Landlord and tenant-Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954-Sections 9 and 10-Application by statutory tenant for a new lease refused by competent court-Whether tenant could oppose claim for mesne profits on grounds rejected by Court-Whether res judicata-Whether tenancy extended by section 10.
Case summary
The defendant was a statutory tenant occupying business premises, the property of the plaintiffs, at 25th December, 1954, when the Increase of Rent (Restriction) Ordinance, 1949, expired in its application to such premises. The defendant remained in possession, but on 2nd June, 1955, his application to a competent court for the grant of a new tenancy under section 9 of the Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, No. 57 of 1954, was rejected. The application was refused on the ground that the section did not apply to the tenancy because the premises were not used for retail trade.
The defendant vacated the premises on 4th July, 1955. The plaintiffs claimed mesne profits from 25th December, 1954, to 4th July, 1955. The defendant maintained that, for the purposes of the suit, he carried on business as a retail shop and should be held to come within the provisions of section 9 of Ordinance No. 57 of 1954, and even if his statutory tenancy was not a tenancy to which section 9 applied, nevertheless it was extended to 2nd July, 1955, by virtue of section 10.
Held (26-11-56):
The decision of the competent court that the statutory tenancy was not a tenancy to which section 9 of Ordinance No. 57 of 1954 applied was binding upon the defendant in the present case as res judicata. In fact, the defendant had not used the premises for the purpose of retail trade and was not protected by section 9 of the Ordinance.
Section 10 of Ordinance No. 57 of 1954 was to be read with section 9 thereof. The words “expiring tenancy” appearing in subsection 9(1) were restricted to a tenancy to which the section applied. Subsection 9(2) states the tenancies to which the section applied, and as the suit premises were in fact or in law not covered by the terms of subsection 9(2), the tenancy was not an “expiring tenancy” within the meaning of the Ordinance, and therefore section 10 could not be applied so as to extend the tenancy up to 4th July, 1955.
The defendant was liable to mesne profits within the statutory meaning of section 2 of the Civil Procedure Ordinance, Cap. 5.
Counsel:
D.N. Khanna for the plaintiffs.
Hunter for the defendant.
