Mohamedkhan v Bux (Civil Appeal No. 26 of 1942) [1943] EACA 77 (1 January 1943)

### း၃႙ဲ

# **APPELLATE CIVIL**

#### BEFORE HAYDEN, J.

### SARDARKHAN MOHAMEDKHAN, Appellant (Original Defendant)

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## MERAJ DIN AHAMED BUX, Respondent (Original Plaintiff)

Civil Appeal No. 26 of 1942

Emergency Legislation-Landlord and Tenant-Increase of Rent-Notice of Increase-Validity-Insufficient Notice-Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, 1940, section 6, sub-sections 1 and 2. The facts of the case are sufficiently set out in the judgment.

*Held* (1-11-43).—That a notice of intention to increase rent which does not give the requisite<br>four weeks' notice prescribed by sub-section 2 of section 6 of the Ordinance is not a valid notice within the meaning of the section. Appeal allowed.

Atkinson for appellant.

A. B. Patel for respondent.

JUDGMENT.—This is an appeal from a decision of the learned Acting Resident Magistrate, Mombasa, in a case arising under the Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, 1940 (No. 12 of 1940). The plaintiff (respondent), the landlord, gave the defendant (appellant), the tenant, a notice to increase the rent (Exhibit 2). The notice was dated the 14th October, 1941, and claimed to increase the rent as from the 1st November, 1941. The defendant contested the validity of the notice to increase the rent on the ground that four weeks' notice prescribed by sub-section 2 of section 6 of the Ordinance had not been given. The material portion of that sub-section reads: "Notwithstanding any agreement to the contrary, where the rent of any dwelling-house is increased. no such increase shall be due or recoverable until or in respect of any period prior to the expiry of four weeks, or, where such increase is on account of an increase in rates, one clear week, after the landlord has served upon the tenant a valid notice in writing of his intention to increase the rent". The learned Magistrate ruled against this submission. The material portion of his decision or ruling reads: "The reason being that there is no statutory form of notice of increase in rent as there was under section 3 (2) of the 1920 Act. I think the case of Hill v. Hasler (1921) 3 K. B. D. 643 at 652 ... is sufficient authority for my Ruling".

The only point for decision in this appeal is whether Exhibit 2 was a valid notice of intention to increase the rent.

Sub-section 2 of section 3 of the Increase of Rent and of Mortgage Interest (Restrictions) Act, 1920, is for all material purposes identical with sub-section 2 of section 6 of our Ordinance save that after the words "a valid notice in writing of his intention to increase the rent" there are the following words which have been omitted from the Ordinance: "which notice shall be in the form contained in the First Schedule to this Act, or in a form substantially to the same effect".

In Hill $v$ . Hasler (supra), the notice specified a time for the beginning of the increase of rent considerably more than four clear weeks after service of the notice of increase and it was held that that fact did not invalidate the notice.

In that case Atkin, J. (as he then was), in that part of his Judgment dealing with sub-sections 1 and 2 of section 3 of the English Act, which correspond with subsections 1 and 2 of section 6 of our Ordinance, stated at p. $655$ : "It is to be observed in the first place that neither sub-section 1 nor sub-section 2 purports to deal with a period during which the notice of increase is to be given. Each of these sub-sections purports to deal only with the period in respect of which the permitted increase of rent can be charged". At p. 656 that learned Judge said: To my mind the Act ... fixes the length of the notice to be given in every case". At p. 657 he stated: "In the particular instance in question the plaintiff gave a notice in respect of both rates and rent which was to date from a day more than twenty-eight days from the date of the notice, and it is said for some reason or other that invalidates the notice, even though the notice being a longer notice than is required is obviously in favour of the tenant and not of the landlord. It seems to me to be impossible to say that that limitation of time invalidates the notice. The notice is to be in the form contained in the schedule or in a form substantially to the same effect, and as this notice has no legal effect varying in any material respect the statutory notice, it appears to me to be in a form substantially to the same effect as that notice".

From this it would appear that subject to four weeks being given in the notice to increase rent it is immaterial when the increase is to take place provided that it is not to take place within the four weeks. That is quite different to holding that where a notice is given claiming an increase of rent after fifteen or sixteen days from the date of the notice, as in the present case, that such a notice would be a valid notice.

There is, however, the case of *Steel and another v. Mahoney* (1917-18) 34 T. L. R. 327 which decided, among other things, that where a shorter notice was given than the statutory four weeks that did not invalidate the notice. But that decision turned on the construction of section 1 (1) proviso (vi) of the 1915 Act, which reads: "Wherever an increase of rent is by this Act permitted, no such increase shall be due or recoverable until the expiry of four clear weeks after the landlord has served upon the tenant a notice in writing of his intention to increase the rent, accompanied"—by certain particulars which are not material for the purpose of this appeal. Avory, J., in his judgment dealing with this point, in which Sherman-J., concurred, stated at p. 328: "It was also said that the notice did not comply with the four weeks' requirement. . . . But the actual claim was not made until after the four weeks had expired. The claim was not made until August, 1917. So the tenant had not been damnified in any way by any such mistakes of form as existed in the notice of January 14th, 1916. As the tenant had not been damnified, the Court ought not to give effect to objections to the form of the notice". I think the present case is distinguishable from Steel v. Mahoney in that here the increase in rent was claimed from the 1st November, 1941, vide paragraph 6 of the amended plaint, although at the hearing the plaintiff's advocate admitted that he could not recover any increase of rent claimed in respect of the four weeks from the date of the notice, and furthermore the cited provision of the 1915 Act differs, I consider, materially from subsection 2 of section 6 of our Ordinance. In this connexion I would refer to the case of Penfold and Another v. Newman (1922) 1 K. B. D. 645 cited by Mr. Atkinson. In that case the notice of intention to increase the rent stated that the increase under section 2 sub-section 1 of the 1920 Act was 15 per cent of the net rent, when in the circumstances it could only be increased under that clause by 5 per cent of the net rent. The notice was held to be invalid. Salter, J., in contrasting the 1915 Act with the 1920 Act said at p. 654: "That provision (the relevant clause in the later Act) increases the stringency of the legislation in two respects, first, by requiring that the notice shall be a 'valid notice', and, secondly, by providing a statutory form of notice and requiring that the notice shall be in

accordance with that form. As to the first of these requirements, it is to be observed that the word 'valid' means more than correct in form. It means correct not only in form but also in substance. If it had only been intended that the notice should be correct in form there would have been no reason why the present Act should not have contained the same provision as the earlier Act contained. There must have been some reason for the insertion of the term 'valid' in the amending Act. I think the term was inserted because it was intended that the notice should be correct in substance as well as in form, and should accurately state all material facts, including the amount of the increase of rent which the landlord has a legal right to claim". At p. 655 the learned Judge stated: "In my opinion a notice of increase of rent is not a valid notice under the Act. unless the increase which it states is an increase which the landlord has a legal right to claim". It is true that the corresponding provision in Ordinance No. 12 of 1940 does not, as stated, prescribe that the notice shall be in a certain form, but it does say that the notice shall be a "valid" notice. In Peizer $v$ . Federman (1921-1922) 38 T. L. R. 54 it was held that a notice of intention to increase rent served under the 1920 Act must state correctly the dates from which the increases are payable. The form of notice prescribed under the first schedule to the 1920 Act provides for the insertion of the date from which the increased rent is to be claimed "being four clear weeks from the date of this notice". Notwithstanding the fact that sub-section 2 of section 6 of our Ordnance does not prescribe the form of the notice I am clearly of the opinion that Exhibit 2 was not a valid notice under the Ordinance, in that it claimed an increase of rent over a period during which the landlord had no legal right to make such a claim and consider that the defect in the notice not only related to form but also to substance.

The appeal will accordingly be allowed and the decree varied by substituting Sh. 160, being four months' rent at Sh. 40 per month from the 1st October, 1941, to 31st January, 1942, in lieu of Sh. 199. The plaintiff (respondent) is to have Subordinate Court costs on Sh. 160. The appellant is to have 'the costs of this appeal.