[1952] EACA 313

### APPELLATE CIVIL

#### Before BOURKE, J.

#### **BANTA SINGH, Appellant**

## SARWAN SINGH, Respondent

### Civil Appeal No. 836 of 1951

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

Landlord and tenant—Appeal from Rent Control Board—Whether appeal ground conflicting with ground advanced before Rent Control Board can be advanced.

The appellant appealed before the Central Rent Control Board in an application for eviction by the landlord on the ground of non-payment of rent. The appellant did not file any written defence but attended at the hearing of the application and maintained that he was the owner of the premises. On appeal he maintained that the tenancy had not been determined by a valid notice to quit.

Held (11-7-52).—The appellant is estopped from contending that the notice was invalid and it must be taken that there was an admission of the fact of such determination which it was competent for the Board to act upon.

Appeal dismissed.

Cases referred to: Dalip Singh v. Anderji Nathwani, 25 (1) K. L. R. 81; Popatlal Padamshi v. Shah Meghji Hirji, C. A. No. 32 of 1951 (E. A. C. A.).

Bhandari for appellant.

D. N. Khanna for respondent.

JUDGMENT.—The respondent as a landlord applied to the Central Rent Control Board seeking the eviction of the appellant as tenant from certain premises on the ground of non-payment of rent, and also claiming payment of arrears of rent.

The Board, in accordance with its recognized practice, and as is not in dispute, caused a notice to be served upon the appellant, accompanied by a copy of the application, instructing him to file a reply in defence within ten days in default of which the matter would proceed to adjudication without further notice.

The appellant did not enter any written defence but he attended at the hearing and was given the opportunity of cross-examining and putting forward his defence. He made the case, which he maintains here, that he was not a tenant but was the owner of the premises.

The Board plainly accepted the evidence of the respondent and gave the eviction order together with an order for payment of a substantial sum as the accumulated monthly rent due from the commencement of the tenancy on 1st November, 1942.

It is on the record that it appeared to the Board, when the appellant attended before it at the hearing, that he was under the influence of drink. It is also entered that the Board "will proceed ex parte", which, however, it did not dothere is no complaint on that score or any suggestion by the appellant that he was in such a condition as not to understand the proceedings in which he took part, indeed it is expressly stated on his behalf that he was not intoxicated and that he fully comprehended the proceedings.

ν.

It is said that the main ground of appeal is that the Board had no jurisdiction to try the suit as the tenancy had not been determined by a valid notice to quitalthough the appellant's case throughout has been that there was no tenancy and that he was the owner of the premises. I will deal first with the other grounds. It is put forward that the appellant was not given an opportunity to call his witnesses and that a request for adjournment to engage an advocate and bring witnesses was unjustly refused. There is no suggestion that the record is incomplete. It is plain from the record that inquiry was made of the appellant as to whether he had any witnesses he wished to call. He informed the Tribunal that he had no witnesses present and said that his—"witnesses are population of Ruiru—can bring 1, 2, 3—as many as the Court wants". There was no application for an adjournment on any ground. There is as little substance in the other six grounds of appeal. There was evidence as to the tenancy and the monthly rent. There is no reason to think that the Board wrongly weighed the evidence as alleged in satisfying itself as to the facts or that, as alleged, the Board was prejudiced against the appellant by evidence as to his drinking habits and conduct as a result on the premises, evidence to which no objection was taken at the time. Finally the case was not made by the appellant, as is alleged in ground 4, that the respondent was his nephew holding the premises in trust for the appellant. Having cross-examined the respondent and made no such suggestion the appellant contented himself with stating as his defence to the action—"The building is mine". It seems to me, though I have touched upon them, that as regards some of these grounds of appeal alleging that due weight was not given to certain portions of the evidence and that the determination was against the weight of the evidence, the appellant's advocate has lost sight of the provisions of section 7 of the Increase of Rent (Restriction) Ordinance, 1949, which permits appeal only on a point of law or of mixed fact and law.

I return to the ground of appeal alleging that "the tenancy" had not been determined by a valid notice to quit. It would be a strange thing if it were open to the appellant to succeed on this new ground when the sole case he made below-and asserts again through his advocate before this Court-was in disclaimer of any tenancy and in assertion of title as the owner. The appellant is attempting to blow hot and cold at the same time. But the respondent is not suing upon a forfeiture, for the disclaimer was not before suit filed (see Mulla on Transfer of Property Act, 2nd Edition, page 647); as revealed by the documentary exhibits emanating from the appellant—apart from the testimony of the respondent -it appears that the appellant in 1944 and 1945 was accepting the existence of a tenancy at a monthly rent of Sh. 225.

In my opinion in all the circumstances it is not now open to the appellant to question the validity of the notice to quit of 14th June, 1945 (exhibit 5). It was alleged in the application to the Board that the tenancy had been duly determined by a notice to quit. The appellant never questioned that; he simply disclaimed verbally any tenancy and filed no answer. It is true, as in *Dalip Singh* $v$ . Anderji Nathwani (C. A. No. 758 of 1951—Supreme Court), that there is no express evidence as to when any monthly period began or ended; but the notice<br>dated 14th June, 1945, does claim rent—"at the rate of Sh. 225 per month up to the end of last month" (i.e. May) and it is made to expire on the last day of July. The respondent's letter of 5th June, 1944 (exhibit 3), claims rent in arrear up to the end of May, 1944. The evidence of the respondent was that this was in respect of 19 months' rent at Sh. 225 a month, that is, from 1st November, 1942. By his reply (exhibit 4) the appellant merely requested an approach for settlement. Again the respondent testified that the agreement was that the appellant should pay Sh. 225 a month as rent. The evidence may not be as strong as in the case under reference in which it was held by de Lestang, J., as follows: "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 the appellant is estopped from contending the contrary". It is my opinion, and I so hold, that having regard to the attitude of the appellant throughout and the evidence such as it is, the appellant is equally estopped from contending now that the notice was invalid and that the tenancy did not begin on the first of the month. I would go further and hold that in the circumstances, in the absence of any denial of the allegation contained in the respondent's pleading that the tenancy was duly determined by a notice to quit—there was not even a suggestion at any time before the Board to the contrary-it must be taken that there was an admission of the fact of such determination which it was competent for the Board to act upon and dispense with evidence of the commencing day of the tenancy. Popatlal Padamshi v. Shah Meghji Hirji (E. A. C. A.), C. A. No. 32 of 1951. It is too late now to seek to go back upon such admission.

As a matter of comment, it is really quite remarkable the number of cases that come up on appeal from the Board in which the validity of the notice to quit is never questioned for a moment at the trial, but is brought up for the first time as the main piece of artillery in attack upon an order of eviction in appeal before this Court. It is to be hoped that litigants will realize the dangers of such a course.

The appeal is dismissed with costs.