Mendonca v Malik (Civil Case No. 498 of 1949) [1950] EACA 29 (1 January 1950)

## ORIGINAL CIVIL

#### Before de LESTANG. J.

## PAUL SEBASTIAN MENDONCA, (Plaintiff)

$\mathcal{V}_{\star}$

# M. S. MALIK, (Defendant)

#### Civil Case No. 498 of 1949

Increase of Rent Ordinance—Ejectment—Trespass—Damages may be more than standard rent—Punitive damages.

The plaintiff brought an action to eject the defendant from a room on the ground that he was a trespasser. He also claimed damages in respect of the trespass.

Held (26-6-50).—The plaintiff was entitled to an order for ejectment. With regard to damages, although the standard rent of the room was Sh. 30 per month the plaintiff was entitled to damages for rent lost at Sh. 100 per month which was the rent at which the room had actually been let. In addition he was entitled to punitive general damages for the trespass assessed at Sh. 3,000.

## Nazareth for the plaintiff.

## D. N. Khanna for the defendant. $D$

JUDGMENT.—The plaintiff in this suit seeks to eject the defendant from a room in Sheikh Building, Victoria Street, on the ground that he is a trespasser therein, and claims damages for the trespass.

In 1942 the plaintiff became the tenant of two rooms in Sheikh Building from one Noordin Gulmahomed Sheikh at the monthly rental of Sh. 93/50. His tenancy has never been determined. In 1946 with the consent of his landlord he sub-let one of the rooms to a Mr. Neumann at a monthly rental of Sh. 100. On the 13th April, 1949, Mr. Neumann vacated the room and the defendant took possession of it and has occupied it ever since against the will of the plaintiff. The plaintiff's case is that on the 12th April, 1949, Mr. Neumann informed the plaintiff that he was moving out of the room and that somebody else was trying to take possession of it. The plaintiff thereupon told Mr. Neumann that he wanted vacant possession of the room and asked him to hand over the keys to him. Mr. Neumann made no reply. On the morning, of the 13th Mr. Neumann began moving out his furniture and effects but before he had completely finished doing so the defendant moved in against the plaintiff's will. The defendant's case is that on the 19th March, 1949, the plaintiff agreed to let the room occupied by Mr. Neumann to him if he could persuade Mr. Neumann to vacate the room, and that in consequence of that agreement he had approached Mr. Neumann and had arranged for Mr. Neumann to move into other premises. The defendant says that on the morning of the 13th while Mr. Neumann was in process of vacating the room the plaintiff repudiated his agreement and told him that he would not allow him to occupy the room vacated by Mr. Neumann. The Defendant, however, ignored plaintiff's injunction and took possession of the room in the afternoon of the same day. He says, of course, that he was given possession by Mr. Neumann. It is therefore necessary to record Mr. Neumann's version of the incident.

Mr. Neumann said that he had discussions lasting several weeks with Sheikh Fazal Ilahi regarding his giving up possession of that room in exchange for premises elsewhere and that he finally agreed to the proposal provided the consent of the plaintiff was obtained. He said that the agreement between himself and Seikh Fazal Ilahi at which the defendant was present took place shortly before the 13th April and that he received a cheque from the defendant in refund of

the rent which he had already paid in advance to the plaintiff for the month of April. He said that on the 13th he vacated the room and that while he was removing his safe the defendant moved his furniture in without his permission. He realized then that all was not well between the plaintiff and defendant and being in doubt as to whom to hand over the keys he sent them to the Rent Control Board. Mr. Neumann stated definitely that'he never consented to the defendant taking possession of the room; that he did not give possession of the room to anybody, but simply left for good after having informed the plaintiff of his intention of doing so on the previous day. I see no reason to doubt Mr. Neumann's evidence. His conduct at the time fully supports it, and he has no real interest in the outcome of the case. From Mr. Neumann's evidence, and from the other undisputed evidence in the case, it is abundantly clear to me that what in effect took place was that Mr. Neumann on the 12th informed the plaintiff that he was leaving on the following day and that plaintiff agreed to his so doing, adding, however, a warning not to part with the possession of the room to anybody else. On the following day Mr. Neumann gave up possession of this room completely. He took away all his furniture; he took away his own padlocks, and he handed over the keys to the Rent Control Board to be given to whosoever was entitled to the room. He could not do more to abandon all his interests in that room. As regards the plaintiff he clearly agreed to Mr. Neumann leaving and told him he was prepared to accept possession of the room. He was, however, prevented from physically taking possession by the action of the defendant. If that is not a surrender of a tenancy then I do not know what is one. There was clearly a yielding up of the tenancy by the tenant and an acceptance of the possession by the landlord. I decide the first question without any hesitation in the affirmative.

The defendant contends that there was a sub-letting of the room from Mr. Neumann to him before the surrender took place. The defendant relies in support of his contention on the fact that he gave a cheque for Sh. 100 to Mr. Neumann which was in respect of the rent which Mr. Neumann had paid to the plaintiff for the month of April. Mr. Neumann's version of the transaction however does not support the defendant's contention. He has denied that he ever agreed to sub-let the room to the defendant and he has explained that the cheque was in refund of the rent which he had already paid and not by way of rent. The fact that the defendant never tendered or paid any rent to Mr. Neumann subsequently shows conclusively that he was not and did not consider himself to be a sub-tenant of Mr. Neumann. It follows from my findings that the defendant is a trespasser in the room in question and must give possession thereof to the plaintiff.

I now pass to the question of damages. Those damages fall under two heads. There is in the first place the actual loss which the plaintiff has sustained by being deprived of the use and occupation of these two rooms. At the time the defendant occupied the room it was let at Sh. 100 p.m. prima facie, therefore Sh. 100 p.m. represents the actual loss sustained by the plaintiff. The defendant, however, contends that the standard rent of the room is either Sh. 25 or Sh. 30 p.m. and that the plaintiff is not entitled to more than that. The defendant's contention sounds ill in the mouth of a trespasser who on his own saying has agreed to pay Sh. 100 p.m. for the room to the plaintiff. In any case while it is true that the plaintiff himself only paid Sh. 93/50 p.m. for the two rooms there is no proof before me of the standard rent of either or both these rooms. In those circumstances I see no good reason to deprive the plaintiff of the rent which he would have received if the Defendant had not wrongfully deprived him of his rooms.

The plaintiff is also entitled to general damages for trespass. In order to assess such damages it is necessary to decide whether there was any sort of justification or excuse for the defendant's conduct in taking possession of plaintiff's room against his will. In other words, was there in fact an agreement of tenancy

between the plaintiff and the defendant which the plaintiff repudiated at the last moment after the defendant had performed his part of the bargain. This is the only point in the case on which I have had some little doubt. The plaintiff is an excitable and stubborn man and was consequently a bad witness. His evidence has been proved wrong on the existence of a written tenancy between himself and Mr. Neumann, although it must be said in fairness to him that he was not certain on this point. Nevertheless, I believe that he told the truth when he denied agreeing letting the room to the defendant. His whole conduct at the time supports his evidence and I accept it generally. The defendant on the other hand is an able and intelligent businessman and he naturally gave his evidence well. He admitted that early in the morning of the 13th April the plaintiff forbade him to take possession of the room in question. This statement appears to be in direct contradiction with the last paragraph of his letter to the Rent Control Board which says that it was after taking possession and on his refusal to pay keymoney that the repudiation of the agreement took place. The evidence of the defendant has also been contradicted and proved incorrect in other respects by that of Mr. Neumann which I have accepted. I have, therefore, come to the conclusion that there was no such agreement as alleged by the defendant. That being so the defendant's conduct was high handed in the extreme and in complete defiance of the law and of plaintiff's rights. It is inexcusable on the part of the person in his position and deserves the strongest censure from the Court. In the circumstances I consider that this is a fit case in which to give punitive damages against the defendant and I fix those damages at Sh. 3,000.

There will, therefore, be an order for possession against the defendant and also an order that the defendant pay to the plaintiff Sh. 3,000 plus Sh. 100 p.m. from 1st May, 1949, until the possession of the room is given to the plaintiff with interests and costs as prayed.