Ajaib Singh J:

This is an appeal from the decision of the learned Magistrate ordering the appellant to give vacant possession of a two-storey shophouse on the ground that the appellant as the tenant of the respondent landlord had contravened the provisions of s. 16(1)(k) of the Control of Rent Act 1966. The respondent based his claim for possession of the premises on two grounds. First, that the appellant having sublet part of the premises received in respect of the subletting rents which including the apportioned rental or value of the part of the premises retained by the appellant exceeded in the aggregate by more than ten per centum the rent of the whole premises contrary to s. 16(1)(j) of the Control of Rent Act. Secondly, that the appellant committed a breach of the provisions of the building by-laws made under the Town Board Enactment (Cap. 137) by partitioning the front portion of the ground floor illegally and thereby exposed the respondent to a penalty or fine under the Enactment within the meaning of s. 16(1)(k) of the Control of Rent Act. However in the course of the hearing in the lower Court the respondent abandoned the first ground and proceeded to prove his case only in respect of the second ground. In her amended statement of defence the appellant admitted being the tenant of the respondent paying rent at the rate of $90 per month but denied that she was in breach of s. 16(1)(j) and (k) of the Control of Rent Act. With regard to s. 16(1)(k) of the Act she alleged that the partition was erected by her with the oral consent of the respondent.

In his evidence in the lower Court the respondent said that some time in February 1971 he went to the premises and saw that the appellant had partitioned the ground floor of the premises. He then instructed his solicitors to serve the appellant with a notice to quit which was done by letter dated 23 February 1971 and he also instructed his solicitors to lodge a complaint with the Town Council in respect of the unauthorised partition. In due course the Town Council prosecuted the appellant in the Magistrate's Court for having constructed a plywood partition on the premises in contravention of the building by-laws. The appellant pleaded guilty and she was fined $80. The respondent produced a certified true copy of the charge and the notes recorded by the learned Magistrate and he said that he had not given any consent for the erection of the partition in respect of which the appellant was fined. In cross-examination the respondent admitted that the Town Council took action against the appellant as a result of his complaint but no action was taken against him. He denied that he had agreed to the erection of the partition and denied that he had asked for an increase of rent from $90 to $160. That was the case for the respondent. The appellant chose not to offer any evidence and her Counsel Mr. AKJ D'Cruz elected to make a submission of no case to answer. After hearing the submissions of Counsel for the appellant and for the respondent the learned Magistrate reserved his judgment for about six weeks and then ordered the appellant to give vacant possession of the premises to the respondent.

On appeal before me Mr. D'Cruz repeated the submissions that he had made in the lower Court. First, that in order to succeed in his claim the respondent had to establish not only the likelihood of prosecution by the Town Council but also certainty of prosecution and conviction and that if the landlord himself initiated the prosecution he could not rely on the ground that the tenant had exposed him to conviction. In support of this proposition Mr. D'Cruz cited the case of Cheam See Loo Brothers V. Kong Yoon Choy & Anor. . Secondly, that the respondent had to prove that the appellant had knowingly contravened the building bylaws and thirdly, that the learned Magistrate had wrongly exercised his discretion in favour of the respondent under s. 16(1)(k) of the Control of Rent Act 1966. In