Court dismisses possession claim in writ of summons, requiring separate originating application under Rent Control Rules.

[*106] 1977 April 5

(HJICONSTANTINOU, S.D.J.)

IN THE DISTRICT COURT OF NICOSIA

Maro P. Panayidou,

Plaintiff-Respondent,

v.

N. Papadopoullou (Heirs),

Defendants-Applicants.

(Action No. 5912/76).

Landlord and tenant - Practice - Statutory tenancy - Recovery of possession - Section l6(l)(a) of the Rent Control Law, 1975 (Law 36/75) - Should be pursued by means and in the manner provided by rule 3 of the Rent Control Rules, 1975 - And it cannot be pursued together with a claim for arrears of rent and mesne profits by means of a writ of summons.

G. Mitsides, for the Applicants.

Ant. Georghiades, for the Respondent.

DECISION

The following decision was delivered by:-

HJICONSTANTINOU, S.D.J.: By a writ of summons, [*107] specially endorsed under 0.2, r. 6 and filed on 22.12.76, the plaintiff claims an order for possession of her shops, arrears of rent and mesne profits.

The writ was served on the defendants on 10.1.77, and before entering appearance or taking any other step, the defendants filed the present application on 15.1 .77.

The application is based on 0.16, r.9, 0.64, r.1 and 0. 48, r.2 of the Civil Procedure Rules, and on Rule 3 of the Rent Control Rules of 1975 as well as on section 25 of the Rent Control Law of 1975 (Law No.36/75). By this application the Defendants

- Applicants seek an order of the court setting aside the writ and/or the service of the writ as void or irregular oh the ground that the procedure and form provided by Rule 3 as aforesaid has not been followed.

It is the contention of applicants’ counsel that the writ of summons amounts to a nullity of proceedings or is void or irregular in so far as it contains claim for an order for possession which cannot be pursued by a writ of summons but only by means of an originating application as provided by Rule 3 of the said Rules.

The respondent's counsel agreed that the claim for an order for possession, being sought under the provisions of section l6(l)(a) of Law 36/75, should be pursued by an originating application, and that the claims for [*108] arrears of rent and mesne profits should be pursued by a writ of summons, The counsel argued, however, that because the claim for an order for possession rests on the proof of arrears of rent, and common issues are, thus, involved, there should be only one trial by one Court, thus avoiding the possibility of having two, perhaps different decisions by different courts on common, issues as between the same parties.

Before proceeding with the consideration of the contentions made by the learned counsel, I consider it useful to repeat here the provisions of the Rules on which this application is based:

0.48, r.2 refers to the manner in which the application can be made. This application complies therewith.

0. 16, r.9 provides:

"A defendant before appearing shall be at liberty, without obtaining an order to enter or entering a conditional appearance, to take out a summons to set aside the service upon him of the writ or of notice of the writ, or to discharge the order authorizing such service."

It is true that the defendants in this case did take out the present summons before entering appearance to the writ of summons served upon them. I don't, however, think that there has been submitted any good ground on which an order setting aside the service upon [*109] them can be supported.

0.64, r. 1 provides:

"Non - compliance with any of these rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or Judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge shall think fit."

It is useful to add here that identical to the above are the provisions of Rule 14. of the Rent Control Rules of 1975 made pursuant to the provisions of section 25 of Law 36/75.

The effect of the above Rules will be considered at some later stage.

In any case it may here conveniently be added that the applicants filed their application both within a reasonable time after service of the writ on them and had taken no fresh step after knowledge of the irregularity, thus complying with the provisions of 0.64, r.2 which reads:-

"No application to set aside any proceedings for irregularity shall be allowed unless made within a reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregularity." [*110]

Rule 3 of the Rent Control Rules of 1975 made by the Supreme Court pursuant to the provisions of section 25 of the Rent Control Law of 1975 (Law No. 36/75) reads as follows:

###

An English translation of the above Rule maybe 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 containing clear particulars of the relief sought and of the facts upon which the applicant intends to rely”.

Forms No. 1 and No. 2 are set out in the Rules and form part and parcel of such Rules.

I shall now proceed to consider the submission that these proceedings must be held to be null or void or irregular so as to be set aside.

In the case of Lloyd v. Great Western Dairies Co. [*111] (1907) 2 K.B. 727, C.A., which was a case of joinder of other causes of action with a claim for recovery of land, it was held not to be a case of nullity.

In the case of Smurthwaite v. Hannay (1894) A.C. 494, which was also a case of misjoinder of causes of action contrary to the rules then in force, the House of Lords held that there was a non-compliance with the rules and dealt with the proceedings by allowing the plaintiffs to amend and to elect on which claim they could proceed. Clearly the proceedings were not held to be a nullity, because a nullity cannot be amended.

In the case of Finnegan v. Cementation Co. Ltd., (1953) 1 All E.R. 1130 at p. 1136 Singleton, L.J. said:-

"I would add that these technicalities are a blot on the administration of the Law, and everyone, except the successful party, dislikes them. They decrease in numbers as the years go on, and I wish that I could see a way round this one".

In the case of Pontin and Another v. Wood (1962) 1 All E.R. 294, Holroyd Pearce, L.J. , considering an appeal from an order setting aside the writ and the subsequent proceedings on the ground that the indorsement of the writ did not state the cause of action with sufficient particularity, at p.

297 said:-

"The problem turns on the answer to these questions: First, was the writ a nullity which was incurable, or was it a defective [*112] writ whose defect could he cured by the statement of claim? Secondly, if it was merely defective, was it right to set aside the writ itself and thereby prevent the plaintiffs from curing its defect by delivering a statement of claim? Thirdly, has the defendant’s delay in talking out the summons to set aside barred him from taking objection to the defective writ?".

Then the provisions of R.S.C., Order 70, r.1 and r.2 are stated. It should, here, be added that the provisions of the above two rules of the English Order 70 are exactly in identical terms with out 0.64, r.1 and r.2, which have been repeated earlier.

And, in the same page Holroyd Pearce, L.J., continues: -

"The provisions of r.1 date from 1875, R.S.C., Order 59, which was couched in terms substantially similar, was one of the original Rules of the Supreme Court. In the Rules of 1883 it became Order

70. In those days the court was deliberately freeing itself from the technicalities which had marred the procedure in earlier times - such technicalities as are to be found in Tidd’s Practice of the Courts of King's Bench and Common Pleas. Mo doubt it was in reliance on R.S.C., Order 70 that Bowen, L.J., expressed himself in 1887 in words which are quoted by Wallace, J. of the Supreme Court of New South Wales in an article in the current number of the [*113] Australian Law Journal, Vol. 35, part 4. Bowen, L.J., gave the following assurance to his American colleagues:”

“It may be asserted without fear of contradiction that it is not possible in the year 1887 for an honest litigant in Her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation'.

These words are cited from Chief Justice Vanderbilt’s Book, Improving The Administration Of Justice.

"The order gives power to amend and provides that non-compliance with the rules shall not render the proceedings void unless the court directs. The tenor of the order shows that it is directed to the curing of that which is capable of cure, to saving rather than destroying. I do not take the view that its tenor should be reversed merely because the period of limitations has expired. The courts will not, except in special circumstances, allow amendments that will take away a defence that has arisen under the statute (Weldon v. Neal (1887); 19 Q.B.D. at p.395), per Lord Esher, M.R.). They will not

add a new cause of action or allow a plaintiff to substitute a fresh case……………………………………………

but I do not accept that they should therefore refuse any normal aid which would be

given as of course under R.S.C., Order 70, if no question of limitation [*114] arose - aid which, is directed not to

setting up a new cause of action or a new case, but to regularising the procedure of a known genuine case commenced before the time limit expired but containing technical defects. That is a matter to which (Lord Esher,M.R. , certainly was not directing himself, and it does not come within the ambit of his general rule”.

And at p. 298 Holroyd Pearce, L.J., continues: -

"It is difficult to define precisely the difference between that which is a nullity and cannot, therefore,

be cured by any amendment or subsequent proceedings, and that which is defective and can be cured. Nevertheless, it is

clear that this writ was not a nullity, … ".

In the case of Re Pritchard (deceased) (1963) 1 All E.R. 873, Lord Denning, M.R., delivering his dissenting judgment, and speaking of the effect of Order 70, r.1 at pp.877-878 said:-

"Surely under the saving power of this rule, this originating summons could be removed from the district registry to London. I could understand that if the plaintiff’s solicitor had failed to comply with the statute (as distinct from the rules), then it might have been difficult to put it right. He complied, however, with every word of the statute the only mistake that the solicitor made was to overlook an obscure rule in the ’White Book’ for which he might well be excused ... I am sure that most of us would have done so too. We all know that on the technicalities of procedure such as these, we rely on the [*115] officers of the court to keep us straight ... When an officer of the court itself makes a mistake, the consequences should not he visited on the unfortunate litigant, hut it should be remedied by the court itself".

And at p. 879 he continued: -

"The only true cases of nullity that I have found are when a sole plaintiff or a sole defendant is dead, (see Tetlow v. Orela Ltd., (1920) All E.R. 419), or non-existent (see Lazard Brothers & Go. v. Midland Bank Ltd., (1932) All E.R. 571 at p.576); and I would like to see the word ’nullity' confined to those cases in future.

"Of course I do not loose sight of the fact that in Re Pritchard above it was by majority held, Lord Denning, M.R. dissenting, that that was another case of nullity, there having been no commencement of proceedings because the originating summons had not been issued out of the Central Office as required by R.S.C. , Order 54, r.4B, which was mandatory".

It would be useful to note, here, that our Rule 3 does not appear to be so mandatory in view also of the wording and the provisions of Rule 14 of the same Rules.

It would, further, be useful to note in the case of Harkness v. Bell's Asbestos and Engineering Ltd., (1966) 3 All E.R. 843, at p. 845 Lord Denning, M.R. said:-[*116]

"The new rule, R.S.C., Order 2, r. 1 (1) was made so as to

get over the decision of Re Pritchard (deed) (1963) 1 All E.R. 873 and it gives the court ample power to correct the mistake and put things

right"·

After careful consideration of all the aforesaid I have come to the decision that the present proceedings are neither a nullity nor void, but only irregular because the provisions of Rule 3 of the Rent Control Rules of 1975 have not been complied with in so far as the claim for an order for possession is concerned.

Now, the question that arises is this. Is this irregularity curable and in what way?

Under section 4(1) of Law 36/75 a new Court is established in order to hear and determine on any dispute arising out of the application of the same Law. It is to be reminded that the relief for an order for possession is sought under the provisions of section l6(l)(a) of the Law, whereas the reliefs, for arrears of rent and mesne profits admittedly fall outside the ambit of this Law. Hence the Court that has jurisdiction to hear and determine this case as far as the claim for an order for possession is concerned is a Court established under section 4.(1) of Law 36/75 and no other Court.

The present Court is a Court established under section 4(1) of Law 36/75 and, therefore, it has jurisdiction to hear and determine the said issue. But this does[*117] not, necessarily, take away any other jurisdiction that this Court has. It cannot be said that, because this Court has jurisdiction to try cases falling within the ambit of Law 36/75, it has no jurisdiction to try any other cases. It should not be overlooked that the new Court established by section 4(1 ) of Law 36/75 is also a member of a District Court.

However, more important is sub-section 2 of section 4 of Law 36/75 which provides that a Court established under section 4(l) of the same Law is not bound by the rules of evidence. No importance would have been attached to this requirement if all the disputes fall either within or outside the ambit of Law 36/75 The difficulty arises when one or more of the disputes fall within the ambit of Law 36/75, when the Court will not be bound by the Rules of Evidence when hearing and determining on such disputes, and when some other disputes fall outside the ambit of Law 36/75, when the Court, in hearing and determining on them, will be bound by the Rules of Evidence.

Consequently it is absolutely impossible for this Court to hear and determine on disputes some of which fall within and some fall outside the ambit of the Law 36/75.

It is my opinion that disputes arising out of the application of Law 36/75 should be pursued by means of an originating application as provided by Rule 3[*118] aforesaid. The procedure prescribed by this Rule has been made by the Supreme Court in exercise of the powers vested in it by section 25 of the Rent Control Law of 1975 (Law No. 36/75). The Supreme Court must have intended, when making this Rule, to simplify and shorten the procedure as compared to that followed in ordinary process of other cases, and in this way expedite the determination of disputes arising out of a Law, enacted apparently to remedy some of the repercussions of the catastrophic events of 1974. Certainly the simplification of the procedure and the relaxation of the Rules of Evidence must be in line with the spirit of the Legislature and the basic aims of the Law. I may also remind that a "procedure by originating summons is more economica generally speaking than the procedure by writ" (extract from the Final Report of the Committee on Supreme Court Practice and Procedure (1953) (Cmd. 8878), paras 84 et seq. (Chancery Division) see: Halsbury’s Laws of England, 3rd ed. Vol. 30, p. 303, note p.)

In answer to the contention of the learned counsel for the respondent, in addition to what I have decided above, I would cite a passage from the judgment of Lord Denning, M.R, in the case of Payne v. Coenen (1974) 2 All E.R. 1109 at p. 1112:

"I think the time has come to adopt a new approach. There is no need to order a new rule. The practice can be altered without it. The courts already [*119] have power to do it. R.S.L. Ord. 33, r. 4(2) says:

"In any (action begun by writ) different questions or issues may be ordered to be tried at different laces or by different modes of trial and one or more questions or issues may be ordered to be tried before the others’ In future the courts should be more ready to grant separate trials than they used to do. The normal practice should still be that liability and damages should be tried together. But the courts should be ready to order separate trials whenever it is just and convenient to do so."

I would further remind of the provisions of Ord. 13, r. 1 of our Civil Procedure Rules according to which " .... if it appear to the Court or a judge that any such causes of action cannot be conveniently tried or disposed of together, the Court or judge may order separate trials of any such causes of action to be had, or may make such other order as may be necessary or expedient for the separate disposal thereof."

Therefore, it becomes quite clear that the dispute based on section l6(l)(a) of Law 36/75 cannot be joined with the other reliefs claimed in the writ of summons, and it should be pursued by means and in the manner of Rule 3.Hence I make an order dismissing the claim for an order for possession and directing that such claim, if insisted upon by the plaintiff, be pursued by means of an originating summons as provided by Rule 3. [*120]

In view of the practice that most advocates follow in similar cases and the novelty of the issue of the application, I make no order for costs in respect of the application made by the Defendants.

Claim for order for possession

dismissed. No order as to costs.