Karimjee Properties Ltd. v. Khaki and Cameraprix Civ. App. 10-D-70; 12/6/70; Georges, C. J.

Karimjee Properties Ltd. v. Khaki and Cameraprix Civ. App. 10-D-70; 12/6/70; Georges, C. J.

The appellant landlord sued the defendants for possession of premise on the ground that the first defendant had without permission assigned the tenancy to the second defendant. The plaint averred that notice of termination had been served on the first defendant who failed to hand over possession at the expiration thereof. At the hearing, preliminary points were raised that the plaint disclosed no cause of action because no allegations had been made that: (a) Defendant had been served with a notice to quit, (b) It was reasonable making an order for vacant possession, and (c) the rent claimed was the standard rent. The trial magistrate accepted contentions (a) and (b) and rejected the plaint.

            Held: (1) “One can only hope that at some non-too-distant date, the rule that a plaint must be rejected when it fails to disclose a cause of action will be reviewed, so that these fruitless and dilatory investigations into the minutiae of pleadings will abate, at great savings in costs, and, I would think, enhanced appreciation for the legal processes, which one would assume are intended to resolve the problems of those who seek such solutions without being begged in arguments over matters of form”. (2) “….. I am satisfied that an averment that a tenancy was duly terminated by notice expiring on a stated day necessarily involves an averment that the notice was served. This does not have to be spelt out. The defendant has been informed of the effective date of termination of the tenancy. This is stated in paragraph 7 to be 31^st March, 1969. On this point, therefore, I hold that he pleading is not defective.” (3) “The Rent Restriction Act makes it clear that a court is not to make an order for possession on the ground of sub-letting or assigning premises without consent, unless it is reasonable in all the circumstances of the case to make an order. The argument is that since all matters must be pleaded which are necessary to make the granting of an order possible, there must be an averment that it was reasonable in the circumstances to make the order. …. Section 19(2) of Rent Restriction Act places squarely on the court the question of deciding whether or not it is reasonable to make an order. This is a decision which it will make on such facts as the plaintiff and the defendant can adduce. The plaintiff may very well not intend to adduce any special facts. He may merely seek to convince the court that it is not reasonable for a tenant of controlled premises to deprive the landlord of the right of selecting his new tenant by sub-letting the premises without consent and then himself departing. There can be little point, surely, in merely stating in the plaint that I t would be reasonable to make the order. This is a question of argument, not a statement of fact. If no new facts are to be adduced to support that argument, other than those already set out in the plaint, then none need to be pleaded. If, as I think, the question of reasonableness is a question of argument and opinion, then it does not have to be pleaded. This was in essence the view taken by the learned Senior Resident Magistrate in the earlier case, and I find it far more convincing that his conclusion in this case, that a plaint is defective if it does not state that it would be reasonable to make an order.” (4) “If the plaintiff wishes to rely on facts other than those necessary to establish the ground itself, then he should do so. Failure to do this will not make the plaint defective, but he should be made to apply for an amendment of his pleading, setting out the facts; the defendant should be allowed to amend his written statement of defence. If he wished to do so, and the plaintiff should be made to pay the costs thrown away as a result of the adjournments and the amendments. This course would enable of the adjournment and the amendments. This course would enable fundamental justice to be done, while still placing due emphasis on the need to define the issues as sharply as possible in the pleadings.” (5) “Before the (trial) Magistrate, no argument was offered on the third contention that the claim for rent could not succeed because there was no averment that the rent claimed was the standard rent. I am satisfied that this contention is totally without merit.

If the defendant wishes to allege that the rent is not payable because it is not the standard rent, then she should so aver. There is no need to plead the legality of a rent which the plaint makes clear has been paid and received from the inception of the tenancy. (6) Appeal allowed.