JUDGMENT

Azmi CJ (Malaya):

This is an appeal against the judgement of Ismail Khan J who allowed the appeal against the judgement of the president of the sessions Court at Malacca.

The respondent was and still is owner of the premises known as No. 2 Wolferstan Road, Malacca, herein referred to as the said premises, and she brought a suit for the recovery of the said premises in the sessions Court against the tenant KA Hamid as the tenant and against the appellant as the sub-tenant.

The brief facts of the case would show that the respondent became the owner of the said premises in 1948 when the tenant had been a tenant for some years previously and had been carrying on, on the same premises the business of a restaurant under the name of "K. Abdul Hamid Restaurant".

In February 1961 the respondent's rent collector named Low Yew Hock, noticed the name of the restaurant had been changed to "Letchumi Vilas Restaurant", whereupon he informed the owner of it. The owner immediately instructed a solicitor to give notice in writing to the tenant terminating the tenancy on 30 April 1961. The notice was also served on the appellant as a person in possession, of the said premises.

Upon their refusal to vacate the respondent commenced this action on 30 May 1961 against both the tenant and the appellant on three grounds:-

(1) That neither the tenant nor any member of his family was personally in occupation of the premises or part thereof.

(2) That having sub-let the premises to the appellant the tenant was receiving in respect of such subletting rents which exceeded by more than 10% the rent of the whole premises.

(3) That the tenant was in breach of a prohibition in the tenancy agreement against subletting.

The tenant in his statement of defence stated that he was still the sole proprietor of the business known as K Abdul Hamid Restaurant and was still residing at the premises and also that he was entitled to remain as a statutory tenant and that the appellant was only a lessee of the said business but not of the premises under an agreement produced by him and marked Exh. P2, made between them on 12 October 1960. The prohibition against the subletting was denied.

Low Yew Hock, the rent collector, though in his evidence first stated that the tenant was not living on the premises, however, had to admit that he said so merely on information he received.

In his evidence, the tenant explained that he had merely subleased the business of the restaurant but not the premises to the appellant, as he had similarly previously done to two other persons in 1946 and 1958 respectively. The lease of the business was on each occasion, as in the present one for a period of five years. The lease to the person previous to the present appellant was however, prematurely terminated before the expiry of the period of five years. That explained why he was able to make the present lease to the appellant in 1960. In addition to the execution of Exh. D2 the tenant also executed a power of attorney Exh. D7 in favour of the appellant.

The tenant also maintained that he was staying in a room on the first floor of the premises all the time and that the business of the restaurant was being carried on on the ground floor. He also explained that the name "Letchumi Vilas Restaurant" was put up during the festival of the Hindu temple at Cheng in order to attract business. The name was subsequently removed after the service of the notice to quit had been served on the tenant and the appellant.

Both the tenant and the appellant also stated in their evidence that they also made an oral agreement to the effect that the tenant was to be allowed to retain a room on the first floor.

The learned president of the sessions Court dismissed the suit. He found that there was no evidence that the tenant or a member of his family was not in occupation of the said premises or any part thereof. He then went on to say that having arrived at the above stated finding (I quote):-

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