Tanzania Tailors v. Keshavji Lalji. Civ. App. 14-D-68; 5/9/69; Duff J.

Tanzania Tailors v. Keshavji Lalji. Civ. App. 14-D-68; 5/9/69; Duff J.

The resident magistrate made an order in which he stated that s. 19(5) of the Rent Restriction Act Cap. 479, while empowering the court to stay or suspended execution, did not entitle it to vacate a decree for possession already passed by the magistrate’s predecessor.

Held: (1) “Section 11D [of Cap. 479] provides as follows: - “11D. An appeal shall lie to the High Court from every order, decision or judgment made or given by the court in any claim, proceedings or other matter of a civil nature arising out of this Act and the provisions of the Civil Procedure Code, 1966 relating to appeal from orders and decrees in civil suits shall apply, mutatis mutandis, to appeals from such orders, decisions and judgments.” An order by the learned senior resident magistrate refusing to exercise the powers vested in him under section 19(5) of the Act is an order or decision given by the court in a matter of a civil arising out of Act. It falls within the clear words of the section and therefore is appealable”. (2) “The powers given under section 19 (5) of the Act are extremely wide and the legislature intended that the court should retain full control over the possession of the premises as between landlord  and tenant until the order for possession had been executed. The original order for possession was absolute, mesne profits being ordered at Shs. 300/- per month until vacant possession was delivered. By the order of the 20^th February, 1968, a stay of execution was granted subject to a condition that the mesne profits were paid together with the balance of the decretal amount. From the English authority cited it would appear that an absolute order for possession cannot be discharged, without more ado, on some later application (Payne v. Cooper (1957) 3 A.E.R. 355). There does, however, appear to be power to discharge or rescind an order for possession where subsequent to the original order for possession there has been another order, e.g., postponing possession on conditions (Hay mills Houses Limited v. Blake (1955) 1 A. E. R. 592). To justify a discharge or rescission of an order for possession there thus would appear to be three stages, although I do not for a moment suggest that two applications under section 19 (5) of the Act, following an absolute order for possession, would be necessary. Section 19 (5) of our Act is similar to section 5 (2) of the Increase of Rent and Mortgage interest (Restriction) Act, 1920, and, as stated by Lord Evershed in Payne v. Cooper, the terms of the English section comprehends the power to superimpose on an absolute order an order postponing possession on an absolute order an order postponing possession on conditions, i.e., power to convert an absolute order into a conditional order with the consequence that the order, if the conditions are satisfied, could then be discharged. An original unconditional order for possession can subsequently be made conditional and then subsequently discharged and only one application under section 19 (5) of the Act, following an order for absolute possession, would appear is to be necessary, a court being empowered to render an absolute order conditional which could result in the absolute order conditional which could result in the absolute order being discharged if the conditions were observed. The learned magistrate was therefore erroneous in his views and

could have made an order which could result in the order for possession being discharged.” (3) Matter referred back to lower court for fresh consideration of application.