Lalji Gajjar v. Karim. Civ. App. 35-D-68; 21/8/69; Biron J.

 Lalji Gajjar v. Karim. Civ. App. 35-D-68; 21/8/69; Biron J.

In proceedings before the Resident Magistrate’s court. The plaintiff/ respondent, who was the owner of a flat, alleged that the defendant/appellant had approached her with a request to lease to him the flat, that the respondent handed him the keys of the flat for him to view it, and that the appellant moved into the flat, not only without the respondent’s consent, but even without her knowledge. On discovering this, the respondent told him to vacate, and gave him a few days’ grace in order to find other accommodation. According to the appellant, he came to a firm agreement for a tenancy with the respondent at a rental of Shs. 200/- per month and Shs. 4,000/- as key money. He claimed that he moved in under the agreement; but upon his refusal to pay the key money, the respondent told him to vacate the flat. Although he had offered to pay the rent, the respondent refused to accept it. He also revealed that he had never really intended to pay the key money. The trial court found in the respondent’s favour that the appellant was a trespasser. An order was made granting the respondent possession as well as mesne profits at the rate of Shs. 200/- per month. The appellant, on appeal, argued that he was entitled to relief as there was a tenancy between him and the respondent; that the court ought to have considered the case of key money involved here and discouraged the practice; that the lower court should have considered and ruled on the question or the reasonableness of making the order for the recovery of the premises; and that the Court of a Resident Magistrate had no jurisdiction to determine the standard rent and could not therefore award mesne profits.

            Held (1) “It may well be argued, and in fact I think it was, that the appellant had really no case on the maxim ex turpi causa non oritur actio. However, if there is any substance in the appellant’s case the two parties were in pari delicto, and if in fact the appellant went into occupation in accordance with an agreed tenancy that would not disentitle him to relief. Further, even his admitted false pretence, that is, that he agreed to pay key money without any intention to do so, would likewise, not disentitle him to relief, as the Rent Restriction Act was enacted in order to protect tenants”. (2) “The law has been called an ass, but it is not mandatory for its administrators to wear blinkers. I must confess that I am not blind to the prevalence of the insistence on key money for the granting of a tenancy, but even if I were to accede to Mr. Kesaria’s request, unusual though it is, and consequently find in his client’s favour that there was a question of key money involved in this case, I would still find it inconceivable that the respondent would have agreed to a tenancy or let the appellant go into possession of the premises without the key money having been paid in advance, particularly having regard to the appellant’s standing. He is an undischarged bankrupt, and has been for years…. There are decrees outstanding against him for non-payment of rent on a previous tenancy which have not been satisfied nor are hardly likely to be. In these circumstances, as remarked, I find it inconceivable that there would have been any agreed tenancy without a condition precedent that the key money is paid in advance before entry on the premises. Even so it may will be argued that the agreement as to key money should be severable from the main contract as to the lese, and the court should accordingly uphold the lease, if only on the grounds of public policy, and the court could, I think, in the exercise of its jurisdiction in equity so sever this illegal term from the agreement and uphold the tenancy. However, even Mr.Kesaria has not invoked the court’s jurisdiction in equity, as, with all due respect to his client, it would hardly be said that he has come to court with lily-while hands. In all the circumstances I am very far from persuaded that this Court would be justified in transferring with the finding of the learned magistrate that the appellant was a trespasser, which, as I think sufficiently demonstrated, is, to my mind, amply supported and justified by the evidence. Mr. Kesaria has further argued that even if the respondent was entitled to possession, section 19 (2) of the Rent Restriction Act, as amended by the Rent Restriction (Amendment) (No. 2)  Act, 1966, applied, that:- “19. – (2) In any case arising under subsection (1), no order for the recovery of possession of premises shall be made unless the court is satisfied, by or on behalf of the landlord, that having regard to all the circumstances of the case it is reasonable to make such an order and, where the order is sought on any of the grounds specified in paragraphs. (c), (e) (h) and (1) of sub-section (1), that unless such an order is made great hardship will be caused to the landlord:” and the learned magistrate has not in this case ruled on the question of reasonableness. Mr. Bhimji, who appeared for the respondent, submitted that section 19(2) does not apply in the case of a trespasser, contending that the subsection will apply only in cases where possession is granted on any of the grounds set out in sub-section (1) of section 19, which in practically all cases provided for specifically refer to tenancies. Although the court has jurisdiction to deal with and grant eviction orders against a trespasser, as provided for in section 11A (b) of the Act as amended by the Amendment Act referred to above, which reads:-

“11A. – (1) (b) to make orders, upon such terms and conditions as it shall think fit, for the recovery of possession and for the payment or arrears of rent or mesne profits, which orders may be applicable to any person, whether or not he is a tenant, being at any material time in occupation or possession of any premises”; and section 19(1) commences with: - “(19. – (1) No order or judgment for recovery of possession of any premises to which this Act applies, or for the ejectment of a tenant there-from, shall be made or given unless –“; and there follows the various grounds where under possession may be granted, and subsection (2) above set out states, “In any case arising under subsection (1)” etc., I agree with Mr. Bhimji’s submission that “sub-section (2), which deals with the question of reasonableness should not, cannot and does not apply to the case of a trespasser. Even it I were wrong in so holding, there is authority which I do not consider it necessary to cite, that an appellate court may presume that where evidence has been led before the court of first instance in respect of reasonableness, even if no express reference is made to such aspect, the court has applied its mind to the question or reasonableness and has made its order accordingly. In this instant case not only would it be reasonable for a court to make an order for possession, but even if subsection 19(2) applied it would, to my mind, be most unreasonable not to make an order for possession, as, without mincing words, it is difficult to imagine a more undesirable tenant than or a less deserving case than that of, the appellant”. (3) “With regard to the question of the determination of the standard rent, I agree…. That the Court of a Resident Magistrate has no jurisdiction to determine the standard rent, which is nowadays solely within the province of the Rent Tribunal. However, the court in this case has no tin fact determined the standard rent, but simply assessed the mesne profits on the application of the proviso to section 2(1) of the principal Act …. On the evidence before it the court found the rent at the prescribed date to be Shs. 200/- ……. And accordingly awarded such figure as mesne profits, as it was certainly entitled to do.” (5) Appeal dismissed.