Gill v Lewis

Where joint tenants hold the whole premises jointly, a possession judgment obtained against only one tenant is ineffective unless service on that tenant also constitutes service on the other. Payment or tender of all rent, arrears and costs before an effective trial therefore engages section 212 of the Common Law Procedure Act 1852. Further ejectment proceedings must then cease.

On the court’s alternative analysis, relief from forfeiture for non-payment of rent should ordinarily be granted once the landlord has received all rent and costs. Other complaints against the tenant are generally irrelevant. Relief may nevertheless be refused in exceptional circumstances, particularly where intervening rights prevent restoration of the former position or the tenant’s conduct concerning the premises makes equitable assistance improper.

The landlords’ executors brought proceedings against two joint tenants for possession of two leasehold houses, arrears of rent and mesne profits. Judgment in default was entered against one tenant only. The tenants subsequently paid or tendered all rent and costs and sought relief from forfeiture.

A Master granted relief, and Pearson J affirmed that decision in chambers. The landlords appealed, relying on the tenants’ history of late payment and difficulty of service, together with one tenant’s conviction for offences committed at one of the houses.

The Court of Appeal considered whether the judgment against one joint tenant was effective, whether section 212 of the Common Law Procedure Act 1852 required the proceedings to cease, and, alternatively, when equitable relief from forfeiture may be refused despite payment of all rent and costs.

1. Appeal dismissed unanimously. Jenkins LJ delivered the leading judgment, with which Hodson and Singleton LJJ agreed. The operative order should reflect that the possession proceedings must cease or be discontinued under section 212 of the Common Law Procedure Act 1852, rather than treating the matter simply as a discretionary grant of relief.

2. The possession judgment entered against only one of the two joint tenants was ineffective. Each joint tenant was entitled to possession of the whole premises, and both together constituted the lessees or tenants. An effective possession judgment therefore had to bind both. The reasoning in Fairclough & Sons Ltd v Berliner [1931] 1 Ch 60, concerning an application by only one joint lessee, supported that conclusion.

3. For section 212, “trial” meant an effective trial and judgment binding all necessary parties. Because no such trial had occurred, and all rent, arrears and costs had been paid or tendered, the statutory consequence followed: all further ejectment proceedings had to cease. Jenkins LJ considered relief necessary as a corollary restoring the original position. Hodson LJ preferred an order directly recording the statutory discontinuance.

4. On the alternative assumption that the equitable jurisdiction under section 46 of the Judicature Act 1925 applied, relief should ordinarily be granted once all rent and costs have been paid. The forfeiture provision is security for payment of rent. Previous recovery proceedings, difficulty serving the tenants and unestablished breaches of other covenants were generally irrelevant.

5. The equitable jurisdiction retained a narrow power to refuse relief in exceptional circumstances. Refusal may be proper where the landlord’s position has materially changed, third-party rights have intervened, or the tenant’s conduct relating to the premises makes equitable assistance improper. The single conviction proved against one joint tenant, concerning only one of two separately leased houses, did not establish such exceptional circumstances. It was treated as an isolated matter rather than a continuing course of unlawful use.

6. The court left open whether, under Order IX, rule 9, service of a possession writ on one joint tenant might constitute service on the others and thereby support an effective judgment against them.

1. Court of Appeal: The landlords’ appeal was dismissed unanimously. The order was to reflect the mandatory cessation or discontinuance of the possession proceedings under section 212 of the Common Law Procedure Act 1852.

2. High Court: Pearson J, sitting in chambers, affirmed the Master’s decision granting the tenants relief from forfeiture.

3. Master: The tenants’ application for relief from forfeiture was granted.