PEEROO,FOOLAS,MOHAMEDDALLY,KANTHASAWMY,RAJCOOMAR & ORS V GHURIBURRUN & ORS.

1984 MR 77
1984 SCJ 76
Ahmed and Ahnee*, JJ.

The respondents are the owners of a building situate at Centre de Flacq and
which is let to the seven appellants, the Flacq Drug Store and the Carnaval
Casino Club.

In separate plaints entered before the District Court of Flacq, in October 1980,
the respondents averred that the seven appellants were paying, in respect of
their various tenancies, a rent which was "substantially below the rent which
could reasonably be claimed having regard to the aggregate value of the building
and the site thereof" and prayed that the Court should determine the standard
rent of each of the premises occupied by the appellants.

In answer to a demand for particulars, the respondents admitted that (a) the
building in question was first let in 1974; and (b) their averment that the rent
paid by each of the appellants was substantially below the rent which could
reasonably be claimed was based “on the value of the house and the land".

In their plea, the seven appellants contented themselves to deny each and every
allegation contained in the respective plaints.

On motion of the parties the seven cases were, consolidated and heard together
both before the trial Court and on appeal.

The only material evidence adduced by the respondents, in the Court below, was
that of Mr Sunnassee, a Sworn Land Surveyor, who said that the land on which the
building was erected was worth Rs 266,000 in 1974, and that the building itself
must have costed Rs 387.840. He therefore estimated the aggregate value of the
land and building at Rs 653,840 in 1974.

In cross-examination the witnesses for the respondents admitted that, acting on

a report of Mr Sworn Land Surveyor Adolphe, the District Court of Flacq had,
some time before fixed the standard rent of the Flacq Drug Store at Rs 535 per
month. Nothing was done to establish any comparison between the part of the
building occupied by Flacq Drug Store and those occupied by the appellants. The
witnesses further admitted that Mr Adolphe had estimated the land at Rs 133,000
only.

At the close of the case for the plaintiff, Mr Abbasakoor, who appeared for the
defendants, in the Court below, submitted that the plaint disclosed no cause of
action and that there was further no evidence on record to prove what a willing
purchaser would have been prepared to pay for the building in question in 1974.

The Magistrate brushed aside the submission of Mr Abbasakoor and held that in
his opinion "the absence of what a willing purchaser will pay, as regards the
premises in 1974, is not fatal to the case" and ordered that the case should
proceed.

Mr Abbasakoor was then allowed to call evidence to prove that at the death of
the plaintiffs’ author, in 1978, the building in question had, for succession
purposes, been declared for a value of Rs 80,000 only!
We may, en passant, point out that the submission of Mr Abbasakoor being one of
no case to answer, the Magistrate should normally have put him to his election
not to call evidence before ruling on his submission.

In Nathoo v. Bissessur [1953 MR 227]this Court recalled what Lord Greene MR had
said in Yuill v. Yuill (1945) P. 15 on the practice applicable where there is a
submission of no case to answer in a civil case, namely-

The practice which has been laid down amounts to no more than a
direction to the Judge to put Counsel who desires to make a submission of
no case to his election, and to refuse to rule unless Counsel elects to
call no evidence. Where Counsel has so elected he is, of course, bound:
but if for any reason, be it through oversight or (as here) through a
misapprehension as to the nature of Counsel's argument, the Judge does not
put Counsel to his election, and no election in fact takes place, Counsel
is entitled to call his evidence just as if he had never made the
submission.

In his final judgment the Magistrate considered that the land had to be assessed
at the value estimated by Mr Adolphe-who was not a witness before him. On the
other hand he accepted the assessment of Mr Sunnassee as to the value of the
building and concluded that "the aggregate value of the site and building would
fetch on the open market by a willing vendor at the time of occupation would be
Rs 520,840" (sic).

He then proceeded to fix the rent payable by each of the appellants according to
a "barème” which we are unable to follow.

His judgment is now questioned-by the seven tenants-on the following grounds-

1. Because in the absence of any evidence as to the "value" of the premises let
as defined by Ordinance 13 of 1960, the learned Magistrate ought to have non-
suited the Respondents (then Plaintiffs).

2. Because (i) having discarded the evidence of Mr Sunassee as to the value of

the land,(ii) not having heard Mr Adolphe in the present case,(iii) in the
face of the Valuation of the property by the Respondents themselves as
declared to the Registrar General, the learned Magistrate was wrong to hold
that the aggregate value of the site and building would fetch on the open
market by a willing vendor at the time of occupation would be Rs 520,840.-

3. Because the learned Magistrate failed to give due and proper consideration to
the rent determined by the Court for the premises occupied by the Flacq Drug
House.

4. Because the rate of return assessed by the learned Magistrate is unreasonably

high.

5. Because the standard rent as determined by the learned Magistrate in respect

of the premises occupied by the appellant (then defendant) is in all the
circumstances of this case, too high.

It is enough to say that this Court has consistently held that for the purposes
of the proviso to the definition of standard rent in section 2(3) of the
Landlord and Tenant Act, the word value means "the amount which the property and
the site thereof, if sold in the open market by a willing seller, might
reasonably be expected to realize" and that it is not proper to base a valuation
on the cost of construction of a building and the price of the land.

In Ng Koon Hing v. Ng Hing Cheung [1981 SCJ 424] the Court said the following—

It has been consistently held by this Court that what has to be

established is the open market value of the property as defined in section
2(3) of the Ordinance and not, by itself, the amount which the landlord is
taken to have spent on the property.

More recently, in the case of Rambhojun v. Ramchurn [1983 SCJ 11] the
Court said-
Clearly the cost of construction method is not the method envisaged
by the law, and for good reason. One may build a palace in a desert, or in
Mare La Chaux for that matter, and it may not be worth, in terms of the
open market value, the bricks and mortar it is built with.

Again, in the case of Beeharry v. Narayan [1981 SCJ 183] this Court held that "in
the absence of conclusive evidence concerning the value of the premises which it
was incumbent on the respondent to place before the Court, the Magistrate should
have non-suited him".

In the present case we are bound to hold that there was no conclusive evidence
of the "value" of the premises before the trial Court.

The respondents have also taken a preliminary objection to the appeal of

appellant Ramdewar on the ground that the notice in writing was not given to the
Magistrate of Flacq within ten days from the date of judgment as required by
law.

It is undisputed that the judgment was delivered on the 28 May and that the
notice was given on the 8 June viz eleven days after the judgment and that the 7
June was a Sunday, a dies non.

The respondents do however contend that the last day for giving the notice was
the 6 April. Learned Counsel for the respondents relied on section 38(i)(d) of
the Interpretation and General Clauses Act which says that in computing time for
the purposes of any enactment or document where there is a period of time
specified to run from a given date, that period of time so specified shall be
calculated so as to include the given day.

The delay within which notice in writing of an appeal must be given to the
Magistrate is fixed by section 37 of the District and Intermediate Courts (Civil
Jurisdiction) Act which provides that such notice, must be given "within 10 days
from the date of the judgment exclusively".

We agree that since the passing of the new Interpretation and General Clauses
Act, where a statute provides that something must be done within .....days from
any event the die a quo must now be counted.

Section 38(l)(d) of the Interpretation and General Clauses Act must however be
read subject to section 3(2) of the Act which provides that the Act shall apply
to all enactments “unless the context otherwise requires". The word
"exclusively" to be found in section 37(i)of the District and Intermediate
Courts (Civil Jurisdiction) Act makes it clear that in spite of the new
provisions of the Interpretation and General Clauses Act, the dies a quo must
not be counted.

As the 10th day after the judgment fell on a Sunday it was perfectly legal for
the appellant to give notice in writing to the Magistrate the next day, Monday
the 8 April.

The preliminary objection is overruled.

In view of what we have said earlier concerning the merits of these appeals we
have no alternative: we allow the appeals, set aside the judgment of the learned
Magistrate and substitute therefor a non-suit.

The respondents shall pay the costs of this appeal.

A copy of this judgment shall be filed in each of the relevant court records.

Appellant in all cases Attorney O N Abbasakoor.

Sir H Moollan Q C.
Respondent in all cases. Attorney L Gujadhur.
J Tsang Man Kin, of Counsel.

Records No. 3329, No. 3330, No. 3331, No. 3332, No. 3333, No. 3334, No. 3338.