Mistry v Hirji (Civil Case No. 330 of 1950) [1952] EACA 273 (1 January 1952)

ORIGINAL CIVIL

Before CONNELL, J.

GHELLABHAI NATHU MISTRY, Plaintiff

v.

KARIM HAJI HIRJI, Defendant

Civil Case No. 330 of 1950

Rent Restriction Ordinance. 1949—Suit filed under Order 21, rule 90 Civil Procedure Rules.

The landlord (defendant) having obtained an order for possession in the Resident Magistrate's Court at Mombasa and having taken execution proceedings in this Court, the Magistrate ordered the plaintiff to give vacant possession of one room unless or until a suit be filed under Order 21, rule 90 of the Civil Procedure Rules.

The plaintiff thereupon instituted proceedings in the Supreme Court at Mombasa.

The defendant argued that the Coast Rent Control Board had exclusive jurisdiction and the Supreme Court had no jurisdiction, alternatively that if it were held that the proceedings could have been taken in the Supreme Court or before the Board, or the subordinate Court the plaintiff was entitled to costs on the subordinate Court scale.

Held (15-4-52).—(1) The Coast Rent Control Board has jurisdiction to decide questions of subtenancy.

(2) Where execution has been filed in Court, there is nothing in section 16 (5) Rent Restriction Ordinance, 1949, which gives the Coast Rent Control Board jurisdiction after that stage is reached.

(3) The suit could have been filed in the subordinate Court and costs were recoverable by the plaintiff if successful under the subordinate Court scale.

U. K. Doshi for plaintiff.

O'Brien Kelly for defendant.

JUDGMENT.—A preliminary point has been raised by Mr. O'Brien Kelly that the Supreme Court has no jurisdiction to hear this case as the matters herein are within the exclusive jurisdiction of the Coast Rent Control Board. Alternatively, he argues that if the Court holds that these proceedings could have been taken in this Court or before the Board or "Court" the plaintiff is entitled to recover costs only on subordinate court scale.

Mr. U. K. Doshi argues that in the particular circumstances of this case he was bound to take these proceedings in the Supreme Court as (a) the amount sued on is over Sh. 1,500 and (b) the suit is filed under Order 21, rule 90 of the Civil Procedure Rules, the landlord (defendant) having obtained an order for possession and having taken execution proceedings in the Resident Magistrate's Court, as a result of which the Magistrate ordered the plaintiff to give vacant possession of one room unless or until a suit be filed under Order 21, rule 90 of the Civil Procedure Rules and $(c)$ that the present suit is for declaration and the Coast Rent Control Board cannot make a declaratory order,

Mr. Kelly mainly bases his arguments on the facts that the plaint sets out the sub-tenancy and that by the definition clauses of the Rent Restriction Ordinance, 1949, it must be implicit that any dispute as to whether a claimant is a tenant or sub-tenant is a matter within the exclusive jurisdiction of the Coast Rent Control Board.

Reserving for a moment the question whether such a dispute is within the exclusive jurisdiction of the Coast Rent Control Board, in my view the paragraph which defines tenant clearly shows that a Board does have jurisdiction to decide question of sub-tenancy; besides that, the wide powers relating to investigating a complaint relating to the tenancy of premises made to it either by landlord or tenant of such premises under section 9 of the Ordinance, would enable the Board to exercise jurisdiction in case where a person claims to be a sub-tenant, though until the amendment of section 9 (5) it was not clear what orders the Board could pass in respect of such complaint.

The difficulty in the present case is that though prima facie one would have expected the landlord to have joined the present plaintiff as a party to a proceedings before the Board the defendant alleges in his defence that he was not aware of the plaintiff's possession of the premises.

I have not been addressed as to whether the Magistrate did in fact make an order under rule 87 or rule 88 of Order 21 Civil Procedure Rules so as to enable the plaintiff to institute suit under rule 90; I must take it that he did make an order under rule 88. I must take it also that the plaintiff is correct in instituting a suit. The question, however, still remains to be decided as to whether he must institute a suit before the Coast Rent Control Board; or before the subordinate court, or may institute it either before the Board or the Court or the Supreme Court. Mr. Kelly strongly relies on section 5 (1) $(n)$ of the Ordinance which states that the Coast Board shall have power in particular "to exercise jurisdiction in all-civil matters and questions arising under this Ordinance". He further quotes section 16 (6) an order against a tenant for the recovery of possession ... under the provisions of this section shall not affect the right of any sub-tenant to whom the premises or part have been lawfully sublet before proceedings for recovery of possession were commenced, "to retain" possession under the provisions of this<br>section; he argues therefore that there is nothing to prevent the plaintiff from instituting a suit or litigating his claim before the Coastal Rent Board. But it is clear to my mind that once an execution (as it was in this case) is filed in court, there is nothing to give the Rent Board jurisdiction after that stage is reached: section 16 $(5)$ is clear, in my judgment on that point.

A much more difficult problem to my mind is whether, a position having arisen under Order 21, rule 90, the plaintiff has to sue (according to pecuniary limits) in the subordinate Court or the Supreme Court under section 31. The words I must construe are "The Court" (i.e. subordinate Court) shall have jurisdiction to deal with—any claim or other proceeding arising under this Ordinance (including suits for recovery of possession) as to which jurisdiction or power is not specifically conferred by this Ordinance on the Board notwithstanding that the claim is above the "Courts" pecuniary jurisdiction.

The the present case the Rent Board, I have held, has no jurisdiction to entertain the present claim by virtue of section 16 (5). It might be argued perhaps that the jurisdiction of the Board being excluded in the present application, the present suit is not a claim or other proceeding "arising under this Ordinance"; but to my mind that rather difficult argument is conclusively answered by the very bracketed words which follow ("including suits for recovery of possession"); now Mr. Doshi was the first to admit that if *within* the pecuniary limits he would have filed this present suit in the subordinate Court. As I have already indicated, the claim which is in essence a claim to be entitled to possession as a statutory tenant, could have been adjudicated on by the Board if brought before any execution was filed. It is therefore in essence a claim arising under the Ordinance: but having regard to events which took place subsequently, i.e. the execution being filed it is now a claim in the words of section 31 "as to which jurisdiction or power is not specifically conferred by this Ordinance on the Board"; it is also essentially a suit for recovery of possession; the mere fact that the plaintiff has asked for a "declaration" does not in my view change the essence of the suit.

To my mind therefore the present suit could have been filed in the subordinate Court and the costs recoverable by the plaintiff if successful must under section 31 $(2)$ be under the subordinate Court scale.