[1952] EACA 304

### APPELLATE CIVIL

### Before DE LESTANG, J.

#### DALIP SINGH, Appellant (Original Respondent)

ν.

# ANDERJI ODHAVJI NATHWANI, Respondent (Original Applicant)

## Civil Appeal No. 758 of 1951

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

Res judicata—Estoppel—Whether judgment directly upon the matter in question— Notice to quit tenancy from month to month.

The respondent being the owner of certain premises which were let on condition that the tenant could not sublet without the landlord's consent, found the premises occupied by the appellant who claimed to have obtained them from two others who in turn were sub-lessees without the landlord's consent.

The respondent applied to the Rent Control Board for possession from the appellant. The Board ordered possession and the appellant appealed. The Appellate Judge found that the Board's order was not one for recovery against a tenant but against a trespasser. He held that the Board had no jurisdiction to make an order for possession against a trespasser unless a similar order had been made against the tenant and that the decision of the Board was in excess of its jurisdiction and set it aside.

The respondent instituted fresh proceedings before the Rent Control Board against the tenant and the appellant. The appellant sought to show he was not a trespasser but was not allowed to do so by the Board who held as between respondent and appellant that the question was res judicata in view of the Supreme Court decision and could not be reopened. The Board made an order against both the tenant and the appellant and the latter appealed to the Supreme Court.

On behalf of the appellant it was contended that the Board was wrong in holding that the question of the appellant being a trespasser was res judicata and that he was estopped from establishing that he was a trespasser. It was further contended that the notice to quit given to the tenant was invalid for if the tenancy is one commencing on the first and expiring on the last day of the month, then the notice is bad, because it should expire on the first of the following month. Held (17-4-52).-(1) The status of the appellant was not res judicata because-

- (a) the question of trespass was merely incidental to the original proceedings before the Board; - (b) such question was not even expressly decided by the Board; - (c) the finding of the Supreme Court on that question was not necessary for the decision of the appeal; - (d) the Board's decision was set aside on the ground of want of jurisdiction. - (2) Similarly a plea of estoppel did not arise for the same reasons as in (1) above.

(3) By virtue of section 106, Indian Transfer of Property Act, a lease from month to month is terminable by fifteen days' notice expiring with the end of the month of the tenancy.

Appeal allowed. Retrial order by R. C. B.

Cases referred to: Attorney General for Trinidad and Tobago v. Eriche and Others (1893) A. C. 518; Rex v. Fulham, etc., Rent Tribunal (1951) 1 A. E. L. R. 482; Rex v.<br>City of London, etc., Rent Tribunal (1951) 1 A. E. L. R. 195; S. P. Marwaha v. Sultanáli Suleman Kassam, 24 (2) K. L. R. 112.

# D. N. Khanna for appellant.

# Nazareth for respondent.

JUDGMENT.—This is an appeal from a decision of the Central Rent Control Board in the following circumstances: —

The respondent is the owner of certain premises which he let on a monthly tenancy to one Dharam Singh in 1943. It was a term of the tenancy that the tenant could not sublet without the landlord's consent. Sometime in 1948 Dharam Singh, without the consent of the respondent, sublet the premises to one Harcharan Singh, For a time Harcharan Singh and one Atma Singh occupied the premises together, but when the respondent returned from India in February, 1949, he found the appellant in occupation. He had apparently been given possession by Atma Singh and Harcharan Singh and claimed to have obtained a lease of the premises from them. Whereupon the respondent took steps to recover possession from the appellant, and eventually on 29th November, 1949, the matter came before the Rent Control Board, which made an order for possession. The appellant appealed to the Supreme Court against the Board's order on the following ground. inter alia: -

"Ground 3. If the appellant was trespasser *ab initio*, the Board had no power to make an eviction order, but the power rested with the Court having the requisite pecuniary jurisdiction."

The appeal was heard by Nihill, C. J. (as he then was), who, dealing with<br>this ground of appeal, said: "There can, I think, be no doubt on the evidence before me and by evidence I include the correspondence, that the status of Dalip Singh is no better than that of a trespasser. Dharam Singh, the tenant, in his evidence, has by implication said so and he has been so regarded by the landlord's advocates. The Board's order, then, is in terms not an order for recovery against a tenant, Dharam Singh, but against a trespasser, Dalip Singh". He then proceeded to show that the Board had no jurisdiction to make an order for possession against a trespasser unless a similar order had been made against the tenant and concluded: "I am therefore constrained to find that the decision of the Board dated 29th November was in excess of its jurisdiction and must be set aside."

Whereupon the respondent instituted fresh proceedings before the Rent Control Board against both Dharam Singh and the appellant. In the course of these proceedings, the appellant sought to lead evidence to show that he was not a trespasser, but was not allowed to do so by the Board, which ruled that "as between the respondent and appellant the question was *res judicata* in view of the decision of the Supreme Court and could not be reopened". The Board. however, does not appear to have enforced its ruling very strictly as it received a good deal of evidence which on the face of this ruling was irrelevant. Nevertheless, it has assumed always that the appellant was a trespasser, and on that assumption made an order for possession against both Dharam Singh and the appellant.

The appellant, for the second time, appeals to this Court on a number of grounds. Grounds 1 to 5 inclusive attack the ruling of the Board that the finding by the Supreme Court that the appellant was a trespasser was res judicata and the consequential refusal of the Board to allow the appellant to lead evidence with a view to showing that he was not a trespasser. The question therefore for decision on these five grounds of appeal is whether the appellant was precluded either by res judicata or estoppel from establishing that he was not a trespasser. As the Privy Council said in Attorney General for Trinidad and Tobago v. Eriche and Others (1893) A. C. 518, at page $522:$ —

"It is hardly necessary to refer at length to authorities for the elementary principle that in order to establish the plea of res judicata the judgment relied on must have been pronounced by a Court having concurrent or exclusive jurisdiction directly upon the point. In the Duchess of Kingston's case, which is constantly referred to for the law on this subject, it is laid down that in order to establish the plea of *res judicata* the Court whose judgment is invoked must have had jurisdiction and have given judgment directly upon the matter in question; but that if the matter came collaterally into question in the first Court, or were only incidentally cognizable by it, or merely to be inferred by argument from the judgment, the judgment is not conclusive."

In that case the defendants were convicted of trespass on the lands in the suit by a Magistrate's Court which was not competent to decide title. On appeal, the conviction was quashed. In a subsequent action by the Crown to try title the defendants raised the plea of res judicata successfully. The Crown appealed and the Privy Council held that res judicata did not arise, that the Magistrate had no jurisdiction to decide an issue of title, and that the Supreme Court sitting in appeal from him could not exercise a jurisdiction which he did not possess. Mr. Khanna, on behalf of the appellant, relies strongly on that case, to show that the plea of *res judicata* cannot arise in the present case. In order to decide this question it is necessary to examine more closely the first proceedings before the Board and the appeal to the Supreme Court. I have been unable to obtain the Board's case file, but it appears from the Supreme Court's judgment from which I have already quoted that the respondent's application was for the ejectment of the appellant whatever his status might be. After hearing some evidence, the appellant's advocate admitted that the appellant had been in occupation of the premises since August, 1948, and agreed to a recovery order being made against him. Whereupon the Board made the following order: "Order for possession of premises to landlord against occupier Atma Singh on or before 15th December, 1949, and order for mesne profits, etc., etc." It will be noted that the Board did not expressly hold that the appellant was a trespasser, but referred to him as "occupier". Since, however, the word "occupier" appears in only one paragraph of the order, namely, section 16 (1) (i), it is reasonable to assume that the order for possession must have been made under that section. It is clear from that section, as Nihill, C. J., pointed out in the appeal itself, that before a landlord can obtain an ejectment order against an occupier who is not his tenant, he must first have obtained an order for recovery of possession against his tenant. Since no such order had been obtained against the tenant Dharam Singh in the present case, it follows that the Board had no jurisdiction to make any order against the appellant occupier. That being so, I agree with Mr. Khanna's submission that the finding by the Supreme Court on appeal that the appellant was a trespasser was not strictly necessary for the decision of the appeal and must therefore be considered *obiter*.

Assuming that the Board in effect decided that the appellant was a trespasser and that it was necessary for the Supreme Court in deciding the appeal to uphold that decision, even then it seems to me that the question as to whether the appellant was a trespasser or not was not directly in issue but merely collaterally or incidentally so in the proceedings before the Board. That this must be so is, I think, clear. The question which the Board had to decide was whether an order for possession should be made. To decide that question, it had of course to inquire into the status of the appellant because different considerations apply to a tenant and to a trespasser, but this inquiry is only collateral to the question which the Board had to decide. The position of Rent Tribunals in England is not materially different. Before they can fix the rent they must first proceed to decide if the tenancy exists and it was held in Rex v. City of London etc.. Rent Tribunal (1951) 1 A. E. R. 195, that this was a collateral question which the tribunal was entitled to decide. Such a decision is, however, never conclusive between the parties. As Devlin, J., said in Rex v. Fulham, etc., Rent Tribunal (1951) 1 A. E. R. 482, at page 488: $-$

"When, at the inception of an inquiry by a tribunal of limited jurisdiction, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether it will act or not, and for that purpose to arrive at some decision on whether it has jurisdiction or not. If its jurisdiction depends on the existence of a state of facts, it must inform itself about them, and, if the facts are in dispute, reach some conclusion on the merits of the dispute. If it reaches a wrong conclusion, the rights of the parties against each other are not affected. For, if the tribunal wrongly assumes jurisdiction, the party who apparently obtains an order from it, in reality takes nothing. The whole proceeding is, in the phrase used in the old reports, *coram non juduice.*"

In these circumstances, applying the principles relating to res judicata which I have previously quoted to the facts of this case, it seems to me that the plea of res judicata cannot succeed here for four reasons:-

- (a) Because the question of trespass was merely incidental to the proceedings before the Board: - (b) because the question was not even expressly decided by the Board; - (c) because the finding of the Supreme Court on that question was not necessarv for the decision of the appeal; and - (d) because the Board's decision was set aside on the ground of want of iurisdiction.

As regards estoppel, although it is clear that a plea of estoppel may arise where a plea of *res judicata* will fail, it must in the present case have the same fate as the plea of res judicata. To give rise to estoppel the point must have been decided with certainty and by a tribunal having the requisite jurisdiction, vide Halsbury's Laws of England, Vol. 13, at page 409. Here I have tried to show that the question of trespass was not expressly decided by the Board and that the Board's decision was eventually set aside for lack of jurisdiction. In these circumstances, estoppel cannot arise.

The next ground of appeal, which is ground 6, reads as follows: —

"6. The Board not having found a term against subletting, were wrong in concluding that section 16 $(1)$ (i) made an assignment of or a subletting of the whole shop, without the consent in writing of a landlord, after the 1st day of December, 1941, unlawful, other than in the case of a statutory tenant, and were wrong in concluding that Harcharan Singh and Atma Singh had not become lawful sub-tenants, and as such in further holding that there was no need to implead them, so as to terminate their outstanding lawful sub-tenancy by an order of the Board in conformity with the provisions of the Ordinance, before making a competent order against the appellant, who claimed under them."

As the proceedings before the Board proceeded on the basis that the appellant was a trespasser, some of the points raised in the ground of appeal were neither taken nor decided by the Board. That being so, the question is merely a hypothetical one, and I do not see the purpose of deciding it here. If I am wrong in the view that I have of the first five grounds of appeal, the question raised by ground 6 will not arise. If I am right, the case would have to go back to the Board to hear evidence on the question whether the appellant is a trespasser or not, and this point can then be decided by the Board.

By the 7th and 8th grounds of appeal the validity of the notice to quit given to Dharam Singh is challenged. Dharam Singh's tenancy was a monthly one in accordance with section 106 of the Indian Transfer of Property Act and terminable by 15 days' notice expiring with the end of the month of the tenancy. The notice to quit is dated 13th July, 1949, and expired 31st July, 1949. It is contended that the notice did not operate to terminate the tenancy because no evidence was called to show that the date when the notice actually expired was in fact the end of the period of the tenancy. It is quite true that there is no express evidence as to when any monthly period began or ended. It is submitted, however, on behalf of the respondent that the validity of the notice to quit was never questioned before the Board and that the appellant is estopped from raising this point now, and that in any event there was some evidence to show that the monthly tenancy began on the first and ended on the last day of each month. That evidence is to be found in the notice to quit itself which claims rent as from 1st June, 1947, to 31st June, 1949. Further, in the application to the Board it is stated that rent is due since the end of August, 1948, and this is not contradicted in the appellant's answer. As there has never been any suggestion by anybody in the course of the proceedings before the Board that the notice was invalid and that the tenancy did not begin on the first of the month, it seems to me that the evidence which I have quoted is conclusive on the point, and that the appellant is estopped from contending the contrary. It is further contended that if the tenancy is one commencing on the first and expiring on the last day of the month, then the notice is bad, because it should expire on the first of the following month. This point was recently considered by my brother, Connell, J. in S. P. Marwaha v. Sultanali Suleman Kassam, 24 (2) K. L. R. 112, where he held that in such a tenancy a notice to quit expiring on the last day of the month was valid. I entirely agree with him, and would add that this appears clearly from the wording of section 106 of the Indian Transfer of Property Act, where it is stated that "a lease from month to month (is) terminable $\ldots$ by 15 days" notice expiring with the end of the month of the tenancy".

In the result, therefore, this appeal succeeds. The decision of the Board is set aside and there will be a retrial at which the Board will receive evidence and decide whether the appellant is a trespasser or not. The appellant will have the costs of this appeal and of the proceedings before the Board which I hereby fix at Sh. 300. The costs of the retrial will be in the discretion of the Board.