Court dismisses application to set aside writ for possession and rent arrears under Rent Control Law.

[*227] 1976 May 5

(BOYIADJIS, S.D.J.)

IN THE DISTRICT COURT OP NICOSIA

Nicos Κ. Koundouros,

Plaintiff,

and

CharaIambos HjiNicola and Another,

Respondents,

(Action No, 868/76).

Civil Procedure - Practice - Form of proceedings - Action by means of writ of summons for an order of possession and for arrears of rent - First relief could only be sought by application - Rule 3(1) of the Rent Control Rules, 1975 - Second relief could only be sought by writ of summons - Both reliefs closely connected - It would be inconvenient and unreasonable and would result in additional expenses to order separation of the two reliefs.

Civil Procedure - Practice - "Frivolous and vexations" action - It applies only to those pleadings which are so clearly frivoulous that to put them forward would be an abuse of the process of the Court - Action raising fairly the cause or causes of action which are fit to be adjudicated upon - Not frivolous and vexatious.

Civil Procedure - Practice - Indorsement of the writ -

Irregularity of form - Action for recovery of possession under the Rent Control Law - Value of property sought to be recovered not set out on the indorsement - Order 2, rule 10 of the Civil Procedure Rules - Provisions of this rule never intended to apply to cases for recovery of premises under the Rent Control Law.

Rent Control Law, 1975 (Law 36 of 1975) - Claim for relief thereunder - Should be sought by means of an application - Rule 3(l) of the Rent Control Rules, 1975. [*228]

E. Lemonaris, for L. Papaphilippou, for Applicants- Defendants.

Ph. Clerides, for Respondent-Plaintiff.

RULING

The following ruling was delivered by:- BOYIADJIS, S.D.J.: The plaintiff’s claim [*229] in this action is for an order for possession of his shop situated at Nicosia and leased to defendant No.1 under the guarantee of defendant No.2. The plaintiff also claims £372.5OO mils arrears of rent upto 15.2.1976 and mesne profits thereafter.

Before entering appearance to the action or taking any other step therein, the defendants took out the present summons whereby they pray for an order of the Court "setting aside the writ of summons and/or suspending further proceedings in the action and/or dismissing the action”.

On point of form the application is based on Order r. 9, and Order 27, r. 3.

Applicants therein raise a threefold objection to the writ of summons.

First objection

Applicants argued that the writ of summons is irregular because it contravenes the provisions of section 25 of the Rent Control Law No. 36 of 1975 and Rule 3 of the Rent Control Rules of 1975. The cornerstone of applicant’s objection in this respect is that the relief sought in the action should have instead been sought in an originating application in accordance with Forms No.1 and 2 of the aforesaid Rules since the issues involved are matters which are covered by the provisions of Law 36 of 1975.

The respondents' answer to the above submission is that the aforesaid Forms 1 and 2 of the Rules made by the Supreme Court pursuant to section 25 of the Law, apply only [*230] in cases where the relief sought is the fixing of the rent in respect of premises covered by the Law and not in cases where the claim is for an order for possession.

In exercise of the powers vested in it by virtue of section 25 of the Rent Control Law No. 36 of 1975, the Supreme Court of Cyprus made the Rent Control Rules of 1975. The aforesaid enabling section confers on the Supreme Court power to make such Rules and give such directions as it may think fit for the purpose of giving effect to the provisions of the Law. The power thus conferred upon the Supreme Court is very general and is without any limitations or reservations.

It is beyond any doubt that the Supreme Court could, under section 25, make Rules prescribing the procedure to be followed for the determination of any dispute which arises from the application of the provisions of the Law whether such provisions refer to the fixing of the rent or to the recovery of possession of promises to which the Law applies.

The question is whether the Supreme Court by making the aforesaid Rent Control Rules of 1975, has used its powers exhaustively and has made Rules prescribing the procedure for all matters arising from the application of all the provisions of the Law or whether it made only limited use of its powers by prescribing a special procedure for some matters only, leaving outside the ambit of the Rules other matters also arising from the application of other provisions of the same Law.

The answer to the above may be found in the correct construction of the relevant provision of the Rules which is [*231] Rule 3(1) reading as follows:-

###

A fairly accurate English translation of the above Rule is as follows:-

"The procedure before the Court is begun by the filing with the Registrar of the Court of an application by the applicant in the Form No.1 accompanied by a statement of claim in the Form No.2 setting out in a dear way particulars of the relief sought and of the facts upon which the applicant intends to rely".

Form. No.1 and Form No.2 and also set out in the Rules and form part and parcel thereof.

A literal meaning should be given to the words used in the Rules. Rule 3(1) should bo read and interpreted in conjunction with the whole text of the Rules. The words used are clear and unambiguous. I see no reason why we should read in Rule 3(1) words restraining the application of this rule to cases where the relief sought is the fixing of the rent by the Court only. If this was the intention [*232] of the Supreme Court in making the Rules, it was very easy for them to say so.

Upon the correct interpretation of Rule 3(1) it is evident that, if the relief sought or the matters to be decided in this action arise from the application of any one of the provisions of this Law, then the plaintiff ought not to have taken out the writ of summons but should have instead filed an application in respect thereof.

In reaching the aforesaid conclusion I found help in the comparison of the said section 25 and Rule 3(1) on the one hand, and the corresponding enabling section 10(10) of the Increase of Rent (Restriction) Laws, 1942 and 1943 and the corresponding Rules 7 and 8 as well as Form No.1 of the Rent Assessment Rules, 1943, on the other hand. I also compared and distinguished the corresponding enabling section 25 of the Rent (Control) Law, 1954, and the corresponding Regulations 6 and 7 as well as Form No.1 of the Rent (Control) Regulations, 1955.

Although the last aforesaid two corresponding enabling sections of the previous enactments were also wide enough, the Rules and Regulations made thereunder prescribe a procedure by application to the Board only in cases where the relief sought is for the fixing of the rent. This is evident from the express and clear words used in Form No.1 prescribed in both cases and which forms part of the previous Rules and Regulations.

In the case under consideration the relief sought is twofold. First, it is for the recovery of possession of [*233] the shop to which this Law applies. This is clearly a relief which should be set out and pursued in proceedings instituted by an application under Rule 3(1) and not by action. If that was the only relief sought in this action or if the other relief sought was one which should have also been pursued by application, I would have set aside these proceedings as prayed for by the defendants in their present application. The other relief sought in the action is against the tenant and his guarantor for the recovery of £372.500 mils rents in arrear and mesne profits at £2.- per day after 15.2.76. Is this second relief claimed in the action and the facts upon which it is based connected in any way with the provisions of the Rent Control Law of 1975? In my judgment, the answer is in the negative. The Law does not make provision for the recovery of any other amount, for example compensation for alleged damage caused to the leased premises. It dees not provide either for matters relating to the sufficiency or extent of a guarantee clause in a written agreement.

The writ of summons in the present case includes, therefore, a relief which should be sought by application and a relief which could be sought only by action. Yet, the two reliefs sought are closely connected. I could trace no authority to guide me whether, in the present circumstances, I ought to order the separation of the two reliefs. If I decide the issue in applicants’ favour, it would mean that the plaintiff landlord would be required to institute two parallel proceedings in the same Court; first, to institute proceedings by action for the recovery of rents and secondly, [*234] to institute proceedings by application for the recovery of possession of the shop on the ground that the same amount of rents lawfully due were not paid or offered by the tenant to whom a statutory notice under section l6(l)(a) of the Law was served. Such a course would be both inconvenient and unreasonable and would result in additional expenses and I do not think that such was the intention of the Supreme Court in making the aforesaid Rules.

The first objection of the applicants cannot, therefore, be sustained.

Second objection

The applicants allege that the action amounts to an abuse of the process of the Court and/or it is frivolous and vexatious in view of Action No. 2630/75 which is still pending before the Court.

The claim of the plaintiff in this action is on an indorsed writ of summons under Order 2, rule 6.

In Conquer v. Boot (1928) 2 K.B. 336 it was held that the statement of claim will be struck out and the action dismissed under the English 0.25, r.4, corresponding to our 0.27, r.3, if the matter be already res-judicata.

Copy of the indorsed statement of claim in action No. 2630/75 has been produced by consent and is before me marked Exh. A. It was filed on 10.6.1975 by the same plaintiff against the same defendants for the recovery of £187.500 mils rents for the period between 15.3.1975 till 14.6.1975. The action was filed before Law 36 of 1975 was enacted and there is no claim for recovery of possession.[*235] The action is still pending. The matter is not res judicata.

The applicants’ objection in this respect formulated by their counsel in his address in Court is that the plaintiff could have included in the first actions his claims put forward in the present action. Plaintiff's failure to do so and the filing of the second action, learned counsel argued, amounts to an abuse of the process of the Court by the plaintiff-respondent. He cited no authority in support of this allegation. Is this submission a valid one? If the answer is in the affirmative, the Court has, apart from any Rules, inherent jurisdiction to protect itself from such an abuse of its process by striking out and dismissing such claim. Yet, the answer must be in the negative.

The defendants further allege that, after this action was filed, they deposited in Court in the first action an amount exceeding the claim therein against them in order to cover also the rents claimed in the second action. I do not accept the submission that such subsequent payment by them of the rents renders the issue of the writ of summons in this action an abuse of the process of the Court, or the plaintiffs claim frivolous or vexatious.

The words "frivolous and vexatious action” used in our Order 27 rule 3 and the corresponding English Order 25 rule 4 have been construed to apply only to those pleadings which are so clearly frivolous that to put them forward would be an abuse of the process of the Court:- Whitworth v. Darbishire (68 L.T.216). Under this Rule the question whether the pleading is obviously frivolous and vexatious [*236] is concluded by what appears on the pleading itself. It is a discretionary power which is exercised with caution and whenever the claim as pleaded is beyond amendment and is obviously unsustainable. There is nothing at all in the indorsed statement of claim in this action to suggest that it is a frivolous and vexatious action. On the contrary, it raises fairly the cause or causes of action which are fit to be adjudicated upon.

The second objection of the applicants cannot, therefore, be sustained either.

Third objection

Applicant's third objection is for an alleged irregularity in the form of the indorsement of the writ in that, being an action for possession of immovable property, the value of the property sought to be recovered is not therein set out, contrary to Order 2, rule 10 of the Civil Procedure Rules which reads as follows:-

"In actions for recovery of possession of immovable property the indorsement on the writ shall set out the value of the property sought to be recovered, and in those for trespass the value of the part actually trespassed upon".

In the margin of this Rule reference is made to section 16(7) of the Courts of Justice Law, Cap. 11 of the 1949 Ed. of the Laws of Cyprus, taken from Law 38 of 1935, now repealed and substituted by section 22(4) of the Courts of Justice Law of 1960. [*237]

The aforesaid section 16 of Law 38 of 1935 dealt with the Civil Jurisdiction of District Courts in Cyprus.

Section 16(7) reads as follows:-

"For the purposes of this section, the amount in dispute or the value of the subject matter of an action shall be the amount actually in dispute or the value of the subject matter of an action shall be the amount or value actually in dispute between the parties thereto as disclosed at the settlement of issues or upon the pleadings, notwithstanding that the amount claimed or the alleged value of the subjectmatter in the action exceeds that amount or value".

The meaning and purpose of Order 2, rule 10 can be properly appreciated if it is read in conjunction with the section of

the Law hereinabove set out.

In view of the limited amount involved in the dispute which the judge of a District Court had jurisdiction to try, Order 2, rule 10 was made in order to:- (a) facilitate the Registrar for purposes of statistics; and (b) facilitate the Registrar to distribute the cases between the several judges having jurisdiction in each case to try the particular dispute. It has nothing to do with the cause of action as such.

The meaning of the words "In actions for recovery of possession of immovable property" in Order 2, r.10, can be found if they are read in the light of section 16(7) of [*238] Law

38 of 1935, enacted years before the enactment of the first Sent Restriction legislation in Cyprus, i.e. the Increase of Rent (Restriction) Law, 1942. In actions for possession of premises under any Rent Control Law, the value of the premises is not in dispute and the jurisdiction of the Court is not defined with reference to the value of the premises as such. Under the Sent Control Law of 1975, section 4(l) disputes on matters arising from the application of this Law are tried by those members of the District Court of each district who have specially been appointed by the Supreme Court, and the jurisdiction of such members of the District Court is not defined by the value of the dwelling house or shop.

For the above reasons, I think that the provisions of Order 2, rule 10 were never intended to apply to cases for the recovery of possession of premises under the Rent Control Law.

But even if the plaintiff had to comply with the aforesaid provision, his failure to do so does not render the proceedings void. I would have never made an order to set aside the proceedings on such ground alone and I would have directed and/or allowed compliance with Order 2, rule 10 by amendment thus curing the irregularity, in exercise of my powers under Order 64, rule 1 of the Civil Procedure Rules.

For the reasons hereinabove set out this application is dismissed. In view of the novelty of the issues therein raised I have decided to make no order as to costs in respect thereof.

Application dismissed.

No order as to costs.