Harji v. Harji Misc. App. 17-d-68; 22/1/71; Hamlyn J.

 

Harji  v. Harji Misc. App. 17-d-68; 22/1/71; Hamlyn J.

The respondent/landlord filed proceedings for recovery of his premises having determined the tenancy by service pf Notice to quit on the appellant/tenant. Appoint was raised that the premises were “mixed” and the matter was referred to the Rent Tribunal. The Tribunal held that the premises were “mixed” and that the tenant was protected. On appeal, the High Curt held that although the premises were mixed, they were by were operation of the Township Rules only commercial premises. The matter was remitted to the District Court which gave judgment for the landlord on the ground that the tenancy was illegal. The tenant appealed on the grounds that: (a) there was a misrepresentation by the landlord at the time of making the lease that the premises were “mixed”’ (b) the landlord was estopped from claiming that the tenancy agreement was illegal; (c) the landlord is entitled to no remedy at all and the status quo ante should be restored.

            Held: (1) There was misrepresentation by the landlord. “There is some evidence (though it is not very clear) that the landlord himself had occupied the premises as a dwelling-house; certainly, the alterations made to the building by him are hardly consistent with them being ship premises only, and it is, of course, possible to mislead an intending tenant by the carrying out of such works without the making of any oral misrepresentations. But I can find no indication on the record that any representations made by the landlord (whether by act or by word) amounted to a willful misrepresentation as to the character of the building, and the very fact that the landlord appears himself to have used the premises in a manner which violated the provisions of the Township Rule would seem to indicate that he himself was unaware of the character of the user permitted by law.” “In Edler v. Auerbach (1949) 2 A. E. R. 692, which was a case in which the facts were somewhat different from the present case, the Court observed that the covenant as to user was not per se evidence that he parties contemplated an unlawful performance, because they might have intended to obtain the consent of the local authority. In deed, in so far as it is possible to ascertain the terms of the tenancy agreement, it did not preclude the tenant from obtaining any necessary permission from the Council, nor even to enter into possession at all.” (2) The doctrine of estoppel does not apply to the case. (3) “The landlord, in filing his plaint, does not appear to have relied on the tenancy agreement, but on the rights of an owner of property against an occupier. Had he confined himself to the terms of the agreement alone, without making any alternative plea, this Court might have had to support the arguments of learned counsel for the appellant and to refuse aid. This aspect of the matter was fully discussed in Mistry Amar Singh v. Kulubya (1963) 3 A. E. R. 499 and a similar position arises here. As the plaintiff neither was obliged to nor did found his claim on the agreement which (in one aspect) was unlawful, he was at liberty to put forward his case for consideration quite apart from the oral agreement.” (4) Appeal dismissed.