clr/1962/1962_1_289.pdf

(61), section 3—The amending Law No. 39 of 1961—'Pending actions'—Meaning—Section 20 of Law \7\6\ (supra)—No order for possessionof business premises In 'controlled areas' can be made otherwise than subject to the qualifications of the statute— Notwithstanding that an order for possession could have been made independently thereof at some earlier stage in the action even after the enactment of Law No. I7J6I (supra)—Sections 10 and 20 of that Law. The Rent Control (Business Premises) Law, 1961,(Law No. 17/61) was published in the Official Gazette and came into - force on the 28th April,

1. The landlord's action for possession was filed on the 26th May, 1961; and it was basedon the ground that the tenancy under which the appellants- defendants occupied the premises in question, was terminated ' on the 10th May,
2. · Section3of the Law,in its original form, made the provisions of the statute applicable to business premises found, within such'controlled areas'asmight bespecified fnOrders or Public Instruments made and published by the Council of Ministers from time to time, in the public interest. And section 21 provided that until the publication of Ministerial Orders specifying the 'controlled areas' under section 3, but in no case for a period exceeding one month-from-ilic publication of the Law (28/4/61), no Court would have the power to make an ejectment order affecting business premises in the town areas specified in the section. ' No Ministerial Orders having been madeor published under section 3, until the 17th of October, 1961, the Legislature 289 1962 N o v 20 1 GtORi.HHrt C'HAK Ί Α Μ Β Ο Ι >HI A 2 MAIMUJI Ι Λ LlASMill KAKASAVVA I N I N A SIMAN took the matter back in their hands by enacting and publishing anamending statute.Law No 39 of
3. dated the 17thOcto­ ber, 1901, wheieby section 3of the original Law was substitut­ ed by a section specifying the protected or-'controlled areas' and section 21 was abolished altogether On the other hand, section 10of Law 17/61 (supra) provides that no ejectment order can be made in respect of business premises fn 'controlled areas' otherwise than subject to the qualifications and requirements of the statute. And by sec­ tion 20,the said statutegoverns the position not only in actions filed after its enactment but also in 'pending actions' at that time. The landlord, i.e., the respondent-plaintiff, filed an action for possession of his shop situated in Famagusta on the 26th May 1961, based on the ground that the tenancy under which the appellant-defendantoccupied the premises was terminated on the IOth May,
4. There was no question that the pre­ mises arc business premises within a 'controlled area', as de­ fined, specified and created on the 17thOctober 1961 by Law No. 39/61 (supra). In these circumstances, the District Court took the view that: "as there was no law In force on the IOth May,1961 when the lease was already duly terminated, the defendants cannot be considered as being statutory tenants as from the IOth May. The amendment of Law 17/61cannot be given a retrospective effect and the declarationof Famagusta Municipal limits as a 'controlled area', came Into force on the 17th October,
5. when Law 39/61 was published in the Official Gazette". Upon this view of the law, the District Court held that the premises were beyond the protection of the enact­ ments in question, and made on the 3rd May, 1962, theeject­ ment order attacked by this appeal. It was contended on behalf of the appellant-defendant, that since the action fs 'pending action'within section20ofthe RentControl (Business Premises) Law (supra) no such order for ejectment could be made by the District Court. The High Court, allowing the appeal. Held: ( I ) There can be no doubt that this order could not be made during the one month's period from the 28th April
6. as the premises came clearly within section 21 of the original statute, published on that date. And it would 290 seemequallyclearthat therewasnothingto preventthe making of the ejectment order after expiry of that period, and until the publication of the amending law (No. 39 of 1961) on the 17th October
7. But as from that date, the Law enacted and published in April, stood as amended ; and.section 3 of the amended statute clearly,covers the premises In question. 1962 Nov. 20
8. GEORGHIOS CHAR. TAMBOURLA
9. MAROULLA I IASSOU KAKASAVVA v.

(2)When making the ejectment order on the 3rd May, 1962, the Court had to apply the statute as It stood at that time, including section 10thereof.which governs the position, not only in actions filed after the publication of the Law on the 28th April, 1961.but also In actions 'pending* at that time, as expressly provided In section 20. (Georgallidesv. Constantlnldes, reported in this Volume p. 99, ante,considered).

(3)As to costs, we take the view that as the.respondent was within her rights in filing and prosecuting the action until the 17th October, 1961,she fs entitled to her costs in the District Court up to that date inclusive. Applying section 20 to the costs incurred thereafter, including costs in the appeal, we direct that in the circumstances of this caseeach party should bear its own costs. Appeal allowed. Cases referred to : Georgallidesv. Constantmides; reported in this Volume, p. 99, ante., Appeal. Appeal against the judgment o f the District C o u r t ' o f Famagusta (Attalides, P.D.C.) dated the 3rd M a y , 1962 (Action No.1041/61) whereby the" defendant was ordered to evacuate and deliver up free possession to plaintiff o f the premises known as " A k t e o n " situated at Varosha and t o pay lo the plaintiff the sum o f C42.— per month as mesne profits as from 10.5.61 (ill evacuation and delivery o f possession plus the costs of the action. L.N: Ch-riilcs with .I..V. Atitoniacks for the appellant. A. Ch. Pottyowos with Y. Hovnutjis for the respondent. The judgment o f the Court was delivered by :— [.·' · ' ' 291 NINA SIMAN 1962 N o v . 20 I. iifcORC.IIHK CHAR. Γ-AMHMURI Λ 1 MAROUIΙ Λ f.lASMHI Κ VRASAVVA Γ. N l N \ SlM,\S. ' VASSII.IAOI.S. J. ; Learned counsel on both sides agree that the fate o f this appeal turns on whether the provisions o f the Rent Control (Business Premises) Law, No. 17o f

1. apply to this case or not. M r . Pouyquros for the respondentlandlord epηceded that i f his client's action is a "pending a c t i o n " within section 20 o f the Law.theappeal must succeed; and boll) thejudgment o f the District Court and theejectment order therein, must be set aside. The Rent C o n t r o l (Business Premises) Law, 1961,( L a w No. 17/61) was published in the Official Gazette and came into force on the 28th A p r i l ,
2. The landlord's action for possession was filed o n the 26th May, 1961 ; andit was based on the ground that the tenancy under which the appellantsdefendants occupied the premises in question, was terminated on the 10th M a y ,
3. Section 3 o f the Law, in its original f o r m , made the pro­ visions o f the statute applicable to business premises found within such 'controlled areas' as might be specified in Orders or Public Instruments made and published by the Council o f Ministers from time to time, in the public interest. A n d section 21 provided that until the publication o f Ministerial Orders specifying the 'controlled areas' under section 3, but in no case for a period exceeding one month f r o m the publication o f the Law (28/4/61) no Court would have the power t o make an ejectment order affecting business premises in the town areas specified in the section. N o Ministerial Orders having been made or published under sect. 3, until the I7th o f October, 1961,the Legislature took thematter back in their hands by enacting and publishing an amending statute. Law N o . 39 o f 1961, whereby section 3 o f the original Law was substituted by a section specifying the protected or 'controlled areas* and sect. 21 was abolished altogether. The business premises constituting the s u b j e c t - m a t t e r o f this action is situated in the town o f Famagusta and is admittedly covered by the abolished section 21,and by section 3 in its present f o r m . In these circumstances, the District Court look the view that "as (here was no law in force onthe 10th May, 1961 when the lease was already duly terminated, the defen­ dants cannot be considered as being statutory tenants 292 as from the 10th May. The amendment «f Law 17/61 (the District Court say in their judgment at ρ.14,Ε of the record) cannot be given a retrospective effect and the declaration of Famagusta Municipal limits as a control­ led area came into force on the 17th October, 1961, when Law 39/61 was published in the Official Gazette". Upon this view of the law,- the District Court held that the premises-were beyond the protection of the .enactmentsin question, and made on the 3rd May, 1962, theejectment order attacked by this appeal. Therecan be no doubt that this order could not be made during the one month's period from the 28th April, 1961, as the premises came clearly within section 21 of the original statute, published on that date. And it would seem equally clear that there was nothing to prevent the making of the ejectment order after expiry of that period, and.until the publication of the amending Law (No. 39 of 1961) on the 17th October,
4. But as from that date, the Law enacted and published in April, stood as amended ; and sect. 3 of the amended statute, clearly covers the premises in question. When making the ejectment order on the 3rd May, 1962, the Court had to apply the statute as it stood at that time, including section 10 thereof which governs the position, not only in actions filed after the publication of the Law on the 28th April, 1961, but also in actions 'pending' at that time, as expressly provided in sect.
5. The effect of this section was considered in Georgallides v. Constantinides (Civil Appeal 4362 decided in June 1962) where the District Court of Nicosia took the view that an ejectment order contained in a judgment for possession, obtained before the enactment of the Rent Control (Business Premises) Law, (17 of 1961) but still unexecuted, was a 'pen­ ding action' within sect. 20, andcould not be enforced after publication of the statute in question for the ejectment of the defendant from a business premises in a protected area. This Coiirl, allowing the landlord's- appeal, held that the provisions of the statute in question, "are not applicable to actions for the recoveiy of possession vvheie theCourt had already ad­ judicated upon the tights of the parlies and made an ejecinie it order or an order for possession, prior to the enactment of the statute"'.' 293 1962 Nov. 20
6. GEOROHI CHAR. TAMBOURI.*
7. MAROIH ι > I.IASSnw KARASAV\ ν ININA S I M · · . VassiliaJc ' 1962 Nov. 20 t. GtORt.HIOS CHAR TAMUOURI A
8. MAROIII t \ LlAVJHI KARANAVV\ NINA SIMAN Vussiliadc·, J. In thiscase thelandlord's action wasfiledafter thepublication ofthe Lawin April, 1961; andeven ifone wereto take theview adopted bytheDistrict Court, (hatthe premises did notcome within theprovisions of the statute untilthe publication of the amending Law in October, 1961,wc arc unanimously of the opinion that reading, as we mustdo, sect. 20aspart ofthestatute, enacted for thepurposes clearly stated therein, wemust hold that the ejectment order made on the3rd May,1962,wasmade ina'pending action' within sect. 20; anditcould only bemade subject tothe conditions and requirements of the protecting statute. Upon this view of the law,the appeal .must succeed ; and judgment be entered forthe appellants-defendants, setting aside the ejectment order made against them, aswell asthe consequential order for mesne profits. The rights ofthepartiesin respect of the premisesinquestion,are tobesought within thestatute. Astocosts, wetake theview that as therespondentwas within her rights in filing and-prosecuting theaction until the 17thOctober, 1961,sheis entitled to her costs inthe District Court upto that date inclusive. Applying sect.20 to thecosts incurred thereafter, including costs intheappeal, we direct that in thecircumstances of this case each party should bear own costs. Appealallowed. 294