Tulsidas Khimji v. Yusufali Gulamhussein Essaji & Another, Civ. App. 24-D-68, 3/12/68, Georges C. J.

Tulsidas Khimji v. Yusufali Gulamhussein Essaji & Another, Civ. App. 24-D-68, 3/12/68, Georges C. J.

The landlords claimed vacant possession of premises which later became controlled as a result of an amendment to the Rent Restriction Act. On 7 June 1967 judgment for the landlords was recorded by consent. The tenant was ordered to deliver vacant possession by 31 March 1968. The tenant failed to pay the rent as stipulated in the order until on month after the possession was due, On 1^st April 1968 the tenant lodged an application to set aside the consent order on the grounds that the landlords did not need the premises as they had other business premises in the town. The land lords claimed that their existing premises were inadequate and that the tenant had been consistently in arrears in payment of his rent.

            The Resident Magistrate ruled that the application was made solely on humanitarian grounds – the hardship which would be suffered by the tenant because he would not obtain alternative accommodation. He pointed out that the tenant should not go back on his undertaking in the consent order.

            Held: (1) An order made by consent should rarely be received or varied where both parties are represented by counsel at the hearing. (2) If a tenant agrees to give vacant possession having himself no idea where he intends to move, but merely hoping to find somewhere, he can hardly be heard to plead absence of alternative accommodation as a ground for recission. (Citing Khantibhai Patel v. Gulamhussein Bros., Civ. App. 12-D-68, High Court Digest, n. 503, December, 1968, where Hamlyn J. observed that there must be “a change of circumstances which could not have been envisaged at the time of the making of the original order”.) (3)(Obiter) If a magistrate directed himself that an order, since it was made by consent, could not be varied, he would be wrong. The fact that a consent order is, by definition, voluntarily agreed to by the parties, does not of itself prevent it from being varied. (4) (Obiter) Magistrates should not record consent orders for possession under the ground set out in the Act has been made out, and if so, that it is reasonable to make the order. Evidence of this need not be taken. A tenant may admit the existence of the ground, and the fact, which show that the order was reasonable. (5) The magistrate exercised his discretion properly. Appeal dismissed.