J.p. Mahuvawalla v B.r. Iranee

Judgment Cited authorities (1) Cited in Precedent Map Related
Judgment Date28 January 1947
Judgement NumberCACV2/1946
Year1947
CourtCourt of Appeal (Hong Kong)
CACV000002A/1946 J.P. MAHUVAWALLA v. B.R. IRANEE

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

APPEAL No. 2 of 1946

(Tenancy Tribunal Appeal No.41/46)

BETWEEN
J.P. Mahuvawalla Appellant
(Opponent)

AND
B.R. Iranee Respondent
(Applicant)

Coram: Blackall C.J. & Gould J.

Date of Judgment: 28 January 1947

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JUDGMENT

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1. The facts in this case are in brief, that the appellant was an employee of the respondent from October, 1930, under an agreement for service dated the 23rd of that month, which agreement was replaced by a further agreement dated the 29th August, 1940. The last mentioned agreement was for a period of 5 years but apparently the employment continued until 30th April, 1946, and it has not been contended that the terms of the agreement ceased to apply. The earlier agreement made no reference to accomodation for the appellant, but the second agreement provided (inter alia) for remuneration which, "shall include all personal expenses of the employee excluding lodging which will be provided by the firm". The difference between the two agreements is relied upon by the appellant as indicating that occupation of the particular premises provided was not necessary for the purpose of the employment. The respondent, pursuant to the agreement, provided the appellant with a flat and upon the termination of the employment the appellant failed to vacate the same. Application was then made by the respondent to a Tenancy Tribunal for an order for appellant's eviction which the Tribunal granted . This decision was upheld on appeal and the present appeal to the Full Court was thereupon brought by the appellant.

2. The order for eviction is based on Para J.(a) of Article 5 of the Landlord and Tenant Proclamation, No.15 of 1945, which gives power to evict any person who, in the opinion of the Tribunal, does not bona-fide claim possession under a landlord or his predecessor in title. As this involves an enquiry into the existance of the relationship of landlord and tenant between respondent and appellant during the employment of the latter, it will be convenient first to examine the contention of the respondent that appellant was never more than a mere licensee. This is based on the use, in the agreement, of the word "lodging". It is argued that the obligations of the respondent would have been fulfilled by the provision of a mere room in a boarding house or even a bed space; that the "lodging" could have been changed from time to time at the will of the respondent. It is, I think, probable that the respondent could, within the terms of the agreement, have provided lodging which would have been no more than a licence, but what it is necessary to look at is what he actually did do. If he interpreted his obligations more favourably towards the appellant than he need have done, that does not alter the fact that he provided premises in the nature of a flat, and it has not been contended, on the part of the respondent, that exclusive possession was not given. As the existance of exclusive possession is the general and acknowledged test applied to distinguish a lease or tenancy from a licence, it follows that (so far at least as this distinction is concerned) a tenancy of some sort did exist. The fact that it might have been terminated and...

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