Singh and Another v African Diesel Mart Limited (Civil Appeal No. 89 of 1955) [1956] EACA 25 (1 January 1956)

#### APPELLATE CIVIL

### Before CONNELL, J.

## PAL SINGH AND ANOTHER. Appellants

ν.

# AFRICAN DIESEL MART LIMITED, Respondent

## Civil Appeal No. 89 of 1955

Landlord and Tenant—Increase of Rent (Restriction) Ordinance, 1949—Consent order to grant lease of rebuilt premises—Stipulated rent based on rent restriction legislation—Legislation expired before lease executed—Power of Court to enforce Order.

The respondent (tenant) surrendered possession of certain premises on condition that it was granted a lease of the rebuilt shop. The rent was an agreed one based on the Rent Restriction Ordinance. A consent order in these terms was filed with the Rent Control Board. When the new premises were ready the landlord vacillated, then sought to impose a rent in excess of that argued. The tenant took the matter to the Resident Magistrate's Court where it filed the consent order, and in due course a lease was drawn up and executed by the Court.

The landlord then appealed to the Supreme Court on the grounds that the order was filed on the day that the Ordinance ceased to apply to these premises, and thereafter the magistrate had no power to make any order; while the order was, in any event, in such uncertain terms as to be unenforceable.

The appeal was dismissed.

(*Editorial Note.*—There was a further appeal to E. A. Court of Appeal (1957) E. A. $(C. A.)$ 826.)

Held $(17-8-56)$ .—(1) A consent order stands in the same position as an order of the Court until discharged by the parties, or set aside, and one party cannot resile therefrom, nor complain of its provisions.

(2) The expiration of an Ordinance does not necessarily deprive parties of rights granted under it, nor the Court concerned of its power to enforce.

(3) Tenancies other than statutory ones can in certain circumstances be granted and enforced by a subordinate court.

Cases cited: Kinch v. Walcott and Others, (1929) A. C. 482; Wilding v. Sanderson. (1897) 2 Ch. 534, 544; Ali Bin Khamis v. Salim Bin Khamis Kirobe and Others, (1956) 23 E. A. C. A. 195; Barton v. Fincham, (1921) 2 K. B. 291; Hinde v. Hinde, (1953) 1 A. E. R. 171; Brilliant v. Michaels. (1945) 1 A. E. R. 121; British Movietone News v. London and District Cinemas, (1951) 2 A. E. R. Delmia v. W. Dyer, 52 I. L. R. Cal. 551; S. A. Seshadri Aiyangar v. Narayana Nair, (1950) A. I. R. Mad. 106; Bishop of Bath's Case, (1605) 6 Co. Rep. 34b, 77 E. R. 303; Shantilal Lalji Shah v. Gulzar Begum, (1948) 15 E. A. C. A. 25.

Cited: Fry, Specific Performance of Contracts; Craies, Statute Law; Mulla, Code of Civil Procedure; Hill and Redman, Law of Landlord and Tenant.

$\eta_{\rm tot} \simeq$

$\alpha_{\rm{B}}<\pi$

A. R. Kapila for appellants.

J. J. Patel for respondent.

Reported by: R. H. Lownie Esq., Resident Magistrate, Nairobi.

JUDGMENT.—This is an appeal from an order of Mr. D. Davies, Resident Magistrate, which was delivered on 11th November, 1955, the material portion being: "It is ordered that the respondent be directed to execute a lease in the terms of the decree by 25th November, 1955. Applicant to have liberty to apply." The "decree" referred to is a consent order submitted to the Rent Board on 15th October, 1952. The decree was drawn up and signed by the chairman of the Rent Board on the same day. For the sake of convenience I set out the decree hereunder: $-$

"By CONSENT:

(1) Possession of premises in occupation of E. A. Diesel Mart Limited to be handed over to landlords when vacant possession of the remaining portion of the entire premises on the plot is available to the said landlords.

(2) Landlords to erect the proposed building within six months of the date of vacant possession being obtained.

(3) Landlords to grant the said tenant (respondent) and or its associated concern or concerns in which Mr. B. T. Gathani and his family hold 51 per cent or more of the share capital a lease of the rebuilt shop now in respondent's occupation, for a term of three years at the same rental as at present, subject to all increases in rent as may be from time to time permissible under the Ordinance during the said term, with an option to the tenant of renewal for a further period of two years, at a rent 25 per cent in excess of the rent being paid at the end of the said term of three years. if the rents are not then controlled.

(4) It is expressly understood that while the landlords will construct the building expeditiously they shall not be liable to the tenant for any damages for delay in completion and shall be under no obligation to give the tenant any alternative building.

(5) Formal lease to be signed by the parties at the tenant's expense, the tenant paying all legal expenses and disbursements in connexion therewith.

(6) Each party will bear its own costs.

(Signed) H. R. MEREDITH,

Chairman.

15th October, 1952."

At the end of July, 1953, the tenant (present respondent) vacated the premises; the new building (shop and business premises) was completed by the landlords on or about 15th October, 1954.

On 24th December, 1954, the Board's decree was registered and filed in the Resident Magistrate's Court under section 32 (1) (now section 33 (1)) of the Increase of Rent (Restriction) Ordinance No. 22 of 1949, on 29th December notices purporting to be filed as required by section 4 of the Increase of Rent (Restriction) (Enforcement of Determinations and Orders of the Board and<br>Appeals from the Board's Determinations and Orders to the Supreme Court) Rules of Court 1950, were despatched by respondent and were in fact filed on 30th December, 1954. No objection in argument in this appeal has been taken as to whether these notices were filed within the requisite time and no such objection therefore can be taken at this stage. Ground 20 of the appeal therefore fails.

The formal order of Mr. Davies is dated 24th November, 1955, and it is annexed to the grounds of appeal.

I do not propose to deal seriatim with the 20 grounds of appeal as Mr. Khanna for the appellant has at the outset of his argument conveniently summarized the real points at issue which I think are these: $\longrightarrow$

1. Was the Resident Magistrate at all times after 25th December, 1954. functus officio?

2. Was the decree of the Rent Board dated 15th October, 1952, in a sufficiently certain state to be executed?

3. Was the order of such nature or in such a state as to be capable of $\cdot$ execution?

The appeal depends largely upon the proper construction to be placed on the proviso to section 1 of the Increase of Rent (Restriction) Ordinance, 1949, with reference of course to the admitted facts of the case. The proviso, which came into force on 27th May, 1953, reads as follows: -

"Provided that this Ordinance shall cease to apply to any business premises, wheresoever situate in the Colony, with effect from the 25th day of December, 1954."

I have been addressed by either Mr. Khanna or Mr. Nazareth on various aspects of the legal position of a consent order as such, but I think it might be of assistance with regard to the third issue to set out at the commencement some observations as to that position made by Lord Atkin in Kinch v. Walcott and Others, (1929) A. C. 482 at page 493. Lord Atkin says: "First of all their lordships are clear that in relation to this plea of estoppel it is of no advantage to the appellant that the order in the libel action which is said to raise it was a consent order. For such a purpose an order by consent, not discharged by mutual agreement, and remaining unreduced, is as effective as an order of Court made otherwise than by consent and not discharged on appeal. A party bound by a consent order, as was tersely observed by Byrne, J., in Wilding v. Sanderson, (1897) 2 Ch. 534, 544, must, when once it has been completed, obey it, unless and until he can get it set aside in proceedings duly constituted for the purpose. In other words, the only difference in this respect between an order made by consent and one not so made is that the first stands unless and until it is discharged by mutual agreement or is set aside by another order of the Court; second stands unless and until it is discharged on appeal. And this simple consideration supplies at once an answer to this appeal. The consent order in the libel action has neither been abandoned nor set aside. Accordingly it stands at this moment as an order effective to prevent the appellant from setting up against the two respondent parties to it the charges against them thereby withdrawn. Nor is it any answer for the appellant to say that by his amended reply he has alleged, he asks to be allowed to prove that the consent order was and is a *nullity*. It is, first of all, in no sense true that the order is a nullity. At the best, so far as the appellant is concerned, the order embodies an agreement which possibly may still remain voidable at his instance. But that means that the order stands until it has been effectively set aside. And such an order, were the objection taken to it is of the character here set up by the appellant can only be so set aside in an action or proceeding directed to that special end."

Mr. Khanna did at one period try to argue that the decree of the Rent Board was a "nullity", but it was pointed out that phrase did not occur in the Memorandum of Appeal. Ground 6 comes somewhat near that attempted submission; it sets out that "the learned magistrate wrongly held that anything more than a "statutory tenancy" under the increase of Rent (Restriction) Ordinance, 1949, could have been granted, or a "contractual tenancy" for any term, without being subject to cesser on the expiration of the Ordinance.

Mr. Khanna argued, citing a recent E. A. C. A. case, Ali Bin Khamis v. Salim Bin Khamis Kirobe and Others, (1956) 23 E. A. C. A., 195, that in certain cirumstances a Court order can be disregarded if it oversteps certain limits and that if a Court has overstepped the Court's jurisdiction it cannot be enforced; it

amounts to nothing. I do not quarrel with that argument though it must be remembered that the main reason for the decision in the Bin Khamis case was that "all other proceedings taken in the suit are invalidated by the inherent vice of the order of 25th March, 1952, and should be set aside"; it must be remembered that in the Ali Bin Khamis case proceedings were actually taken to set aside the original order of March, 1952; these proceedings failed before the trial Judge, but it was held on appeal that the order of March, 1952, should and must be set aside. In the instant appeal and indeed ever since the decree of the Rent Board was made no proceedings whatever have been taken by the respondent to have that Decree set aside in accordance with the general principles laid down by Lord Atkin in *Walcott's case*, quoted above. It is true, however, that the following point was argued in the Magistrate's Court: "No power in Board to grant tenancy greater than old tenancy. Under 'old' there was right to say in only so long as R. R. Ordinance lasted." It is also true that in the earliest letter I am able to trace from the appellants in the magistrate's file, the letter dated 24th July, 1954. Mr. B. T. Modi writes: "I am instructed however to confirm that they will give to your clients a lease of the rebuilt premises in terms of the said order of the Board. As regards the time limit, your attention is drawn to paragraphs 2 and 4 of the said order." Paragraphs 2 and 4 however merely relate to the time or extended time given to the landlord to erect the new shop buildings and it is important to observe that at that stage there is no attempt whatever by the appellants to resile from the all important "covenants" (if I may use that expression somewhat loosely) contained in paragraph 3 of the Decree, After further correspondence requesting Mr. B. T. Modi for a draft lease and requesting reinstatement in a portion of the renewed building, Mr. Modi writes on 24th November, 1954: "Under the circumstances my clients would expect rent from your clients on the basis of rents paid by the other tenants of the building. They trust that your clients will agree that this request is reasonable, as your clients are mainly interested in obtaining occupation of<br>the premises and should be ready to pay reasonable rent therefor. I shall accordingly be glad if you will let me have your clients proposals in this behalf so that before the shop is available for occupation, an agreement could be reached as regards the rent payable which would be satisfactory to all concerned."

The respondents by letter of 21st January, 1955, inform the appellants' advocate that they will be likely to take proceedings after Monday 24th without further delay. On 25th January the appellants' advocate tries to reconcile the positions taken up in the letters of 24th July and 24th November, 1954, stating, "Our clients have at no time denied their obligations under the said order or suggested in any way that they are not willing to enter into a contract on the lines agreed." They refer to the paragraph in the order, "Subject to all increases in rent as may be from time to time permissible under the ordinance during the<br>said term." He then states: "If your clients are now prepared to approach the matter more reasonably and agree to the same rent that they would be paying for their original premises today—i.e. either an agreed rent is a rent to be fixed by the Special Resident Magistrate's Court under the Rent (Shops and Hotels) (Temporary Provisions) Ordinance, 1954, the matter could be proceeded with immediately." "You will no doubt impress upon your clients that even were a lease to be drawn up specifying a certain rent, an application could still be made to the said Court for variation of the rent under the new legislation. The increase in the original rent that might thus ensue would clearly be an increase permissible under the ordinance, the words used in the said consent order."

It is unnecessary to refer to the rest of the correspondence except to say that after pressing the appellants to execute the lease "without substantial alterations except any alterations to make the lease conform to the said order of the Board" *(see* letter of 24th March, 1955), the present proceedings in execution were taken by the respondents in the Magistrate's Court.

In *Barton v. Fincham,* (1921) 2 K. B. 291, a tenant and landlord made an agreement in writing -that in consideraition of a payment the tenant should give notice to quit and yield up possession. The landlord made the payment but the tenant changed his mind and refused to give up possession. Banks L. J., at page 296, stated, "In my opinion section *5* (corresponding to the Kenya Ordinance, section 16), is an instance of a case where the legislature has in clear and unmistakable language restricted the jurisdiction of the Court, and where no agreement between parties can give the Court a jurisdiction which the legislature has said it is not -to exercise. This is by no means the on-ly statute in which the legislature has secured the object it had in view by limiting the exercise by the Courts of their full jurisdiction."

The agreement was not filed in Court but the Court I think would not have upheld the agreement even if it had so been filed.

In *Hinde v. Hinde,* (1953) J A. E. R. 171, the headnote states. *inter alia.* "Parties could not by consent give the Court a jurisdiction which it did not otherwise possess; while the Court would recognize a consensual arrangement between the parties, it would not lend its process tQ enforce as an order that which was drawn up in the form of an order, but which in reality was the statement of an agreement in terms which the Court would have no jurisdiction to impose"; the headnote however continues "in the a·bsence of evidence that the order merely embodied or evidenced terms agreed between ,the parties, the order must be treated as having been made under -the powers conferred on the Court by the Statute; to have validity as such, it must -be construed as an order made for joint lives; and therefore the summons must be dismissed."

It is relevant to observe that in both those cases the consent and the order were at the time t1hey were made outside the ambit of jurisdiction of the Courts.

I cite another case a though it was referred to by Mr. Nazareth in another connexion, and that is the case of *. Brilliant v. Michaels,* (1945) l A. E. R. 121, at page 128, Evershed, J. (as he then was), stated, "There is one other matter to which I think perhaps I ought to make some reference since the point is a novel one on which there has been some argument. The rent which was eventually settled in the final of those Teceipts was a ·rent which appears to have been substantially in excess of what is caHed .the standard rent applicable to these premises by virtue of the current Rent Restrictions legislation. It is quite clear that if two parties agree that one is to pay and ,the other is to receive a rent in excess of the so-called standard rent, neither that part of the bargain nor the whole contract is thereby rendered illegal. The fact is that in so far as the rent inserted or agreed upon is in excess of the standard rent the excess is not recoverable at law."

There is, of couTse, by section 12 <>f -the Kenya Ordinance a criminal penalty imposed on a landlord for accepting excess rent and I merely cite the case as an indication that the sanctity of such a contract is recognized by the English Courts even though one might ex,pec-t that such a contract might be considered as against the policy of the Rent Restriction Acts.

In *British Movietone Ne1i*1*s v. London and District Cinemas,* (1951) 2 A. E. R. 617, there was a contract between film distributors and exhibitors on 25th July, 1941, under which the contract was terminaible "by the exhibitors on four weeks' notice at any time during the currency thereof after the first month". In March, 1943, the supply of film was cut down by one-third under a film (control) order: "consequent thereon the parties entered fo,to a supplemental agreement providing, *'inter alia,* (a) the principal agreement shall remain in full force and effect until such time as the said order is cancelled and *thereafter* for any unexpired period stipulated in the principal agreement". The Film (Control) Order of 1943 was made under powers conferred by Defence Regulation 55 which in turn was made under the Emergency Powers (Defence) Act, 1939. On 24th February, 1946. the Act of 1939 expired and was replaced by the Supplies and Services (Transitional Powers) Act, 1945, but the Order of 1943 continued in force under the latter Act. The Film (Control) Order, 1943, was revoked by a Film (Control) (Revocation) Order, which came into force on 1st October, 1950, which was after the judgment of the Appeal Court.

At p. 622 Viscount Simon stated: "But whereas Defence Regulation 55 derived its force originally from the Emergency Powers (Defence) Act, 1939, after February 24th, 1946, its authority rested on the Supplies and Services (Transitional Powers) Act. 1945." The question is whether, in these circumstances, the supplemental agreement, when referring to "the continuance" of the order and to "such times as the said order is cancelled" ought to be construed as referring to a period which ends when the statutory basis on which Defence Regulation 55 rests is thus altered.

This is primarily, at any rate, a question of "construction". In a later passage, Viscount Simon quotes at p. 623, a passage of Hannen J. in Baily v. De Crespigny, (1869) L. R. 4 Q. B. 180 at 186: "To hold a man liable by words, in a sense affixed to them by legislation subsequent to the contract, is to impose on him a contract he never made." At p. 622, Viscount Simon stated: "The parties to the supplemental agreement chose to define the minimum period of its operation by reference to the continuance of the order", and again at p. 623: "This is not a case in which there has been a 'vital change in the law', operating on the circumstances." Viscount Simon dealt thereafter with the doctrine of frustration and it is relevant to quote another passage from his judgment at p. 625: "If, on the other hand, a consideration of the terms of the contract, in the light of the circumstances existing when it was made, shows that they never agreed to be bound in a fundamentally different situation which has now unexpectedly emerged, the contract ceases to bind at that point-not because the Court in its discretion thinks it just and reasonable to qualify the terms of the contract, but because on its true construction it does not apply to that situation. When it is said that in such circumstances the Court reaches a conclusion which is 'just and reasonable'"... "this result is arrived at by putting a just construction on the contract in accordance with an implication from the presumed common intention of the parties." Later "what distinguishes" frustration "cases is that the interpretation involves the consequence that, in view of what has happened, further performance is automatically ended. This is because the frustrating event (such, for example, as war or prolonged delay) must be regarded as introducing a new situation to which no limit can be put". Finally, Viscount Simon states: "There are, of course, many other examples where the Court has to put an interpretation on the agreement made, not with the result that the contract is brought to an end by frustration, but with the result that contract goes on and continues to bind the parties according to its true construction."

It is true "frustration" is not expressly taken as a ground of appeal; but grounds 6 and 7 alleging a "cesser" on the expiry of the Ordinance, bring into play two questions: (a) a question of construction of the lease itself, (b) a question of construction of the proviso (already quoted) to section 1 of the Rent Ordinance.

I have cited the *Movietone case* (supra) for reasons, inter alia, that there seems to me nothing inherently objectionable in parties forming agreement expressly providing that the terms thereof shall last after the expiry of a named Statute or Order, or for that matter giving one party an "option" to continue an agreement for a specified period after the expiry of a named Statute. On this aspect Baily v. De Crespigny (supra), is particularly relevant. Hannen, J., at page 185 states, "The substantial question, therefore, raised on this record is whether the defendant is discharged from his covenant by the subsequent Act of Parliament, which put it out of his power to perform it. We are of opinion that he is so discharged on the principle expressed in the maxim, Lex non cogit ad impossibilia." The subsequent Act of Parliament was the Railway (New Lines) Act, 1862, under which the Railway were empowered to purchase the paddock on which the defendant had covenanted not to build.

There are many relevant observations in that case at page 186, viz.: "It is on this principle that it has been held that an impossibility, arising from an Act of the legislature subsequent to the contract, discharges the contractor from liability." Then follows this passage: "Again, to quote an observation of Maule, J. in Mayor of Berwick v. Oswald, 8 T. R. 57, there is nothing to prevent parties, if they choose by apt words to express an intention so to do, from binding themselves by a contract as to any future state of the law (words underlined by me)... but people in general must always be considered as contracting with reference to the law as existing at the time of the contract. . . And the words showing a contrary intention ought to be pretty clear to rebut that presumption." Applying the observations of Maule, J., to the present Rent Board Decree, particularly to the latter part of the third paragraph in the decree, I can hardly think of a more apt illustration of parties binding themselves as to any future state of the law.

Subject therefore to the first issue which I drafted and to further observation on the effect of the Proviso to S. I. of the Increase of Rent (Restriction) Ordinance, and subject of course to further observations on issue 2, in my judgment the decree of the Rent Board was of such a nature and in such a state that it was capable of execution. On the construction of the "Decree" of the Rent Board, I hold that grounds of appeal 6-10, and 14 fail.

The first issue involves the question of construction of the Proviso. Mr. Khanna did not argue and I think he was correct in not arguing the point that the "agreement for the lease" (I call the decree of the Rent Board an agreement for lease for the sake of present argument) came to an end on 15th October, 1955, at any rate as regards the first period of "three years" postulated in the Decree; for that reason I do not propose to analyse the line of cases adverted to and clearly set out in Fry on Specific Performance of Contracts (6th Edition), paragraphs 918 to 921; I think one has to look at the facts on this appeal with reference to four dates, namely the position of the parties on 15th October, 1952, 27th May, 1953, when the Proviso that the Ordinance "Shall cease to apply to any business premises on 25th December, 1954" was made part of the law; 24th December, 1954, when the Decree was filed in the Magistrate's Court; 25th December, 1954, when the Proviso came into effect. I will merely refer to one small passage in Fry at page 433, "In accordance with this view (the view stated in the previous sentence) Lord Cranworth expressed the opinion that it would require very special circumstances indeed to induce the Court to decree specific performance of a lease after the expiration of the term".

Regarding the effect of the Proviso, the law has been succinctly set out in two recent E. A. C. A. decisions, Bawa Singh Melaram v. Patel and Others, (1956) 23 E. A. C. A. 85, and Inder Singh Gill v. B. E. A. Timber Company, (1956) 23 E. A. C. A. 202. The Rent (Restriction) Ordinance is a temporary statute and at page 87 of Bawa Singh, Briggs, J. A., adopted the passage of Baron Parke in Steavenson v. Oliver, (1841) 8 M. & W. 234 (151 E. R. 1024), "But with respect to the former (i.e. temporary statutes) the extent of the restrictions imposed, and the duration of the provisions, are matters of construction".

I refer also to some passages in the judgment of Lord Goddard, C. J., at page 532 of R. v. Wicks, (1946) 2 A. E. R. 529, "It is always presumed that Parliament knows the state of the law at the time when it is legislating. It must also we think, be presumed that Parliament knows what words are considered apt to effect a particular result".

At page 534 Lord Goddard, C. J., states, "In our opinion, giving the words of the subsection their natural meaning, there is neither doubt nor ambiguity, and the result would appear to be both just and reasonable." I stress the last few words as Mr. Khanna in his argument on the construction of the proviso submitted that if the "decree" were to be executed it would involve a construction of the proviso which would be neither just nor reasonable.

The fifth edition of *Craies* on *Statute Law*, page 377, contains this passage, "As a general rule, and unless it contains some special provision to the contrary after a temporary Act has expired, no proceedings can be taken upon it, and it ceases to have any further effect". If this general rule were to be applied in the instant appeal, or indeed at the time when the magistrate heard the application for enforcement of the decree under section 32 (1) of the Rent (Restriction) Ordinance, then of course the appeal would succeed.

There is however, the all important modification of the general rule adverted to by Lord Abinger, C. B., in *Steavenson v. Oliver (supra)*, "It is by no means a consequence of an Act of Parliament's expiring that rights acquired under it should likewise expire ... (The Act) provides that parties who hold such warrants shall be entitled to practise as apothecaries; and we cannot engraft on the Statute a new qualification, limiting that enactment".

In other words it was held by Lord Abinger that the words in section 4, "That every person who heretofore has held, or who now holds, or hereafter shall hold a commission or warrant as surgeon ... shall be entitled to practice as an apothecary" did not disentitle that apothecary from continuing to practise as an apothecary and suing for his fees (apparently some years later) even though the Statute 'shall continue until the 1st August next' (1826), the headnote states inter alia, "Held that those persons who held warrants prior to the 1st of August, 1826, and who were therefore entitled to practise as apothecaries, were not deprived of that right by the expiration of the Act".

Another passage in Steavenson's case is quoted by Briggs, J. A. Rolfe B., said, "I think that although in one sense this act is not in force, yet it is still permanent as to the rights acquired under it". "In the face of all this", says Briggs, J. A., "it seems impossible to contend that one should lean towards a construction expunging civil rights." Later, "I think on a true construction of the Increase of Rent (Restriction) Ordinance it was never intended to destroy subsisting civil rights in connexion with business premises when they ceased to be controlled. The continuation in force of the Ordinance for other purposes supports me in this view." Later, "Accrued civil rights under it will survive and can be enforced."

The difficulty in the instant case under appeal, is assuming that the respondent has or had an acquired civil right to enforce an agreement for a lease, whether the Magistrate's Court is the proper tribunal to enforce it. Mr. Khanna during argument gave a half-concession; he said, "(It was) an effective right acquired under judgment of the Board; right would not be destroyed by subsequent expiry of Ordinance relating to business premises; right is good but can you take proceedings before magistrate who is defunct? Right can't be lost; is Magistrate's Court the proper tribunal to go before to enforce that right?" Any proceeding should be commenced etc., while the temporary Ordinance is in

existence; applying that to execution proceedings, they were not commenced. prosecuted and concluded before the expiry of the Ordinance regarding business premises".

In Inder Singh Gill (supra), there are some distinguishing features. At page 204, Briggs, J. A., stated, "The order of the Board was not a consent order and the appellant only submitted to the imposition of a condition providing for a new tenancy. When the order was made, Ordinance 8 of 1953, which introduced into section 1 of the principal Ordinance the proviso under which business premises were to be decontrolled, had already been passed and was in force."

In the instant appeal we have a consent order and the proviso did not become law until seven months after the decree.

In *Inder Singh* the Board's decree was pretty vague; it was "vacant possession with the condition that the respondent will be taken back on completion in accordance with the offer made; and at a rent to be assessed by the Board". In Inder Singh also possession of the new building could not in any event be granted until about February, 1955; in the instant appeal the tenant could have been given possession in October, 1954. In Inder Singh, therefore, one can well understand the reasoning of Briggs, J. A., "On that footing the Ordinance would have ceased to apply to the new premises just at the time they became ready for occupation". It cannot be said in the instant appeal that the Ordinance ceased to apply in mid-October, 1954; if the appellant had been a "man of honour" or let us say of "business rectitude" he could have let the respondent into possession then and there; the respondent at any rate up till 25th December, 1954, had a right to be granted a lease and to be admitted into the new premises in the same manner as the tenants had a similar right in A. D. Qureshi v. Ngara Provision Store and Others, (1956) 23 E. A. C. A. 1.

Has that right now been extinguished by the proviso? I do not think it has. If not extinguished by the proviso was the right capable of enforcement by the magistrate in 1955? My answer is yes it was. I think the magistrate, as an executing Court had power under section 98 of the Civil Procedure Ordinance to direct the execution of the conveyance which had already been ordered by the Board's decree; the material paragraph in the decree is, "Landlords to grant the said tenants (respondents) ... a lease of the rebuilt shop ... for a term, etc."

Mr. Nazareth quotes a passage in Mulla's Code of Civil Procedure (12th edition), page 166, "A Court executing a decree cannot go behind the decree. It must take the decree as it stands". One comes back again to Lord Atkins's observations in *Kinch v. Walcott and Others (supra)*, namely that if the landlord objected to the Board's decree, he should have taken proceedings to have it set aside.

In Inder Singh the learned president made the following observations at page 208: "In the one case" (i.e. on the supposition that the tenant had obtained an award of compensation but had not enforced it before 25th December 1954), "there would be accrued civil right which on the authority of Bawa Singh *Melaram v. Patel (supra)* could be enforced; in the present case there is nothing but a claim". By way of reinforcement of this observation I refer to the observation of Briggs, J. A., in *Bawa Singh*, "I think on a true construction of the Rent (Restriction) Ordinance, it was never intended to destroy subsisting civil rights in connexion with business premises which ceased to be controlled. The continuation in force of the Ordinance for other purposes supports me in this view". Later, "In either even, accrued civil rights under it will survive and *can be enforced*".

In arriving at a conclusion I have read all the cases referred to by Mr. Khanna, in particular, Spencer v. Hooton, (1920) 37 T. L. R. 280, and R. v. Ellis, (1921) 125 L. T. R. 397. I think there is a distinction to be found in those cases compared with the instant appeal; the distinction is this. Suppose the proviso to S. I. had been drafted in this manner, "Provided that proceedings under this Ordinance shall cease to apply to any business premises", in that event I should probably be compelled to conclude that "any proceedings" whether commenced before 25th December, 1954, or continued afterwards, would *ipso facto* come to an end. At page 282 of Spencer (supra), Roche, J., says, "Section 5 of the Act of 1918 deals with legal proceedings"—section 5 as re-enacted or continued would therefore read as follows, "Proceedings for offences under this act shall until September 30th, be taken". Then, "I feel myself unable to give any other meaning to the language used than a meaning which involves the result that the jurisdiction of the tribunals and of this appeal Court was continued until September 30th, and no longer".

I observe also that Roche, J., higher up on the same page stated, "Some provisions—namely those of certain subsections of section2—would seem naturally to be intended to operate as long as might be necessary and without the limitation of a fixed time". Section 2, I relate, refers to powers given to the Minister of Labour either to settle differences himself or to refer disputes to an interim Court for arbitration or to refer disputes for settlement between employers and employed. There is some similar reasoning by Darling, J., at page 400 in $R$ . v. Ellis (supra), "The Industrial Courts Act 1919, constitutes the offence by the Schedule to the Act (see page 322 English Statutes 1919), and in the same schedule it enacts that legal proceedings come within the same limit as that prescribed for the offence that is they are all to be completed by 30th September, 1920". Again Avory, J., at page 401 says, "In this case one finds a definite expression of the legislature in the Act, not only the continuation of the operation of the section as to the offence but an express enactment that the legal proceedings in respect of that offence are to continue in operation until 30th September, 1920." "I cannot entertain any doubt that that must mean that they shall continue in operation until that date and no longer."

The relevant sections of the temporary acts are set out verbatim at page 398 of R. v. Ellis (supra). My only observation is that there could hardly be a clearer case where "legal proceedings" were properly construed as coming to an end on a certain date, viz 30th September.

Mr. Khanna cited a Calcutta case, Kundalmal Dalmia v. W. Dyer, I. L. R. 52 Cal. 551; in that case Greaves, J., held that the original act ceased to operate on 31st March, 1924, as regards premises of 250 rupees a month or above. Greaves, J., however, did go into the question as to whether there was evidence that the rent of the premises exceeded 250 rupees a month. He did not refuse to hear the Rule for Revision.

In a Madras case referred to by Mr. Nazareth, S. A. Seshadri Aryangar v. Naryana Nair, (1950) A. I. R. (Madras) 106, the Court upheld a Revision Petition which was presented to Government before the expiry of a Rent Act, but allowed by Government after the expiry. The relevant passage is at page 108, "Where a right has become vested in a person and the authority through whom that right can be enforced continues to exist the inference would be justified that there was no intention to deprive that person of that right". In the instant appeal the magistrate still exists under section 32 (1) (now section 33) though Mr. Khanna would seek to argue that he does not exist for the enforcement of the Board's decrees so far as they relate to business premises.

One can visualize a number of cases where the magistrate no longer has jurisdiction. I do not, however, see why the magistrate should not still exist to enforce vested and acquired rights of the nature which the present respondent had and still has in the instant appeal. I think he still has such jurisdiction.

There is still another point which arises under the first issue and that is the principle adverted to by Nihill, C. J., in the Qureshi case (supra) at page 3. "It is well established that the Courts will not usually allow a party to both approbate and reprobate"; the appellant landlord has gone into possession under the consent decree; how then can he be allowed to attack the decree whilst he takes the benefit of it? Contrary to Mr. Khanna's argument, I think that the cases cited by Nihill, C. J., are relevant to the above principle. Nor is Mr. Khanna's argument correct that the landlord had no option but to consent to a lease; the words in 16 (1) $(k)$ are, "The Court may include in any ejectment order" various other orders and other reasonable conditions. The landlord might have agreed to provide alternative accommodation; supposing he had so agreed; is it to be argued that the tenant would be deprived of a remedy after 25th December, 1954, though it is possible to argue that this remedy might have to lie in an action for damages? I answer the first issue in favour of the respondent: in so doing I decide grounds 1, 2, 3, 4, 5, 11 (i)-(v) and 12 of the Memorandum of Appeal against the appellant.

I come finally to the second issue; this embraces paragraph 11 (excluding the subparagraphs) of the Memorandum of Appeal, and grounds 15-19 of the grounds of appeal. Now as to these grounds I think: $-$

(1) The premises are sufficiently described in the decree as to enable them to be identified; see Halsbury, Vol. 20 (Hailsham edn.), page 46 and note (e), "it (the agreement) is enforceable where they (premises) are sufficiently ascertained, but the boundaries are left for future determination"; in the instrument of lease attached to the magistrate's file the rebuilt shop is described as including "the cornered shop including the show case on the ground floor".

It is to be noted that the grounds of appeal do not expressly raise this particular point unless it can be "spelt" out from ground 18.

(2) Time of commencement of term, duration of term, ascertainment of $rent: -$

I think all these are capable of ascertainment with precision—see again Halsbury, Vol. 20 (Hailsham edn.), page 46.

- (a) we know when the term was to commence, viz. from 15th October, 1954; - (b) we know how long the lease was to last, viz. three years with a further two-year option, - (c) the rent is easily ascertainable by reference to the Ordinance. $(c)$

See also on these points Bishop of Bath's case, (1605) 6. Co. Rep. 34b; 77 E. R. 303, "In construction of law on the commencement of leases, the construction shall be the strongest against the lessor, and most beneficially for the lessee".

See also Hill and Redman's Law of Landlord and Tenant (12th edition), page 278, "The rent must be certain, or must be so stated that it can afterwards be ascertained with certainty'. At 333, "The mere fact of rent being fluctuating does not make it uncertain.'

As to ground 13 "necessity to tender", Mr. Nazareth quotes Shantilal Lalji Shah v. Gulzar Begum, (1948) 15 E. A. C. A. 25; generally speaking a purchaser must tender a conveyance to the vendor for execution; but there may be cases where a vendor, expressly or by conduct impliedly, waives that formality. I think in the instant case the appellants did waive that formality and I so find.

I decide grounds 11 (excluding subparagraphs), 13, 15-19 against the appellant.

In the result the appeal is dismissed with costs.