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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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Δεν έχει εντοπιστεί νομοθεσία ή απόφαση ή δικονομικός θεσμός στον οποίο να κάνει αναφορά η απόφαση αυτή
Μεταγενέστερη νομολογία η οποία κάνει αναφορά στην απόφαση αυτή:
Δεν έχει εντοπιστεί απόφαση η οποία να κάνει αναφορά στην απόφαση αυτή
(V18) 1 CLR 113
1948 February 28
[JACKSON, C.J., AND HALID, J.]
ELENI PANAYI,
Appellant,
V.
PAVLOS P. LOIZOU AND ANOTHER,
Respondents.
(Civil Appeal No. 3759.)
Landlord and tenant-Contract of lease-Extension-Subletting-Unreasonable withholding of consent to sublet.
Under a contract of lease the appellant let a house and shop to the first respondent for a period of one year commencing on the 1st March, 1942. Clause 5 of the lease provided that " if the contracting parties fail to notify each other, two months prior to the date of expiration of the lease, about the termination of the lease then the lease shall continue to be valid for..... ". The period for which the lease would be valid was left blank. Under clause 3 of the lease the tenant was entitled to sublet the demised premises to persons approved by the landlady. On or about the end of March, 1943, the first respondent sublet the house to the second respondent without the consent of the appellant.
Held : (i) that in the absence of any provision in the contract of lease the period for which it was extended was for one year, as the lease was yearly.
(ii) that appellant was not justified in withholding her approval on the ground that she required the house to live in.
Judgment of the District, Court dismissing the claim for possession of the demised premises and injunction affirmed.
Judgment of the trial Court varied in other respects.
Appeal from the judgment of the District Court of Limassol (Action No. 327/43) dismissing the plaintiff's claim for possession of the demised premises, injunction and arrears of rent. Cross-appeal by the defendants against the judgment of the District Court in favour of the plaintiff for mesne profits.
M. Houry for the appellant.
J. Eliades for the respondents.
The facts of the case are fully set forth in the judgment of the Court which was delivered by :
JACKSON, C.J. : This is an appeal by the plaintiff from the judgment of the District Court of Limassol. Under a contract of lease the plaintiff let a house and shop to defendant 1 for a period of one year commencing on the 1.3.1942 and ending on the 1.3.1943. Defendant 1 relying on clause 5 of the contract of lease retained the house and shop after the expiration of the lease.
Clause 5 of the lease ran as follows : " If the contracting parties fail to notify each other, two months prior to the date of the expiration of the lease, about the termination of the lease then the lease shall continue to be valid for... ". The period for which the lease shall be valid is left blank ; we shall revert to that later.
Under clause 3 of the lease the tenant was entitled to sublet the demised premises to persons approved by the landlady.
On or about the end of March, 1943, the defendant 1 sublet the house to defendant 2 without the consent of the plaintiff.
The plaintiff by her action claims from the defendants the possession of the house and shop and £2 per month as from the 1.4.43 as mesne profits, or otherwise compensation up to the delivery of possession of the house and shop.
There is a claim against defendant 1 for £1.4.0, arrears of rent in respect of the month of November, 1942.
The learned Judges constituting the Court disagreed in their finding.
The President of the District Court, in his judgment says : " From the evidence in Court it is clear she never consented to the sublease to defendant 2. She has not objected to the defendant personally but she has never, whatever the reasons may be, consented to the defendant 2 having the house, but she wished to have the house herself. This is a most reasonable reason why she should object to the house being sublet to any other person." He gave judgment for the plaintiff on all claims except claim for £1.4.0 which he dismissed.
THEMISTOS, D.J., says : " In my opinion the defendant 1, in subletting the house to defendant 2, exercised the right given to him by Exhibit 1, since the plaintiff raised no objection to the person of the sublessee. Had the intention of the plaintiff been to deny defendant 1 the right of subletting the house, she had to make it clear in Exhibit 1. As the terms stand defendant 1 was fully justified in subletting the house when the plaintiff's objection was for the increase of rent or the use of the house by herself and not the disapproval of the person of the sublessee." The Judge dismissed the claim of the plaintiff for the possession of the house and shop, but gave judgment in favour of plaintiff for £21.4.0 as follows : £20 rent due and £1.4.0 arrears of rent for the month of November, 1942.
The result was in the words of judgment as follows :
" Therefore the judgment of the Court is 6 (a) and 6 (b) dismissed. Judgment on 6 (c) for plaintiff for £20. 6 (d) dismissed."
Claim 6 (a) is for the possession of the house and shop. Claim 6 (b) is for injunction restraining defendants from interfering with the house and shop. Claim 6 (c) is for mesne profits or otherwise compensation £2 per month as from 1.4.43 up to the delivery of possession. Claim 6 (d) is for £1.4.0 arrears of rent in respect of the month of November, 1942.
The appeal is against so much of the judgment as adjudged that " items (a) and (b) and (d) are hereby dismissed " and also so much of the judgment in favour of the plaintiff in respect of item (c) as does not adjudge £2 per month from 1.4.43 up to delivery of the house to the plaintiff.
There is a cross-appeal by the defendants who ask that item (c) should be dismissed.
In the course of the hearing of this appeal several points have been raised by counsel appearing for the parties. However interesting and important they may be, we propose to confine ourselves only to the points which are necessary for the purpose of disposing of this appeal.
The first point naturally must be whether there was a breach of agreement entered into between the plaintiff and defendant 1. Mr. Houry contended for the appellant that defendant 1, after the expiration of the lease, became, if anything, a statutory tenant, because there was no agreement for the extension of the lease, as the period for which the lease shall be valid is left blank. We are unable to accept this contention. The contract of lease was a printed formula. But the provision about an extension of the lease was in writing which shows that the attention of the parties was directed to it. Moreover the appellant failed to give two months notice to terminate the lease as provided in clause 5 and accepted rent for the month of March, 1943, after the expiration of the lease. In the absence of any provision in the contract of lease we think we are justified in holding that the period for which it was extended was for one year, as the lease was yearly.
The whole question in this case is whether defendant 1 has committed a breach of clause 3 of the contract of lease. We think Mr. Houry went too far in his suggestion that, from the provisions contained in the contract, the appellant was entitled to withhold her approval even though it was arbitrary. The proposition of Mr. Houry negatives the right of defendant 1 to sublet at all, while Mr. Houry admitted that defendant 1 had the right to sublet, and that the only qualification was that the person must be approved by the landlady.
The clear language of clause 3 leaves no doubt that defendant 1 was entitled to sublet the demised premises to persons approved by the landlady.
The plaintiff by her letter of 30th March, 1943, asked defendant 1 to quit and deliver up possession of her house on the ground that he had sublet to a third person who did not meet with her approval and because she required the house to live in herself, whereas in her evidence plaintiff stated : " I would not mind defendant 2 having the house if I did not want to live in it myself." The President of the District Court, who gave judgment for the plaintiff, found that she did not object to the defendant 2 personally.
In the circumstances, the plaintiff was not justified in withholding her approval on the ground that she required the house herself to live in.
This appeal must be dismissed with regard to items (a) and (b), which refer to possession of the demised premises and injunction.
The appeal is allowed with regard to item (d) which refers to arrears of rent in respect of the month of November, 1942. On this item the onus of proof was on defendant 1 who failed to satisfy one of the Judges constituting the Court.
The cross-appeal with regard to item (c), which refers to mesne profit or otherwise compensation, is allowed, as defendant 1 never refused to pay the rent. The result is judgment for plaintiff for £1.4.0.
All the other claims of the plaintiff are dismissed.
The appellant must pay the costs of this appeal.