Farook v. Jeraj. Civ. App. 25-D-69; 14/11/69; Georges C. J.

Farook v. Jeraj. Civ. App. 25-D-69; 14/11/69; Georges C. J.

A tenant appealed from the judgment of the District Court at Songea, then presided over by a Resident Magistrates, ordering him to quit and deliver up the landlord possession of the suit premises. The landlord’s right of occupancy has expired. The Land Officer served on him a notice to quit and deliver up possession of the plot. To comply with this order he sought vacant possession from the tenant. The tenant admitted the facts, but pleads that he has been unable to find other suitable alternative accommodation in Songea. He states that he carries on business on the premises and that he will suffer great hardship if he is forced to move. The landlord states that this is in fact not true. The business on the suit premises is being run by the tenant’s sons and he has two other sons each running his own business in other parts of the town. It appears not to be disputed that the tenant does have two sons with business in the township.

            Held: “On the facts, it is clear that it was correct that an order for possession should be made. The landlord’s right of occupancy having expired he must give up the plot. The evidence is that the area is to be redeveloped and more substantial buildings put up, so that in any event the suit premises cannot continue to exist in their present condition.” (2) “A certified copy of the order appealed from has not been attached to the memorandum of appeal. It has been held in Kotak Ltd v. Koovarji [1967] E.A. p. 348 that an appeal filed without such an order has not been properly presented and cannot be entertained.” (3) “I pointed out ….. that the order appealed from had been made by the District Court whereas the Rent Restriction Act had vested jurisdiction in the Resident Magistrate’s Court. In a yet unreported case, Tadjin Allarakhia v. H.H. Aga Khan, Civil Case No. 28 of 1968 Biron J. held that the District Court had no power to hear an application for vacant possession under the Rent Act even if preside over by a Resident Magistrate. He held:-

“The fact that a court is presided over by a magistrate of a particular grade does not ipso facto transform that court into the class of the magistrate’s grade. It is expressly provided for in the Act that each class of court shall have its own register and its own prescribed seal. These instant proceedings were heard and tried by the District Court of Dar es Salaam, and the order and decree had issued from that court. Therefore, in my judgment despite the fact that the court was presided over by a Senior Resident Magistrate, the trial was in fact held in and the order and decree made by, the District Court of Dar es Salaam, which court has, as indicated, no jurisdiction to try such suit.” The question, therefore, arises whether this Court ought not, in its revisionary jurisdiction, to set aside an order which has clearly been made without jurisdiction even though an appeal from that order has not been properly presented and cannot be entertained ….. it would appear that in the case of Dayaran Jagivan v. Govardhandas Dyaram, I.L.T. 28 Bombay 458, a not dissimilar situation arose. In that case certain property was attached in execution arose. In that case certain property was attached in execution of a judgment obtained in the court of Small Causes Bombay. The defendant applied to have the attachment set aside and succeeded. The plaintiff appealed to the District Court and on appeal the attachment was restored. The defendant further appealed to the High Court. There, it was admitted that the District Court had no jurisdiction to make an order on an appeal from the removal of an attachment. The order made by the District Court was, therefore, completely without jurisdiction. Since there could have been no appeal in the first place, it followed that the second appeal to the High Court was itself incompetent. The court was, however, asked to exercise its revisional jurisdiction to set aside the order made by the District Court. This the court refused to do on two grounds:- (1) that no objection to jurisdiction had been taken at the hearing before the District Court; and (2) that setting aside the proceedings might prejudice the plaintiff who would find himself time barred if he began at that stage to make a fresh start in pursuing his remedies. The High Court allowed the order of the District Court to stand although made without jurisdiction. It is true that in this case the landlord will not be time barred should he be ordered to begin again in the proper court to enforce his rights. The facts, however, are so clear that only one result can be forecast if the proceedings are commenced again. There will only t be delay and additional costs. Taking this into account and taking into  account also the fact that the District court was presided over by a Resident Magistrate, the class of officer who would have presided had the case been heard in the appropriate court, I would hold that this court ought not to interfere to set aside the decree.” (4) Appeal dismissed.