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Kantibhai C. Patel v. Gulammusein Bros. Misc. Civ. App. 12-D-68, 24/6/68, Georges C. J.



Kantibhai C. Patel v. Gulammusein Bros. Misc. Civ. App. 12-D-68, 24/6/68, Georges C. J.

This case arose out of previous proceedings in which respondent landlord had filed suit for vacant premises against applicant tenant. A consent order was filed in July 1966 requiring applicant to vacate the premises on or before 31st December 1966. However, the landlord

Did not immediately enforce the order and applicant remained in possession and continued to pay what he called “rent. On 21st November 1967, the landlord gave applicant notice to enforce the consent order and applicant thereafter applied to the Senior Resident Magistrate for a stay of execution of the order or its discharge. [Rent Restriction Ordinance Cap. 479, s. 19(5), that the landlord had agreed to a month-to-month tenancy after the consent order to vaca, and that the consent order was no longer valid; (b) that the landlord was stopped from enforcing the consent order by his subsequent action; (c) that there had been no jurisdiction to entered the consent order; and (d) that in any event it would be unjust and inequitable to enforce the order. The Senior Resident Magistrate refused to grant a stay and an appeal of his refusal was filed with the High Court. In addition, applicant applied for a stay of order pending the High Court appeal, and it is this application which the High Court  considered in this judgment.

            Held: (1) Despite the fact that Order XXXIX, Rule 5 (3) of the Civil Procedure Code contains no provision on the matter, the High Court must consider the merits of the appeal in order to decide whether to grant a stay of enforcement of the original order pending appeal. In is an arguable case, not whether there are substantial merits to the appeal. (2) The order of the Senior Resident Magistrate denying a stay of the original consent order was itself appealable under section 11 D of the Rent Restriction act which provides that every order, decision or judgment of the court in any matter of a civil nature arising out of that Act is appealable. The appeal is not barred by section 70(3) of the Civil Procedure Code which bars appeals from consent decrees, for this appeal is not from the original consent order but from the refusal of the Senior Resident Magistrate to stay enforcement of that order. (3)The Court cannot consider whether their was jurisdiction to grant the original consent order, because the time for appealing that order has passed. The Court stated, obiter, that were it possible to consider the matter there would be great doubt as to whether such jurisdiction existed, because section 19 of the Rent Restriction Act permits a judgment for recovery of possession only if the court finds that there are alternative accommodations, that the order is reasonable, etc. “The procedure … should more nearly follow the acceptance of a plea of guilty in a criminal case than the recording of a consent order in a civil case.” (4) It is arguable that a consent order for possession of property may be varied [Citing Hegarry’s Rent Act, 9th edn., p. 227], and the scope of section 19(5) of the Rent Restriction Act has not been authoritatively defined. It can also be argued with force that the magistrate refused to stay the consent decree because he was not aware of his discretion to do so. Thus, the appeal must be said to be arguable. Stay of execution ordered pending the appeal. 

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