Buttrose J:

This is an action to recover possession of demised premises. The premises in question are to the right and rear of the ground floor of No. 19 Paya Lebar Road and were let by the plaintiff to the defendant at a monthly rental of $4.

It was not in dispute that the premises in question were 'premises' within the meaning of the Control of Rent Ordinance (Cap. 242).

The plaintiff's case was that by a document in writing dated 1 September 1963 the defendant agreed to vacate the premises within three months from the date thereof and was paid $300 by the plaintiff, receipt of which sum the plaintiff alleged was acknowledged by the defendant.

The plaintiff's contention was that the defendant had thereby terminated the tenancy with effect from 30 December 1963. The defendant refused to vacate on that date and still remains in occupation of the premises. He denied signing any agreement to vacate or receiving the sum of $300.

The agreement to vacate is in the following terms:

Being compelled by circumstances, I, Wee Hai Kok - (the plaintiff) - hereby requests the various occupiers to move out within three months from today. Those who are willing please sign their names.

(1)Mr. Tan Ah Wee - (the defendant) - agrees and signs Tan Cheng Wee received cash three hundred dollars.

(2)Mr. Ko Ya agrees and signs (Signature) $300.

(3)Mr. Tan Ah Kim agrees and signs.

(4)Mr. Peh agrees and signs.

(5)Mr. Chin Kee Hia agrees and signs.

Dated 1 September 1963.

With respect from

Brother Wee Hai Kok.

The learned district Judge found as a fact that the defendant signed this document and did receive the sum of $300.

Had I been trying the case it is conceivable that I might have arrived at a different conclusion to that of the learned district Judge on this aspect of the case. Be that as it may there was evidence, if accepted by him, which would justify his finding and I am not prepared to disturb it.

The substantial issue argued on the appeal was as to whether the learned district Judge was entitled to make an order for the recovery of possession.

Under the Control of Rent Ordinance an order or judgment for possession shall only be made or given in certain specific instances set out in s. 15 of the Ordinance.

For our purposes the relevant sub-section is s. 15(1)(f), namely, 'where the tenancy has been determined by notice to quit given by the tenant'.

The short point for decision is whether the agreement to vacate which I have set out above is a notice to quit given by the tenant within the meaning of s. 15(1)(f).

In my view it is not a notice to quit at all but merely an agreement between the parties that the tenant would give up possession some time within three months from 1 September 1963. A notice to quit and an agreement to surrender or determine a tenancy are essentially different in their nature.

An agreement is the result of the consent of the parties whereas a notice to quit is altogether different. The essence of a notice to quit by the tenant is to determine the tenancy whether the landlord likes it or not. See De Vries v. Sparks [1927] 137 LTR 441.

The plaintiff therefore was not, in my view, entitled to an order for the recovery of possession of the premises.

The case of Rajbenbach v. Mamon [1955] 1 All ER 12 is merely authority for saying that an agreement such as the one in question is not against public policy nor vitiated by the control of rent legislation although it might not legally be possible to eject the tenant owing to the operation of the Control of Rent Ordinance.

Barton v. Fincham [1921] 2 KB 291 merely gives effect to the limitation on the jurisdiction of the Court to make an order for possession which was imposed by the rent restriction legislation.

Brown v. Draper [1944] 1 All ER 246 is authority for the proposition that the only ways in which a tenant can be deprived of the protection of the Rent Acts are by giving up possession in which case no order for recovery of possession ag