J.P. Mahuvawalla v. B.R. Iranee

CACV000002/1946

APPELLATE JURISDICTION

APPEAL NO. 2 of 1946

(Tenancy Tribunal Appeal No.41/46)

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Coram: Blackall C.J., Gould J.

Date of Judgment: 27 January 1947

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JUDGMENT of Blackall C.J.

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1. This is an appeal from the judgment of Williams J affirming a decision of Tenancy Tribunal A in which an eviction order was made against the appellant under Article 5 para 1(a) of the Landlord and Tenant Proclamation (No.15 of 1945). That paragraph provides that a Tenancy Tribunal may make an order for the eviction of any person who, in the opinion of such Tribunal, does not bona-fide claim possession under a landlord or his predecessor in title.

2. The facts of the case may be briefly stated. The appellant was employed by the respondents under an agreement which provided, inter alia, that his remuneration would be $300 per month and that "this amount shall include all personal expenses of the employee excluding lodging which will be provided by the firm".

3. The appellant's employment was terminated on 30th April, 1946, and as he refused to quit the lodging provided for him viz., the 2nd floor of the respondent's house at 52 Wyndham Streetm an application for an eviction order was made and granted.

4. A number of authorities under the English Rent Restriction Acts have been cited by counsel but as the relevant parts of Proclamation 15 of 1945 differ in some material respects from the English Acts, those decisions have only a limited application. The question before this Court is whether the fact that the appellant was provided with free lodging as part of his remuneration gives him protection under the Proclamation and the answer to this depends upon the terminology of that enactment.

5. The first point to be considered is whether or not "rent" in Article 1 and other Articles refers only to money. At Common Law the term "rent" was not restricted to pecuniary rent; tenancies by way of services were formerly very common. It has been held, however, that under the Rent Restriction Act 1920, the term "rent" applied only to pecuniary tenancies (Hornsby v. Maynard (1925) 1 K.B.D. 514) and I think that having regard to the provisions of Proclamation 15 of 1946, the term "rent" in the Proclamation should be so interpreted.

6. As then the appellant paid no rent, he is neither a Principal Tenant nor a sub-tenant within the meaning of Article 1, and since every tenant must fall within one or other of these categories, it follows, that he is not a tenant. How then can he "bona-fide claim possession under a landlord"? As to this Mr. D'Almada urged that the object of the Proclamation is to protect all persons who entered lawfully into the possession of premises and he argued that since the appellant's original possession of the premises was by virtue of his employment and consequently lawful, he comes within its terms. I think this interpretation is too wide, for it gives no effect to the words "under a landlord" in para 1(a) of Article 5, and those words, in my view, indicate that unless a person has a bona-fide claim to possession arising out of the relation of landlord and tenant, he may be evicted. The fact that his possession is lawful in the sense that he is not a trespasser or even that he resided in the premises under the terms of his employment, is not enough.

7. In my view, therefore, the decision of the Tribunal was correct in law and, I might add, consonant with reason and good sense.

8. I think the appeal should be dismissed with costs.