Pathak v Trustees of Tayebi Club (Civil Cas&No. 62 of 1952 (Mombasa)) [1952] EACA 284 (1 January 1952)

# ORIGINAL CIVIL

Before Connell, J.

### D. G. PATHAK, Plaintiff

ν.

## THE TRUSTEES OF TAYEBI CLUB, Defendants

#### Civil Case No. 62 of 1952 (Mombasa)

Increase of Rent Restriction Ordinance-Section 16 (1) (i), landlord proceeding against occupier.

The monthly tenant of certain premises occupied them until 1947 and then went to India where she probably died in 1948.

One Takersi occupied the premises after the tenant disappeared but the Rent Board held that there was no evidence whether he occupied as sub-tenant caretaker or licensee. In their second order the Rent Board rejected the appellant who went into the premises in 1948.

On appeal it was argued that as no representative of the tenant was brought on the record no order could be made by the Rent Board against the occupier vide the proviso to section 16 $(1)$ (i) of the amended Ordinance.

Held (1-9-52).-(1) Following Civil Appeal No. 758/51, before the Board can act against the occupier it must be satisfied after bringing the original tenant or his representative on record that the original contractual tenancy was properly terminated either by notice<br>to quit or by cesser of the lease by the lessee or forfeiture of the lease followed by entry of the landlord, or in a proper case re-entry without forfeiture if tenant is dead and premises are left vacant by death or abandonment.

(2) The Court will not on appeal join the tenant as a party because that was the question which the Rent Board had to go into.

Appeal allowed.

Cases cited: Dalip Singh v. Anderji Odhavji Nathwani 25 (1) K. L. R. 81; Summers v. Donohue (1945) K. B. 376; Pain v. Cobb & Others, 47 T. L. R. 596; Tara Singh & Another v. Harnam Singh (1944) 11 E. A. C. A. 24.

Kapila for appellant.

#### Hassan for respondent.

JUDGMENT.—In this appeal the facts are somewhat curious. One, Mani ben Kanji, an Indian woman, was a monthly tenant for some 14 years of the premises in question, the landlords being the respondents; she occupied the premises till sometime in 1947 and left for India: since then she disappears almost altogether from the picture and, according to admissions by both counsel, she died; according to Mr. Kapila, for the appellant, she probably died in 1948.

After Mani ben Kanji's disappearance one, Takersi Kalidas, got into occupation of the premises and according to two separate findings by the Rent Board on 6th May, 1950, and on 9th January, 1952, when the matter was re-tried before a new Board, there was no evidence whether Takersi occupied the premises as sub-tenant, caretaker or licensee. In their second order the Rent Board ejected the appellant, D. G. Pathak, and from that order the present appeal has been brought. The appellant. Pathak, went into the premises in 1948.

The first argument by Mr. Kapila, for the appellant, is that as no representative of Mani ben was brought on record no order could be made by the Rent Board against the present occupier, Pathak; Mr. Kapila founds this argument partly on general practice and partly on the wording of what is termed "the proviso" of section 16 (1) (i), Increase of Rent Ordinance, 1949, as amended. The proviso is to the effect that a landlord "who has obtained or is entitled to obtain an ejectment order" on the grounds specified by (i) may obtain a similar order against the occupier or may treat the occupier as his tenant. The "grounds" relied on in the instant case refer to a sub-tenancy or assignment by the original tenant (i.e. Mani ben) of the whole premises.

If one took what I may call a "first sight" view of the section one might be tempted perhaps by reason of the words "or is entitled to obtain" to say that a landlord could proceed against the tenant or occupier at his election. As against that view, however, it can be urged that the words "is entitled to obtain" an ejectment order presupposes the words "legally entitled", that is to say entitled by due process of law after making the tenant or his legal representative a party. For how can one become entitled to an ejectment order unless someone or their representative is on record to eject? Quite apart, however, from my own view that the last is the correct view I think that view is to some extent reinforced by authority and I need only quote a passage from my brother De Lestang's judgment in 25 (1) K. L. R. 81 where the learned judge says "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 the tenant".

The above passage, it is true, has reference to the "proviso" (so-called) before its amendment in 1951, the new words being "has obtained or is entitled to obtain"; the learned Chairman, Sir Ribton Meredith, construes the latter words as meaning "if the landlord has shown he is entitled to an order against the tenant and though he has not brought the tenant upon the record". From my own previous reasoning, as well as on the passage quoted, which I think is helpful, I regret I cannot agree with the learned Chairman's construction of the proviso. There is an additional reason also in my view why I cannot agree with this construction and that is this: to my mind the Rent Ordinance was primarily intended to give special powers to the Rent Boards to exercise jurisdiction over "tenants" and those who purport to derive title from tenants, unless they happen to be "protected" by the Ordinance. The 1949 Ordinance extends the class of persons over which the Board has jurisdiction so as to include "occupiers" under the "proviso" (so-called) to section 16 (1) (i). Before that amendment the jurisdiction over such classes of persons would have been that of the Resident Magistrate's Court or the Supreme Court (see the decision of Tara Singh & Jawala Singh v. Harnam Singh (1944) E. A. C. A., page 24, where the E. A. C. A. made an ejectment order against the second appellant who was residing in the premises "by the grace of" the first appellant). Obviously therefore to my mind the proviso must be construed strictly, the essential scheme of the section being to make sure that the tenant has either broken a condition under section 16 (1) (i), whereupon the applicant-landlord can elect to have an order against the occupier or even elect to treat the occupier as his tenant; or else the landlord can (under the well-recognized principle of Skinner v. Geary (1931, 2 K. B. 546) and *Harnam Singh v. Tara Singh* prove that the contractual tenant has, after due notice to quit followed or preceded by death or abandonment or walking out of the tenancy, ceased to be entitled to the protection of the Ordinance; in these eventualities the Board can make an ejectment order against "the occupier".

Mr. Hassan has strenuously argued that the class of persons against whom an ejectment order can be made is extended by section 5 (1) (f) (i) and (ii), the words "any person" or "mesne profits" presuppose that an order can be made against a trespasser. I think, however, that the words of this class, wide though they appear to be, must be restricted to come within (as Mr. Kapila argues) the four corners of section 16; the very commencement of section 16 (1) "No order for recovery of possession shall be made" in my view limit and restrict the class of persons against whom orders of ejectment may be made to "occupiers" with the proviso of section 16 (1) (i). It may well be that the words in section 5 (1) (f) were inserted to cover the anomalous group of occupiers whose derivative title is doubtful but in whose case it cannot be found as a fact that they are trespassers; persons in other words like the present appellant, Pathak, who have set up that they are in lawful occupation but who for various reasons the Board may find are not "protected". The intention may also be (as in a case like the present) to cover cases where the applicant-landlord has given some appellation to the "occupiers" referring to them as "sub-tenants" or assignees when it may turn out they are not sub-tenants but have that rather vague status of "occupiers". In such cases it would, of course, be doubtful whether the Board can order rent and it would be perfectly lawful for them to order "mesne profits" in the nature of rent. At all events I do not think the powers of section 5 (1) $(f)$ ever intended that the Rent Board should have jurisdiction over clear and obvious trespassers in the absence of express words to that effect.

To my mind therefore before the Board can act against occupiers it must be satisfied after bringing the original tenant or his representative on record that the original contractual tenancy was properly terminated either by notice to quit or by cesser of the lease by the lessee or forfeiture of the lease followed by entry of the landlord, or in a proper case re-entry without forfeiture if the tenant is dead and the premises are left vacant by death or abandonment.

Mr. Hassan, however, has raised a further argument, that the contractual tenancy was duly terminated and that as the woman Mani ben did not remain over as a statutory tenant the landlord had no need to join her as a party to the proceedings before the Rent Board on the authority of such cases as Summers v. Donohue (1945) K. B. 376, and Pain v. Cobb & Others (47 T. L. R. 596). Those cases I think, however, merely decided that no tenancy statutory or otherwise passes to the widow of a deceased tenant in occupation after the latter's death and that persons who purport to claim under the original tenant's widow can be ejected. There is no need in England to bring anyone on record in those cases on behalf of the original deceased tenant. It should be noted also that all the English Rent Acts are concerned with is whether such occupiers can claim any protection under the Ordinance; if they cannot the County Courts can eject them whatever their status; there is no such proviso as that under section 16 (1) (i).

As I have already stated it is my considered opinion that Mani ben should have been joined as a party in the present proceedings under the Rent Board. As she is dead then all that was required to be done was to apply for the appointment of an administrator pendente lite under section 38, Probate Administration Act, and join him as a party. Mr. Hassan has invited this Court to do so. I think the application is too late for the simple reason that this tribunal cannot at this stage go into the very question which the Rent Board was bound to go into, viz. whether the landlord "has obtained or is entitled to obtain an ejectment order" against the original tenant under section 16 (1) (i). That question can only be decided by bringing the original tenant or his representative on record.

I would like to add that I have come to the above conclusion with very considerable reluctance as in my view the words "or is entitled to obtain" are<br>not as clear as they might be; I should prefer myself to see after the words "or is entitled to obtain" some words such as these: "after joining the original tenant or, if deceased, his representative-in-law". That is in actual fact the meaning which I attach to the phrase. $\mathcal{L} = \mathcal{L} \cup \mathcal{L}$

For the above reasons the appeal must succeed with costs to the appellant; there will be liberty to the respondents, if they think fit, to institute fresh proceedings before the Rent Board.