Suit "Boundary of Suit: claims therein: final claims", "Judgment on matters not claimed by the litigant parties, or granting more relief than asked for by them". Cassation: "Reasons for or grounds of appeal: Irrelevant reasons or grounds", "Power of Court of Cassation". Judgment: "Reasoning of: not tainted by insufficient legal grounds and erroneous legal conclusions". Contract: "Main Conditions and conditions for meeting of minds of parties : consent: consent vitiating elements: fraud". Lease contract. Cassation: "Grounds of appeal: New grounds: Legal grounds mixed with facts". Suit "Boundary of Suit: claims therein: Judgment on matters not claimed by the litigant parties, or granting more relief than asked for by them".

(1) Suit "Boundary of Suit: claims therein: final claims", "Judgment on matters not claimed by the litigant parties, or granting more relief than asked for by them".

 

(1) Plaintiff may combine in his suit two claims one based on the other as a necessary result thereof. Opponent litigant stating in the reasons for his claims an implied claim, rejection or acceptance of which necessitates denial of his final claims or represents an initial issue which the court must consider and decide. Reference thereto in the judgment reasons for rejecting or accepting the litigant's final claims.

 

Judging on matters not claimed by the litigant parties is not considered judgment.

 

(2) Cassation: "Reasons for or grounds of appeal: Irrelevant reasons or grounds", "Power of Court of Cassation". Judgment: "Reasoning of: not tainted by insufficient legal grounds and erroneous legal conclusions".

 

Judgment reaching correct conclusion. Reasons thereof including legal errors. Court of cassation may correct such reasons without cassation. Argument against such judgment is irrelevant.

 

(3) Contract: "Main Conditions and conditions for meeting of minds of parties: consent: consent vitiating elements: fraud". "Lease contract".

 

Illicit trickery which constitutes fraud in contracting. May either be positive by employing fraudulent methods or negative by concealing something from the other contracting party which if disclosed to him, he would not conclude the contract. Articles (134/1 and 135) Civil. (Example in a lease).

 

(4) Cassation: "Grounds of appeal: New grounds: Legal grounds mixed with facts".

 

Defense based on facts not raised before the Court of First Instance. New grounds. May not be alleged for the first time before the Court of Cassation.

 

(5) Suit "Boundary of Suit: claims therein: Judgment on matters not claimed by the litigant parties, or granting more relief than asked for by them".

 

First Instance Judge. Must be limited to the boundary of suit before him in terms of litigants, cause of action, and subject and may not transcend the boundary in persona to include persons unrepresented in it or in rem so as to change its cause of action by giving relief not or more than asked for. Therefore:

 

1-    Decided that there's nothing to bar a plaintiff from combining two claims in his suit, one based on the other as a necessary result thereof. So, if a litigant stated in the grounds of his claims an implied claim, the rejection or acceptance of which necessitates denial of his final claims or represents an initial issue which the court must consider and decide, then such reference thereto in the judgment reasons for rejecting or accepting the litigant's final claims, is not considered judgment on a matter not asked for by the litigant parties.

 

2-    If the judgment concluded by obligating Appellant to refund rentals received – which is a correct conclusion – then argument against such judgment for including reasons for so concluding as applying the effect of the contract being void by restoring the contracting parties to their state before contracting is an irrelevant argument, since it's decided – in the judgment of this court – that the Court of Cassation may correct such tainted reasons without cassation if the judgment reached the correct conclusion. Therefore the argument is not admissible.

 

3-    The provision in Article (134/1) of the Civil Code that " avoidance of contract for fraud may be claimed by one whose consent was obtained as a result of trickeries practiced against him by misleading and pushing him into contracting, if he can prove that he would not have consented had he not been deceived by such trickeries", and in Article (135) of the same law that: "1- for avoidance of contract for fraud, the trickeries must have come from the other contracting party or his deputy or one of his subordinates or someone who intermediated in concluding the contract or someone for whose benefit the contract is made 2- …", means that the trickeries constituting fraud may either be positive by employing fraudulent methods or negative by the fraudster deliberately misleading the other contracting party, and that concealing a material fact or circumstance unknown to the other party is considered fraud justifying request for contract avoidance if it's proved that the defrauded party would have not concluded the contract had he had knowledge of what the fraudster purposely concealed from him. As such is the law, and that the appealed judgment reached a correct conclusion from the content of paragraph five of the Appellant's lease contract with the owner of the premises the subject of dispute, providing that the lease would commence from the date of (-) vacating the premises and Appellant receiving the keys after repairing and overhauling it, and upon minutes taken of the delivery of the building signed by the two parties, and inferred from this knowledge by Appellant that there was a contract between the owner and the department of government housing which was still subsisting and legally continuing and that repossession by Respondent of this premises was dependent upon such contract, yet it hurried in using its contract and misled Respondent that it had a right to use the premises, which constituted fraud that prompted Respondent to conclude the contract with Appellant and collect the rental from them.

 

4-    Since there is no indication in suit papers that Appellant raised before the Court of First Instance the point that the premises leased to it was not the premises under lease with the department of government housing, such defense constitutes a new grounds that may not be raised for the first time before the Court of Cassation as it contains a state of fact that should have been raised before the Court of First Instance to ascertain the difference in the subject of the contracts. Therefore argument against the appealed judgment on this grounds is inadmissible.

 

5-    Decided – in the judgment of this court – that pursuant to the principle of the parties' autonomy over facts disputed, the judge must limit himself to the boundary of the suit before him in terms of litigants, cause of action, and subject and may not transcend the boundary in persona to include persons unrepresented in it or in rem so as to change its cause of action by giving relief not or more than asked for, because judgment on that is considered judgment upon matters not raised in the suit and that his judgment in this respect is passed on no litigation.

Court:

After reviewing the papers and hearing the report, read by the reporting judge, the pleading, and deliberation.

Whereas the appeal has satisfied its formal conditions;

The facts, as stated in the appealed judgment and all the papers, are that Respondent filed Suit No. 348/2008 full civil circuit, seeking judgment for setting aside Attachment Order No. 126/2007 and binding Appellant to pay to it one million riyals in compensation. Explaining it by saying that the government housing department had leased the premises the subject of suit from the owner and that Appellant occupied the premises through the housing department from the start of the lease. And that from the correspondences between the housing department and the owner regarding the unworthy state of the premises it thought the housing department ended the lease contract with the owner. Also the Appellant company represented to Respondent that it leased the premises from the owner which made Respondent hurry for contracting a lease from Appellant starting from 1/6/2005 for a monthly rent of 247,200 riyals . And as it discovered the subsistence of the tenancy between the government housing department and the owner, the former continuing to pay the monthly rent until 31/3/2007, and as Appellant obtained a provisional attachment order against Respondent's property to the value of 247,200 riyals being the rent for February and for such detriment incurred by Respondent, it instituted the suit. Respondent also filed an incidental petition for obligating Appellant to pay 2,224,800 riyals being the amount of rents paid to Respondent under the void contract concluded between them because the government housing department was paying rent to the owner for the same period. Appellant also filed Suit No. 387/ 2007 claiming entitlement for the sum of 247,200 riyals the rental for February and validity of the provisional attachment against Respondent's personal property and binding it for the payment of one hundred thousand riyals in compensation. The court passed judgment against Respondent to pay to Appellant the sum of 257,200 riyals and in the Suit No. 348/2007 setting aside the provisional attachment order and dismissed the Sub-Suit. Respondent filed Appeal No. 161/2008 and also Appellant filed Appeal No. 198/2008. The court joined the two appeals and on 28/5/2008 passed judgment confirming the appealed judgment regarding the setting aside of the provisional attachment order by restoring it and cancelling the rest of it, and ordered Appellant to pay to Respondent the sum of 2,224,800 riyals and dismissed other claims. Appellant appealed this judgment for cassation which appeal was put before this court in the consultation room which fixed a date for hearing it.

 

Whereas Appellant argues on the first grounds of appeal against the appealed judgment for misapplication of law, saying in explanation that Respondent's claims did not include avoidance of the lease contract between Respondent and Appellant, nevertheless the judgment decreed it void and based on the effects of such void contract obligated Appellant to refund the rentals paid although Respondent used and benefited from the premises throughout the rent paid period. Therefore, the judgment appealed decreed upon matters not asked for by the litigant parties, which couldn't be tolerated by the provision of Article (163) of Civil Code allowing the court, of its own motion, to avoid a contract, which vitiates the judgment and requires its cassation.

 

Whereas this argument is not in place, for, there's nothing to bar a plaintiff from combining two claims in his suit, one based on the other as a necessary result thereof. So, if a litigant stated in the grounds of his claims an implied claim, the rejection or acceptance of which necessitates denial of his final claims or represents an initial issue which the court must consider and decide, then such reference thereto in the judgment reasons for rejecting or accepting the litigant's final claims, is not considered judgment on a matter not asked for by the litigant parties. That being so, and as Respondent's statement of defense, presented on 17/6/2007 before the Court of First Instance, included among the grounds of its petition for setting aside the attachment order – Appellant being disentitled to the unpaid rent for which the attachment order was issued – the lease contract concluded between the Appellant and Respondent was void, and it also in its statement of Appeal No. 161/2008 Respondent raised the issue of this contract being void for being tainted with fraud and cheating from the part of Appellant, so inclusion of the determination of the contract being void among the reasons on which the judgment was based in obligating Appellant to refund the rent paid by Respondent is not a judgment on matters not asked by the parties since it is congruent with the conclusion reached in the judgment that Respondent's possession of the premises was based on the contract between the government housing department and the owner which continued until 1/3/2007, so that collection of the rent by Appellants for the same period was not supported by proper cause in fact or in law; if the judgment concluded by obligating Appellant to refund rentals received – which is a correct conclusion – then argument against such judgment for including reasons for so concluding as applying the effect of the contract being void by restoring the contracting parties to their state before contracting is irrelevant, since it's decided – in the judgment of this court – that the Court of Cassation may correct such tainted reasons without cassation if the judgment reached the correct conclusion. Therefore the argument is not admissible.

 

And whereas Appellant on the second side of third grounds and the third side of the fourth grounds of argument against the appealed judgment for contradicting what is established in the papers, explained by saying the judgment concluded that Appellant employed trickeries defrauding and misleading Respondent into concluding the contract dated 1/5/2006 with Appellant, whereas it was established from the contract preamble that it was Respondent who offered the leasing of the premises from Appellant and that papers were void of any evidence supporting the conclusion reached by the judgment regarding such taints of fraud or deceit; therefore it's vitiated and calls for cassation.

 

Whereas this argument is not correct, for, the provision in Article (134/1) of the Civil Code that " avoidance of contract for fraud may be claimed by one whose consent was obtained as a result of trickeries practiced against him by misleading and pushing him into contracting, if he can prove that he would not have consented had he not been deceived by such trickeries", and in Article (135) of the same law that: "1- for avoidance of contract for fraud, the trickeries must have come from the other contracting party or his deputy or one of his subordinates or someone who intermediated in concluding the contract or someone for whose benefit the contract is made 2- …", means that the trickeries constituting fraud may either be positive by employing fraudulent methods or negative by the fraudster deliberately misleading the other contracting party, and that concealing a material fact or circumstance unknown to the other party is considered fraud justifying request for contract avoidance if it's proved that the defrauded party would have not concluded the contract had he had knowledge of what the fraudster purposely concealed from him. As such is the law, and that the appealed judgment reached a correct conclusion from the content of paragraph five of the Appellant's lease contract with the owner of the premises the subject of dispute, providing that the lease would commence from the date of (-) vacating the premises and Appellant receiving the keys after repairing and overhauling it, and upon minutes taken of the delivery of the building signed by the two parties, and inferred from this knowledge by Appellant that there was a contract between the owner and the department of government housing which was still subsisting and legally continuing and that repossession by Respondent of this premises was dependent upon such contract, yet it hurried in using its contract and misled Respondent that it had a right to use the premises, which constituted fraud that prompted Respondent to conclude the contract with Appellant and collect the rental from them, so that the judgment conclusion was drawn on agreeable reasons which were sufficient to support it and there was not contradiction with the papers so that the Appellant's argument is no more than argumentation around the substantive power of the Court of First Instance to make inferences as to the facts of the suit and of fraud and deceit factors vitiating the contract, for the purpose of reaching a conclusion different from the one reached by the appealed judgment, which may not be raised before the Court of Cassation; therefore not admissible.

 

And whereas Appellant on the third side of the third grounds and the first side of the fourth grounds of argument against the appealed judgment for violation of the right of defense, saying that it raised an initial defense against admission of the sub-suit for being against a party of no locus standi, since plaintiff relied, in its statement of suit, on the fact that the lessor is forbidden to disturb the lessee from enjoying the benefit of the leased premises and referred its occupation of the premises to the lease contract between the owner and the government housing, which makes the obligation not to disturb on the owner not the Appellant so that the suit should be against the owner, and despite this defense persisted before the Court of Appeal, but it admitted the suit without mentioning the defense or considering it in the judgment, which is a vitiating error calling for cassation.

 

Whereas this argument is not admissible, for, if the appealed judgment in the sub-suit filed by Respondent to bind Appellant to refund rent received is based on the lease contract being void for fraud, and that Respondent derives its occupation of the premises from the contract, not on some physical or legal disturbance of Respondent from enjoying the benefit of the leased premises, whether by Appellant or the owner, the argument against the judgment admitting the sub-suit without considering what was raised by Appellant in this respect as a violation of the right of defense based on facts not relied upon by the judgment, is baseless, therefore inadmissible.

 

And whereas Appellant on the third side of the third grounds of argument against the appealed judgment for contradicting what was established in the papers that the subject of the contract between the government housing is different from the subject of the contract between Respondent and Appellant, so it's erroneous and requires cassation.

 

Whereas such argument is acceptable, since, there is no indication in suit papers that Appellant raised before the Court of First Instance the point that the premises leased to it was not the premises under lease with the department of government housing, such defense constitutes a new grounds that may not be raised for the first time before the Court of Cassation as it contains a state of fact that should have been raised before the Court of First Instance to ascertain the difference in the subject of the contracts. Therefore argument against the appealed judgment on this grounds is inadmissible.

 

And whereas Appellant on the first and second sides of the second grounds and the first side of the third grounds of argument against the appealed judgment for misapplication of law and violation of the right of defense saying that it presented to the Court of First Instance a request for modifying its claims by excluding the claim for compensation since it would make this claim in an independent suit, and the judgment of the Court of First Instance ignored this request and decreed on compensation and therefore included in the statement of appeal an argument against this judgement regarding this modified claim and that it made a request before the Court of Appeal after reserving suit for judgment for putting the suit back for pleadings to reply to the Respondent's memo in this respect but the court ignored it and based its judgment in dismissing that request on being disentitled to compensation since such request was not raised before the Court of First Instance to modify its claims before the first step court, which is a vice tainting the judgment and makes for cassation.

 

Whereas this argument is not acceptable, for, it's decided – in the judgment of this court – that pursuant to the principle of the parties' autonomy over the facts to be disputed, the judge must limit himself to the boundary of the suit before him in terms of litigants, cause of action, and subject and may not transcend the boundary in persona to include persons unrepresented in it or in rem so as to change its cause of action by giving relief not or more than asked for, because judgment on that is considered judgment upon matters not raised in the suit and that his judgment in this respect is passed on no litigation. And as is established from the appealed judgment and appeal papers that although Appellant included the claim for compensation in the statement of its suit No. 387/2007 before the first step court, but it returned in a memo presented on 1/4/2007 and modified its claims by excluding the claim for compensation, and that the first step court included in its appealed judgment by Appeal No. 198/2008 obligating Respondent with paying compensation assessed at ten thousand riyals which was objected to by Appellant in the statement of its appeal as constituting a judgment not asked for, for waiving it before the first step court. And as the appealed judgment cancelled this judgment of the first step court, it reached the correct conclusion, although the reasons for judgment were unsound when it concluded that Appellant was not entitled to compensation instead of ruling that the appealed judgment transcended the plaintiff's claim; since the Court of Cassation may correct the legal reasons without cassation if the judgment reached the correct conclusion. Therefore the argument is not admissible.

 

For the above cassation is denied.