D'souza v John (Civil Case No. 252 of 1951) [1952] EACA 275 (1 January 1952)

ORIGINAL CIVIL

Before WINDHAM, J.

C. S. A. D'SOUZA, Plaintiff

## UNITED UNATION, Defendant JOHN FERNANCED claume as $\mathbb{L}^2 \times \mathbb{L}^2$ $\mathcal{L}_{\mathcal{A}}$ Civil Case No. 252 of 1951

Increase of Rent Restriction Ordinance-Supreme Court's original jurisdiction-Position of Licensee.

The plaintiff a tenant of certain premises entered into a partnership with four others and allowed the firm to occupy the premises as licensees. The latter ceased to be a partner and the remaining partners sold the business to the defendant who occupied the premises without the plaintiff's consent. The plaintiff commenced eviction proceedings in the Supreme Court alleging the defendant was a trespasser.

Defendant's counsel argued that the Supreme Court has no jurisdiction to try the case as the claim is one for the Rent Control Board to decide under section 5 (1) (f) (i) of the Ordinance.

Held $(22-4-52)$ —(1) By section 5 (1) (f) (i) the Board had power to make an order for the recovery of possession of premises whether in the occupation of the tenant or of any other person, and such words included an alleged trespasser.

(2) By section 31 (3) enacted by Ordinance 34 of 1951 the Supreme Court had concurrent jurisdiction with the Board subject to costs being awarded in the subordinate Court scale.

Case referred to: Damji Devji and Others v. Noronha, 18 E. A. C. A. 54.

## Holland for plaintiff.

## Bhandari for defendant.

RULING.—The plaintiff sues the defendant for recovery of possession of<br>premises of which the plaintiff claims to be a monthly tenant. According to the plaint the plaintiff, who had taken possession of the premises on 1st March, 1950, entered into partnership with four other persons under the name of "United Drapers" on 1st April, 1950, and permitted the firm to occupy the premises as his licensees. In August, 1950, it is alleged in the plaint that the plaintiff ceased to be a partner in the firm, and that some time later the remaining partners sold the business of "United Drapers" to the defendant who, without the plaintiff's permission, occupied the premises. Hence the present action for the eviction of the defendant (notice to quit having been duly given) who according to the plaint is a trespasser, for recovery of possession, and for damages.

Counsel for the defence has raised the preliminary point that this Court has no jurisdiction to try the case, in that the claim is one which the Rent Control Board is given power to try under section 5 (1) $(f)$ (i) of the Increase of Rent (Restriction) Ordinance, 1949. Although it is not expressly so alleged in the plaint, learned Counsel for the plaintiff has conceded from the bar that the premises in question are premises to which that Ordinance applies.

By section 5 (1) (f) (i) the Board is given power to make "an order for the recovery of possession of premises whether in the occupation of a tenant or of any other person". Now it seems to me that this is precisely the relief which the plaintiff is seeking. According to the plaint the defendant is not a tenant, though according to the statement of defence the defendant is a lawful tenant of the premises. Now jurisdiction is determined according to the allegations in the plaint. And if the defendant is (as the plaint alleges) not a tenant (which term by definition includes a sub-tenant) then he must, in my view, fall within the category of "any other person". and the claim for recovery of possession must therefore fall within the terms of section 5 (1) (f) (i). It is urged by learned counsel for the plaintiff that the words "any other person" must be limited to mean any person who, according to the plaint, claims or purports to be a tenant or sub-tenant. But I can find no reason for so cutting down the plain face meaning of the words. At the very least they must in my view extend to a case where, as here, the main point in dispute is whether the defendant whose eviction is sought is a tenant or not, the plaint alleging that he is not and the statement of defence alleging that he is.

Since then, section 5 (1) (f) (i) applies to this case, the Rent Control Board has power under the Ordinance to order the recovery of possession which is sought. That being so, has the Supreme Court any concurrent jurisdiction to try it? The answer would seem to be clearly furnished by section 31 (3) of the Increase of Rent (Restriction) Ordinance, 1949, as enacted in the Increase of Rent (Restriction) (Amendment No. 2) Ordinance, No. 34 of 1951. The new section 31 (3) reads as :follows: $\longrightarrow$

"31 (3). If a person takes proceedings under this Ordinance in the Supreme Court-

- (a) The provisions of sections 16 and 17 of this Ordinance shall apply in relation to such proceedings as if the Supreme Court had been specifically mentioned therein; and - (b) if such proceedings could have been taken in the Court or before the Board he shall, if successful, only be entitled to recover costs on the subordinate Court scale."

This new paragraph $(b)$ of section 31 (3) substantially reproduces section 31 (2) of the Ordinance as it was before its amendment in 1951, but with the vitally important difference, so far as concerns concurrent jurisdiction of the Supreme Court and the Board, that whereas the old section 31 (2) spoke of proceedings which could have been taken "in the court" (which by definition means a subordinate Court of the first class) the new section 31 (3) (b) speaks of proceedings whch could have been taken "in the Court or before the Board". This clearly contemplates that the Supreme Court and the Board have concurrent jurisdiction with regard to matters which the Board is empowered to determine and that there is no ouster of the Supreme Court's jurisdiction in such cases, subject only to costs being awardable on the lower scale. The decision of the Court of Appeal for Eastern Africa in Damji Devji and Others v. Noronha, 18 E. A. C. A. 54, in which it was decided that in such cases the jurisdiction of the Supreme Court is by necessary implication ousted, was decided before the amendment of section 31 in 1951. and was based (as is abundantly clear from the judgments and in particular from that of Lockhart-Smith, J. A.) on the wording of the old section 31 (2), where the words "or before the Board" did not appear. The position is entirely altered by the inclusion of those words in the amendment of 1951, and that case cannot be cited as authority with regard to the jurisdiction of the Supreme Court in such $\mathcal{L} = \mathcal{L} \cup \mathcal{L}$ cases since the amendment. $\mathbb{R}^2$

$\therefore$ I accordingly rule that this Court has jurisdiction to try the present case.