Supreme Court of Mauritius, 19 juin 2020, 2020 INT 86 – Curepipe Jummah Mosque Waqfv/s Ismael Osman Peer

1

Curepipe Jummah Mosque Waqfv/s Ismael Osman Peer

2020 INT 86

CUREPIPE JUMMAH MOSQUE WAQF v/s PEER ISMAEL OSMAN THE INTERMEDIATE COURT OF MAURITIUS CN: 1537/2016 In the matter of:- Curepipe Jummah Mosque Waqf Plaintiff v/s Ismael Osman Peer Defendant

In the presence of:

The Board of Waqf Commissioners Co-defendant

JUDGMENT

Plaintiff avers that it is the owner and landlord of a commercial building and that defendant is the tenant in one unit forming part of the said commercial premises. The defendant was authorised by the plaintiff to carry on a chicken shawarma kebab business and was authorised to make the necessary modifications to the block wall so as to fit the kebab machine. Defendant however without authorization caused the blockwall of the said unit to be pulled down and has failed to reinstate the premises to its

original state. As a result of the wrongful acts of the defendant which amount to a breach of tenancy agreement, the plaintiff has suffered prejudice which amounts to Rs 350,000 and is therefore praying for a judgment ordering the defendant to reinstate the premises to its original state and to pay to the plaintiff the sum of Rs 350,000.

In the plea, it is admitted that plaintiff is the owner and landlord of the premises and that the defendant is the tenant in one unit of the premises. It is averred that he did carry out the necessary modifications and the plaintiff out of bad faith rented part of the building to one Hossen Maiharab and the latter has bene unfairly competing with the defendant. It is further averred that only part of the wall was modified and that the defendant has never breached any agreement.

Plaintiff’s case

The main features of the plaintiff’s representative’s testimony are that the plaintiff is the owner of commercial premises located at Malartic street, Curepipe. Defendant is a tenant of the said premises and has requested permission to carry out his business of kebab. Plaintiff gave authorization to the defendant to carry out modifications to a block wall so that a kebab machine could be installed. Defendant subsequently pulled down the whole wall when he was never authorized to do so. He produced some photographs of the premises. In cross-examination, he conceded that the plaintiff gave an authorization to the defendant in 2009 to carry out modifications to the block wall and stated that the defendant pulled down the wall in 2016. He added that the defendant did not have to destroy the whole wall to install the kebab machine. He maintained that defendant pulled down the whole wall.

Mr Jeelani Mohamed Nusseeb deposed that his services were retained by the plaintiff to estimate the cost of reinstatement works following alteration works carried out by Mr Osman Ismael Peer. He produced his report. In cross-examination, he stated that he is not aware that the defendant requested permission to carry out the works and whether permission was indeed granted.

Defendant’s case

Defendant was duly represented in court by his proxy Mr SK Boodhun and a document to that effect was produced in court. The gist of Mr Boodhun’s testimony is that Mr Osman Peer is the tenant of a commercial premises. He constructed a wall and window display when he rented the premises. He sent a written request to the plaintiff in 2009 to modify the wall to be able to install a kebab machine. He obtained authorization to modify the wall. He then proceeded to remove the wall and window display. He has been paying rent every month and has never fallen into arrears. In cross-examination, he stated there was no wall initially and that it is Osman Peer who constructed the wall. He maintained that when the premises were rented, there was no wall and that it was defendant who constructed the wall. He denied that he is lying. The defendant did not install the kebab machine in the end since the tenant who was adjacent received authorization to install a kebab machine. He stated that the defendant asked for permission to modify the wall since there was a change of president. Defendant asked for permission in 2009. He could not recall when the wall was pulled down and denied that the wall was pulled down in 2016. He added that as soon as the defendant obtained authorization, he started the works. He agreed that the authorization was to carry out the necessary modifications to a block wall to install a kebab machine and that the defendant has still not installed any kebab machine. He stated that he had to pull down the wall completely since he had to place a table inside to be able to use the kebab machine and that the wall was not high enough. He denied that the defendant is liable to pay to the plaintiff the sum of Rs 350,000 as damages.

Analysis and findings

The main issue to be determined is whether the defendant has acted in breach of the tenancy agreement by pulling down the whole wall without authorization. It is not disputed that there was indeed a tenancy agreement between the plaintiff and the defendant. It is well settled that a tenant is not allowed to bring modifications to rented property. Under article 1728-1, a tenant is bound to use the premises « en bon père de famille et suivant la destination qui lui a été donné par le bail ». Furthermore, article 1732 provides that a tenant “répond des dégradations ou des pertes qui arrivent pendant sa jouissance, à moins qu’il ne prouve qu’elles aient eu lieu sans sa faute ». The

evidence discloses that the defendant pulled down the whole wall and by doing so, he brought a substantial alteration to the rented premises. It is borne in mind that the defendant was granted authorization to modify the wall. However, he was only allowed to bring necessary modifications to install a kebab machine. Mr S K Boodhun admitted in cross-examination that the defendant pulled down the whole wall. His belated explanation that the defendant had to pull down the whole wall because he had to place a table inside for the kebab machine is not tenable and in contradiction with the denial in the plea that the defendant had pulled down the whole wall. I also reject as untrue his version that it is the defendant who had constructed the wall since it is in blatant contradiction with the pleadings. It is significant to note that no kebab machine was installed in the end despite the fact that the main purpose of the modification was to install a kebab machine. The pulling down of the whole wall is in my view not justified since it amounts to a substantial alteration to the rented premises and constitutes a breach of the defendant’s obligation to act as “bon pere de famille”.

To the extent that the defendant did not act as “bon pere de famille” by pulling down the whole wall and has failed to install the kebab machine, he acted in breach of article 1728 of the Code Civil Mauricien. I therefore order the defendant to reinstate the premises to its original state by erecting the wall which he has pulled down within a delay of 3 months.

As regards the claim for damages as a result of breach of tenancy agreement, damages are to be assessed in terms of financial loss suffered by the plaintiff or loss of profits which the plaintiff has been deprived of. Apart from the loss of the wall, there is no evidence of any harm suffered or loss of profits suffered as a result of the pulling down of the whole wall. It is not disputed that the defendant carried on paying the rent. I am of the view that the loss of the wall can be adequately compensated by an order for the reinstatement of the premises which I consider to be sufficient and just. I therefore decline to make an award for damages and dismiss the claim for damages.

With costs.

[Delivered by N Senevrayar-Cunden, Magistrate of Intermediate Court, Civil Side]

[Delivered this 19 th of June 2020]