Court dismisses tenant's stay of possession order, ruling it can only be made simultaneously with the recovery order.

[*376] 1977 November 29

(BOYADJIS, S.D.J.)

IN THE DISTRICT COURT OF NICOSIA

Petros Chrysostomou,

Applicant,

and

Stavroulla Kyriacou,

Respondent.

(Application No. 174/77).

Landlord and tenant - Statutory tenancy - Recovery of possession - Order for - Stay of execution - Can only be made simultaneously with the order for recovery of possession - Section 16(2) of the Rent Control Law, 1975 (36/75) - Consent order for recovery of possession - Constitutes an estoppel - Can be set aside only by an action.

P. Solomonides, for Applicant-Tenant.

D. Mamantopoulos, for Respondent-Landlord.

RULING

The following ruling was delivered by:-

BOYADJIS, S.D.J.:- This is an application [*377] whereby the applicant-tenant, against whom an order for delivery of

possession of a dwelling house was made by the Court on 5th July, 1977, prays for an order of the Court staying execution of the said order for a period which the Court considers reasonable in the circumstances.

This application was filed on 3rd November, 1977, and, having been opposed by the respondent-landlord, was heard on 23rd November, 1977.

The application is stated to be based on:-

1. Section 5(a) of the Rent Control Law of 1975;

2. The Courts of Justice Law, No. 14/60; and,

3. The Civil Procedure Rules, 0.40, r.11.

Section 5(a) of the Rent Control Law No. 36 of 1975 deals with the power of the Court to review, vary or set aside an order fixing the rent in respect of premises covered by the provisions of the law. This section has nothing to do with the relief prayed by the applicant in the present application.

Elaborating further on the legal basis of the application, learned counsel for the applicant cited ss. 29(1)(γ) and 32(3) of the Courts of Justice Law No. 14/60. The former of these sections refers to the law which all Courts in the exercise of their civil or criminal jurisdiction shall apply and in particular, to the common law and. doctrines of equity. It can afford, therefore, no legal basis for this application. The latter section deals with the power of the Court to order a plaintiff to pay reasonable compensation to the defendant in cases [*378] where an interim order was issued at the instance of the former and it later transpires that such an interim order was made for inadequate reasons and the plaintiff’s action fails. I wonder how this legal provision may afford the necessary legal basis for the present application.

The last legal provision cited by counsel for the applicant is 0.40, r.11, of the Civil Procedure Rules, which provides that a party to an action against whom judgment has been given or an order made, may apply to the Court or a Judge for a stay of execution or other relief against such judgment upon the ground of the existence of facts which have arisen too late to be pleaded. In the present case there is no allegation that any facts have arisen too late to be pleaded. Therefore, this Rule has no application in the present case.

No doubt the Court has in a proper case power to suspend execution of a judgment at any time for such period and subject to terms or otherwise as it may seem just. Such power is vested in the Court by virtue of the provisions of s.47 of the Courts of Justice Law, No. 14/60. Relevant in this respect is also 0.34, r.5, of the Civil Procedure Rules.

In Georghios E. Glykys v. Ioannis Stylianou Toannides, 24 C.L.R. 220, it was made clear that s.53 of the Courts of Justice Law, 1953, (repealed and substituted by s.47 of Law 14/60) and the Civil Procedure Rules, 0.34, r.5, afford the Court power, if it thinks just, to postpone for a certain time the operation of an order for possession. The length of the time must, of course, depend [*379] on the circumstances of the particular case.

The Rent Control Law No. 36 of 1975,

s. 16(2), makes specific reference to the power of the Court to stay or suspend the execution of an order for possession.

At the same time it places certain limitations in the exercise thereof. It reads as follows:-

"Το Δικαστήριον,

εκδίδον απόφασιν ή διάταγμα δυνάμει του άρθρου τούτου, δύναται τηρουμένου του

όρου ότι ο ενοικιαστής θα πληρώση παν ποσόν το οποίον νομίμως οφείλεται ή

δυνατόν να καταστή οφειλόμενον υπ' αυτού, να εμποδίση ή να αναστείλη την

εκτέλεσιν της αποφάσεως ή του διατάγματος ή να αναβάλη την ημερομηνίαν κατοχής

διά τοιαύτην περίοδον μη υπερβαίνουσαν το εν έτος και υπό την επιφύλαξιν

τοιούτων όρων, εάν υπάρχουν, οίους το Δικαστήριον ήθελε θεωρήσει

καταλλήλους".

"The Court in granting a judgment or order under this section may subject to the payment by the tenant of any amount lawfully due or becoming due by him stay or suspend its execution or postpone the date of possession for such period not exceeding one year and subject to such conditions, if any, as the Court thinks fit".

Learned counsel for the respondent-landlord argued that the Court has no jurisdiction in this case to accede to the application because the order for possession was made on 5th July, 1977, by consent, and execution [*380] thereof was then suspended by consent until 30th November, 1977. He cited as authority for his proposition the case of Charis E. Georghallides v. Christofis Theodoulou ,1962. C.L.R. 115.

I am inclined to agree with counsel for the landlord on two grounds: Firstly, I find merit in his legal submission supported by the authority in the aforesaid Georghallides case where it was held that -

"A party is bound by a consent order which constitutes an estoppel and unless all the parties agree, a consent order, when entered, can only be set aside by a fresh action brought for that purpose".

As a general rule an order made by consent cannot be extended or altered without consent except in cases of mistake.

In Australian Automatic Weighing Machine Company v. Walter (1891 ) W.N. 170, the Court dealt with an application to enlarge the time limited for the defendant's compliance with an order dated the 7th day of August, 1891, whereby it was by consent agreed and ordered that the defendant should on or before the 31st day of August, 1891, transfer to the plaintiff-company or their nominee certain shares in the company. The order was passed and entered but it had not been complied with. North, J., refused to make any order on the motion, on the ground that the order made by consent could not be altered without consent. [*381]

Secondly, there is one more reason for which I believe I have no power to make the order applied for. As I have already stated, there is express provision in s.16(2) of Law 36/75 dealing with the power of the Court in this respect. This power is limited, in my opinion, in two respects:-

(i) As regards the length of time during which the Court may suspend execution of a possession order which should not exceed 12 months, and,

(ii) That such order suspending the execution should he made simultaneously with the order for possession.

The material words of the section in this respect are: "The Court in granting a judgment or order under this section may …….". Upon a literary interpretation of these words it is evident, in my opinion, that the intention of the legislature was to limit the power of the Court to stay execution of an order for possession only in cases where both orders are made contemporaneously.

This application must, therefore, be dismissed for want of jurisdiction. I have, nevertheless, decided to deal also with the merits of the application and make my findings thereon in case I am held to be wrong in my opinion on the issue of jurisdiction.

The facts on which the application is based appear in the affidavit sworn by the tenant in support of his application and consist mainly in his allegation that, despite [*382] the length of the period within which he was ordered to vacate the house which he uses as a residence and despite his repeated efforts to secure alternative accommodation, he was unable to secure any. According to a certificate which he produced in Court issued by Anthoupolis Company in Nicosia who, inter alia, are estate agents, there is great hope that by the end of January, 1978, one of the houses for which they act as representatives of the owner, at present in the possession of a refugee, will be vacated as the refugee-tenant has been promises a house in the refugee camp at Anthoupolis. If this is accomplished, the house shall be leased to the applicant.

There is no other evidence before me on the personal circumstances of the applicant. Nothing has been said about the family circumstances or financial circumstances of this tenant.

The landlord opposes the application very strongly and in her affidavit sworn in support of her opposition she puts forward the following circumstances:-

Following the invasion she remained enclaved in her village of Yialoussa in the Karpas area for about two years. She arrived to the south as a refugee in August, 1976, and pending vacation of her only house, the one subjectmatter of this application, by her tenant, she stayed at Larnaca as a guest in the house of her sister until the 7th November, 1977. She was given employment as a midwife in the Larnaca Government Hospital and was transferred to the Nicosia General Hospital on 7.11.77 when she moved to Nicosia and stays in an auxiliary building consisting of one [*383] room leased by her colleague, Katelou Antoniou, who is also a refuge, and that two other persons are also staying in that same room. She stays there as a guest on a very temporary basis.

Weighing the aforesaid circumstances of both parties and taking into consideration the length of time for which the order for possession was already stayed by consent of the parties, I have come to the conclusion that the merits of this case do not warrant the making of an order further suspending the execution of the possession order for any period of time. The applicant has failed to persuade me that there exist good grounds for exercising my discretion in his favour even if I had one.

For all the above reasons this application is dismissed. The applicant-tenant to pay £15.- costs of this application to the respondent.

Application dismissed.

Applicant - tenant to pay

£15.- costs.