Rigby J:

This is an appeal from the judgment of Mr. BJ Jennings, the then President of the Sessions Court, Penang, granting the respondent, as chief tenant of the premises at No. 521, Penang Road, an Order for possession of that part of the premises sub-let to the appellant, as sub-tenant, on the ground that the appellant was more than 14 days in arrears with his rent. The learned President, however, in the exercise of his discretion under s. 12(2) of the Control of Rent Ordinance 1956, postponed the date of possession for three months from the 26 March 1958, the date of his decision, provided the tenant paid the arrears of rent and the current rent. It is to be observed that that is a postponement of the date of possession for three months, subject to the fulfilment of certain conditions and not a suspension of the Order itself for as long as the current monthly rent and the rent in arrears is paid.

There is a separate appeal - which, for the purpose of convenience, I propose to refer to as a cross-appeal - by the respondent against that part of the Order on the ground that the learned President wrongly exercised his discretion in favour of the appellant by postponing the date of possession for three months. Since the period of three months' postponement had already expired before the cross-appeal was lodged, it is a little difficult to appreciate the object of the cross-appeal.

The appellant's main ground of appeal - and the point was not taken at all before the learned President - is based on the contention that the Court below had no jurisdiction to make the Order for possession asked for by the respondent as the appellant was not in arrears with his rent at the date of the action or at any time thereafter and the action was, in fact, not an action to recover arrears of rent at all. This argument is based upon a consideration of s. 12(1)(a) of the Ordinance and a comparison of that section with its counterpart, s. 13(1)(a) in the repealed Control of Rent Ordinance 1948. Section 13(1)(a) of the 1948 Ordinance enacted:

13. (1) No order or judgment for the recovery of possession of any premises comprised in a tenancy shall be made or given except in the following cases, namely -

(a) where, at the date of the service of the notice determining the tenancy given by the landlord, rent lawfully due was in arrears for fourteen days or upwards;

Provided that rent shall not be deemed to be in arrear if the tenant proves that it was tendered before such date;

Section 12(1) of the present Ordinance is identical with the repealed s. 13(1), but para. (a) differs in the following respect:

(a) where rent lawfully due has been in arrear for fourteen days or upwards:

Provided that rent shall not be deemed to be in arrear if the tenant proves that it was tendered before such date;

The proviso to para. (a) is identically the same as the proviso to para. (a) of the repealed Ordinance.

It is apparent, therefore, that under the repealed Ordinance the relevant date for determining whether the rent was 14 days or upwards in arrear was the date of service of the notice to quit. In the absence of those words in the present Ordinance what is the relevant date under the present Ordinance? Mr. Lim Cheng Ean, for the appellant, submitted that the crucial date for considering whether or not the tenant was in arrears with his rent for 14 days or upwards was the date of the institution of the proceedings. He further submitted that this was in accordance with English law which provides that a Court shall have power to make or give an Order or judgment for the recovery of possession of any dwelling house to which the Rent Restriction Acts apply "if any rent lawfully due from the tenant has not been paid." (See RE Megarry's The Rent Acts, 8th Edn., p. 570). In support of his argument Mr. Lim Cheng Ean referred to the case of Bird v. Hildage [1948] 1 KB 91. That case is undoubtedly clear authority for the proposition that under the relevant E