Giga v. Sharma Civ. App. 17-D-70; 29/4/71; Biron J.

Giga v. Sharma Civ. App. 17-D-70; 29/4/71; Biron J.

The appellant filed a suit in the Court of the Resident Magistrate claiming possession of a flat and mesne profits. He alleged that the respondent’s tenancy was a fixed term for one year from the 20/4/68 to 19/4/69 and that this was as a result of an order made by a District Court under s. 19(j) (i) of the Rent Restriction Act (Cap. 479). A preliminary point was raised that the order on which the appellant was relying was unenforceable and a nullity because the court which had made the order, being a District Court and not a Court of the Resident Magistrate, had no jurisdiction to make the order. The Resident Magistrate had no jurisdiction to make the order. The Resident Magistrate upheld the submission. Appellant appealed on arguing that the order of the District Court fixing the term of the tenancy had been a consent order and therefore the Resident Magistrate could not go behind it and that the respondent was estopped from challenging the jurisdiction of the court having agreed to the order made by the District Court.

Held: (1) “With respect… The parties and the courts appear to have misconceived the whole proceedings, particularly in referring to the order of the District Court as a consent order whereas in fact it was nothing of the sort ……… “It will be noted that the so-called consent order was made on the application of the landlord, for some reason which is far from clear referred to as the decree holder, under section 19(j) (i) of the Act.” [The learned judge then set out the provision of s. 19 (j) (i) and continued] “The original application made before the district court should not have been made under section 19 of the act for, as is obvious from the wording of the sub-paragraph it was purportedly made under what constituted a ground for possession. It does not empower a court to approve a letting for a definite period. This power is conferred on a court under section 11A of the act as amended by the Act of 1966.” (2) “The original application in the district court was merely for the approval of a letting and as far as it was termed a consent order, it was misconceived.” (3) “As noted, the appellant landlord was claiming possession of the premises on the sole ground of the ‘order’ made by the District Court which, as I think sufficiently demonstrated, had no jurisdiction to make such ‘order’. Actually, in my view it should not even be termed an order, but an approval. The ‘order ‘was therefore a nullity and it consequently follows that he plaint disclosed no cause of action.” (4) Appeal dismissed.