Vyas v Souza (Civil Appeal No. 7 of 1954) [1954] EACA 120 (1 January 1954)

## APPELLATE CIVIL

Before CRAM, Ag. J.

B. G. VYAS, Appellant

ν.

A. B. DE SOUZA, Respondent

## Civil Appeal No. 7 of 1954

Increase of Rent (Restriction) Ordinance, 1949—Section 34 (3)—Rules of Court, rule 5 (1)—Summons for stay of execution—Section 16 (5)—Order postponing possession—Rule 5 (1)—Whether stay of execution for purpose of appeal— $\frac{1}{2}$ Rule 5 (2)—Refusal of Board to order stay—Whether summons appropriate— Civil Procedure (Revised) Rules, Order 47, rule 4-Rules of Court, rule 12-Civil Procedure (Revised) Rules, 1948, Order 41, rule 4—Order 50, rule 1— Whether summons appropriate.

A landlord brought proceedings before the Central Rent Control Board for recovery of possession. On 2nd March, 1954, the Board ordered possession and further: "The decree for possession at the end of this month." On 23rd March, 1954, the tenant applied to the Board for a stay of execution for the purpose of filing an appeal. The Board refused the application. On 30th March, 1954, the tenant applied to the Supreme Court, by summons in chambers, for extension of a stay of execution alleged to have been ordered by the Board on 2nd March, 1954. At the hearing the landlord maintained that the application was misconceived as the Board had made no order for stay for the purpose of filing an appeal. The tenant submitted that the application came within the purview of either rule 5 (1) or rule 5 (2) of the Rules of Court made under the Ordinance.

Held $(31-3-54)$ .—(1) The order of the Board amounted to a postponement of possession as empowered by section 16 (5) of the Increase of Rent (Restriction) Ordinance, 1949, and not to an order for a stay for the purpose of filing an appeal, as provided by rule 5 (1) of the Rules of Court made under section 34 (3) of the Ordinance.

(2) No successful application had been made to the Board for a stay of execution for the purpose of filing an appeal and, without such application and subsequent order<br>for stay, the summons in terms of Order (5) (1) of the Rules of Court for extension of the stay was misconceived.

(3) The summons not praying for a reversal of the Board's refusal to grant a stay of execution, was inappropriate for the remedy envisaged by rule 5 (2) of the Rules of Court.

(4) That rule 12 of the Rules of Court did not conflict with, but was complementary, to Order 47, rule 4 of the Civil Procedure (Revised) Rules.

(5) That rule 5 of the Rules of Court did not conflict with but supplemented the procedure laid down for stay of execution on appeal by Order 41, rule 4 of the Civil<br>Procedure (Revised) Rules, 1948, in that the latter provided only for an application for stay after filing an appeal, whereas the former permitted application for stay for the purpose of filing an appeal.

(6) That any application in pursuance of the procedure laid down by Order 41, rule 4, must, in terms of Order 50, rule 1, be by motion and the application by summons could not therefore invoke the rule.

(7) In any event, Order 41, rule 4 mandatorily required application in the first instance to the court appealed from and the summons not setting forth that it proceeded upon a refusal of the Board to grant a stay, was inappropriate.

(8) The summons, from whatever aspect it was regarded, was incompetent and<br>was dismissed. The applicant having brought the respondent into Court by a procedure plainly misconceived on facts within his knowledge, the costs would be the respondent's in any event and be taxed and paid forthwith.

## A. R. Kapila for the applicant (appellant-tenant).

## D. N. Khanna for the respondent (landlord-respondent).

RULING.—This is an application by summons in chambers for stay of execution in accordance with the provisions, it is submitted, of rule 5 of the Rules of Court made in exercise of the powers conferred upon the Supreme Court by subsection (3) of section 34 of the Increase of Rent (Restriction) Ordinance, 1949.

The landlord, respondent to this summons, instituted proceedings before the Central Rent Control Board for recovery of possession and, after a hearing on the merits, the Board ordered recovery. In terms of section 16 (5) of the Ordinance, as it had power to do after making a final order, the Board ordered, "the decree for possession at the end of this month" from which I interpret that it postponed the date of possession until that time.

It is now argued by the tenant that this is equivalent to an order by the Board following upon an application for a stay of execution for the purpose of filing an appeal and amounts to a stay of execution as apprehended by rule 5 (1). With this submission, I am wholly unable to agree, it being, in my respectful view, a subtlety without merit, into which the applicant was forced, by reason of his discovery at the hearing that he had not followed the procedure properly applicable to his plea. I have carefully read the record of the proceedings before the Board and there is not a word contained therein to suggest that any application was made to the Board for stay for the purpose of filing an appeal before the Board arrived at its decision. Before the Board the tenant appeared in person, unrepresented and made no application, as is necessary to support this application.

The decision of the Board was made upon 2nd March, 1954, and, on 23rd March, 1954, the Board considered an application from the tenant's advocates for stay for the purpose of filing an appeal. The Board dismissed this application. As the advocate now appearing in this application made the application to the Board, he is inevitably aware of the refusal of the Board to order stay as comprehended by rule 5.

While this is not an Academy of Law, it seems plain that the procedure open to the tenant after the Board refused his application for stay was to apply to this Court as provided by rule $5(2)$ for an order to set aside or vary the order of the Board. With a view to placing the most favourable construction upon the tenant's application, I have scrutinized the same, but it is beyond all doubt an application in terms of rule 5 (1) for an extension of an alleged stay of execution by the Board pending decision of the appeal, now filed, on the assumption, which I have held to be without merit, that the Board made an order for stay for the purpose of filing an appeal.

Any summons proceeding under rule $5(1)$ must be dismissed because a condition precedent was not fulfilled, that being the preceding order of stay of the Board. Any summons proceeding under rule $5(2)$ must also be dismissed because it is inappropriate and does not ask for a setting aside of the order of the Board refusing stay.

There remains to be considered whether the tenant may have recourse on his present application to the procedure laid down by any other rule.

In pursuance of this, I turn first to Order 47, rule 4 of the Civil Procedure (Revised) Rules, 1948, which rules that any special rules of procedure which may have been made by the Supreme Court, shall, where they conflict with these Rules, prevail and be deemed to govern the procedure in the matter therein mentioned. From this I deduce that the Rules of Court in rent restriction matters are to be deemed to prevail over the Civil Procedure Rules.

Next, I refer to the Rules of Court, rule 12, which rules that Order 41 of the Civil Procedure (Revised) Rules, 1948, in so far as it is not inconsistent with the provisions of these Rules, shall apply to appeals under the Increase of Rent (Restriction) Ordinance, 1949.

In my view, these two rules, last mentioned, are in accord and are complementary.

Turning now to Order 41, rule 4, which deals with stay in the case of appeal and which is applied, in so far as not inconsistent with rule 5 of the Rules of Court, to stay by rule 12 of the Rules of Court, it is at once to be observed that no appeal is of itself to operate as a stay of execution except in so far as the court appealed from may order, but such a court may order or refuse stay on sufficient cause being shown and whether such stay has been granted or refused by the court appealed from, the court to which the appeal is preferred may on application to it to make such order as seems just, but application shall in every case be made in the first instance to the court from whose decree or order the appeal is taken.

But all such applications in terms of Order 50, rule 1, must be by motion in court and not by summons in chambers. Apart from any other reason, therefore. this summons cannot be regarded as a proper procedure entitling the applicant to a hearing under Order 41, rule 4.

In any event, the summons is inappropriate to an application under Order 41, rule 4; for that envisages that an application be first made to the court after an appeal has been filed and, on the refusal of stay, then and then only, may the appellate court receive an application setting forth that there has been a refusal and asking for an order according to justice.

It seems plain that rule 5 of the Rules of Court was made to provide for the gap between the decision of the Board giving possession and the time when, after an appeal is filed, the person against whom possession is ordered may apply under Order 41, rule 4, to the Board for stay. During that hiatus execution might well be swift, and the purpose of the rule seems clear. It does not so much conflict with the Civil Procedure Rules as supplement the same.

The summons is dismissed with costs to the respondent in any event.