Spenser Wilkinson J:

This was a claim by a landlord for possession of premises on the ground that the tenant was in arrears of rent.

The defendant did not appear at the hearing but applied through his Counsel for an adjournment which was refused.Counsel for the defendant being then without instructions withdrew from the case, which was, therefore, virtually undefended.

The plaintiff gave evidence in support of his claim and at the conclusion of his evidence the learned Magistrate made an order as prayed against the defendant and all persons claiming through or under him with costs.

One KM Noordin, alleging himself to be a subtenant, applied to the Court for revision on the ground that he was a lawful sub-tenant and that in any event he had not been given an opportunity of being heard and that, therefore, the order made by the learned Magistrate should not have applied to himself and the other sub-tenants.Upon this application I decided to exercise my powers of revision under ss. 53 and 55 of the Courts Ordinance, 1948.

Mr. Hume who appeared on the revision on behalf of the plaintiff informed me that the order made in this case by the learned Magistrate was the usual form of order in these cases.If this be so I am inclined to think that it is a form of order which should be discontinued.In the first place persons claiming through the defendant are not before the Court and I see no reason to mention them in the judgment.Secondly, I am inclined to doubt whether sub-tenants who claim the protection of the Control of Rent Ordinance can strictly be said to claim through the chief tenant, because their claim really rests upon the provisions of s. 14 of the Control of Rent Ordinance which in certain circumstances make them statutory tenants of the landlord when an order has been made for recovery of possession as against the chief tenant.However this may be, I do not think that this form of order is a compliance with the mandatory provisions of sub-section (1) of s. 14 which reads as follows:

14.(1)No judgment or order for recovery of possession shall be enforced as against sub-tenants (if any) of the tenant of the premises where the tenant was not prohibited from sub-letting by the terms of his tenancy; and every such judgment or order shall declare whether it may be enforced as against such sub-tenants or not.

It appears that on 1 March 1950 a fresh tenancy was granted to the chief tenant at an increased rental and that this new tenancy included a condition against sub-letting premises without the consent of the landlord.It is alleged, however, that some of the subtenants were in occupation prior to the inception of this new tenancy, and according to the decision of Ng Eng Kang v. R Sitharam [1952] MLJ 155 in order to make the subletting unlawful the prohibition against sub-letting must have existed at the time of the sub-letting.

Moreover, in the judgment of the Court of Appeal in that case I find the following passage:

I think that the Court should not declare any judgment enforceable against subtenants unless it has reason to be satisfied that they are not entitled to protection. I do not see how any Court can be so satisfied without hearing them.

Following the decision in that case therefore I varied the order of the learned Magistrate by deleting therefrom the words:

and all persons claiming through or under them

and remitted the case to the Magistrate's Court of the sub-tenants to be beard upon the question of whether or not the judgment should be declared to be enforceable against them or not.

Order accordingly.