of some tenant from him, and (except as otherwise provided by this sub-section) the Court is satisfied that alternative accommodation reasonably equivalent as regards rent and suitability in all respects, is available;".

The defendant, on the other hand, contended that he was the plaintiff's tenant in respect of both rooms and although, like the plaintiff, he also made no reference to the Rent Restriction Ordinance, it is fairly obvious from the terms of his defence that he claimed the protection of that Ordinance alleging that no suitable alternative accommodation was available.

The learned magistrate who tried the case found *inter alia* the following relevant facts proved: $-$

- (a) That the defendant was tenant of the plaintiff in respect of one room only and licensee in respect of the other; - (b) that the plaintiff reasonably required the rooms for his use; - (c) that there was, at various times, other accommodation available for the defendant; and

(d) that the defendant had sub-let the rooms without leave of the plaintiff. $\frac{d}{dt}$

On these facts he proceeded to give judgment for the plaintiff, as it appears, under section 11 (1) (d) and section 11 (1) (h) of the Ordinance.

Although, as I have already stated, the Rent Restriction Ordinance is not mentioned by name in the pleadings at all it is quite obvious that the plaintiff based part of his claim at least, i.e. the rented room, on section 11 (1) (d) of the Ordinance and the case was fought throughout on that basis. The question of sub-letting was never raised and was not an issue in the proceedings. It follows, therefore, that the learned magistrate was not justified in founding his judgment on section 11 (1) $(h)$ of the Ordinance, a point not in issue in respect of which the parties were not given any opportunity of adducing evidence or being heard. Pleadings would be of no use whatever if the Courts were, without the pleadings being properly amended, to pronounce judgment on issues not raised in them.

Again on this point of sub-letting it appears to me fairly obvious that there was no evidence on the record to justify the inference drawn by the learned magistrate that there had been a sub-letting by the defendant. The only evidence on the record is to be found in the cross-examination of the defendant when he said "Another man is now sharing my rooms at plaintiff's. He has been there for four months." To constitute a letting there must be a delivery of exclusive possession of the premises let and a person who shares a room rented by another cannot be said to have exclusive possession of it. Consequently prima facie the words used by the defendant are not susceptible of the inference drawn from them by the learned magistrate and in any event to decide whether there had been a letting or not it would have been necessary to probe the matter further and ascertain all the facts. But even if the magistrate were right in his finding I entirely agree with Mr. Khanna's submission that the sub-letting did not fall within the provisions of section 11 (1) $(h)$ so as to deprive the defendant of the protection of the Ordinance. This section provides:-

"The tenant without the consent of the landlord at any time after the 1st day of December, 1941, or the prescribed date, whichever is the later, assigned or sub-let the whole of the dwelling-house or sub-let part of the dwelling-house, the remainder being already sub-let."

The language of that section is quite clear. It says in effect that a tenant is only deprived of the protection of the Ordinance if he sub-lets the whole of the demised premises at any time. This is also the interpretation which the English Courts have placed upon a similar section in the corresponding English Acts. vide Campbell v. Lill (1926) W. N. 139. Roe v. Russell (1928) 2 K. B. 117. I think the reasons which I have given show clearly that as far as the order for possession of the rooms rests on section 11 $(h)$ it cannot stand.

I will now consider whether the order can be supported under section 11 (1) $(d)$ .

For a plaintiff to obtain an order under that section he must satisfy the Court that

(1) he reasonably requires the rooms for occupation as a residence for himself and/or family.

The learned magistrate was satisfied on that point and no exception can be taken to his decision.

(2) alternative accommodation is available;

(3) such accommodation is reasonably equivalent as regards rent and suitability in all respects to that occupied by the tenant.

(4) in the opinion of the Court it is reasonable to make the order.

On points (2) and (3) the learned magistrate appears to have misdirected himself. He ruled, wrongly in my view, that it was for the defendant to prove the non-availability of accommodation and he did not appear to agree with learned advocate's submission that accommodation must be proved to be available at the date of hearing. The law in my view is well settled on these two points. It is for the plaintiff to prove the availability of alternative accommodation at the time of the hearing. It is true that the magistrate did hold that the availability of accommodation at various times had been proved but that is not enough and nowhere is shown any definite finding by him that such accommodation was available at the time of the hearing. Indeed from the evidence it would appear that although accommodation of some sort existed at various times no such accommodation in fact existed at the time of the hearing. Also the further question whether the alternative accommodation was reasonably equivalent as regards rent and suitability in all respects to that enjoyed at the time by the tenant was not considered at all and from the evidence can only be answered in the negative. In fact what happened was that the learned magistrate, having found that the defendant had contravened the ordinance by sub-letting without permission, thought he was relieved of the necessity of examining the question of alternative accommodation.

As regards point (4) it is difficult to say whether the learned magistrate considered whether it was reasonable to make the order or not as he appears to lay great stress in his judgment on the reasonableness of the plaintiff's request for his rooms. On the whole, however, it cannot, I think, be said that he did not consider the matter since there was material on which he could form a decision and he appears from his questions to the defendant to have applied his mind, as learned advocate put it "to the comparative merits of family v. furniture".

Nevertheless section 11 (1) (d) can find no application in the case and the order for possession made thereunder cannot stand also.

It is contended for the respondent that if the order for possession cannot be supported under the Rent Restriction Ordinance the learned magistrate having found that one of the rooms was occupied on licence the order for possession in respect of that room should not be interfered with as it is not protected by the Rent Restriction Ordinance.

It is contended on the other side that the finding of the magistrate cannot be supported on the evidence and in any event that the case proceeded throughout on the basis of the Ordinance applying to both rooms and that the respondent's submission at this stage should not be considered as a question of the jurisdiction of the lower court might be involved, which was not raised at the trial.

As regards the magistrate's finding of fact I am satisfied that there was material upon which he could have come to the conclusion which he has reached and although this Court might perhaps not have arrived at the same conclusion it is not in a position to say that the magistrate was definitely wrong in his appreciation of the evidence, I am, therefore, not prepared to interfere with his finding of fact.

On the legal argument I must confess that I have been greatly exercised. I think that in the special circumstances of this case since the defendant obtained the use of the second room by virtue of the fact that he was tenant of one room and since the suit proceeded throughout on the basis that the Rent Restriction Ordinance applied to both rooms, the proceedings came within the Ordinance. In that connexion the words of Bankes L. J., in *Russoff v. Lipovitch* (1925) 1 K. B. p. 628 at page 634 seem very apt: $-$

"If the landlord is seeking to turn out the tenant on grounds which are to be found only in the statute, it seems to me impossible to say that the action, although in a sense it is a common law action, is not under the circumstances a 'claim or other proceedings arising out of this Act'".

I do not think, therefore, that the respondent's submission can be entertained in this Court.

Even if I were wrong in so holding and the claims in respect of each room could be severed from each other, the one, as it were, being under the normal jurisdiction of the magistrate and the other under the Rent Restriction Ordinance I am not at all sure that the magistrate could have had any jurisdiction to make the order in respect of the room held on licence.

I allow the appeal with costs both in this Court and in the court below.

I also grant the cost of the application for stay of execution to the appellant.