The Court

Having reviewed the documents and having heard the arguments and the report read out by the Judge-Rapporteur, and after the deliberationsandupon the satisfaction of the formal requirements of the appeal;
The facts, as revealed by the appealed judgment and other documents, may be summed up as follows:
The Respondent brought a claim No. 68/2008 against the Appellant, applying for the evictionfromand delivery of the property shown in the statement. The Respondent stated that the Appellant, in a contract dated 1.1.2007, leased from the Respondent a building situated in the industrial area. Due to the Respondent’s personal need for such property he brought the claim, which was quashed by the court of first instance. He therefore lodged an appeal No. 744/2008. On 31.12.2008 the Appeal Court decided to cancel the appealed judgment andtoterminate the lease contract and the eviction of the subject-matter of the dispute. The Appellant lodged an appeal by cassation, which was presented before this Court, at the deliberations chamber, and a hearing session was fixed for its consideration.
An appeal is nothing more than a second stage allowed by the law for the party against whom judgment was passed at the first stage to resume defence of his right, the relevant judgment on which was not satisfactory to him. Section 169 of the Procedures Law provides that “an appeal transfers the claim, in its condition as before the issuance of the appealed judgment, only as regards the matter appealed”. The law allows the party against whom a judgment was passed to reclaim such defence pleas which he had missed at the first stage of adjudication by presenting before the court of the second level any new evidence and pleadings. Such court is mandated to entertain the appeal on the basis of presentations relating thereto, in addition to those presented before the court of first instance, in the implementation of Section 170 of the Procedures Law. However, in compliance with the basic rule that adjudication shall be on two levels, and in order to avoid the use of appeals to ambush the adversary with an application not previously presented before the court of first instance, Section 172 of the Procedures Law prevents the admission at the appellate level of any new application, and instructed the appellate court to adjudicate ex meromotu.Although the aforesaid provision allows, without any alteration in the subject-matter of the application, the alteration of or addition to its reason, this is preconditioned in that the intention of the plaintiff by such alteration or addition is to affirm his right in the same application which was presented before the court of first instance. But if such alteration or addition would alter the subject-matter of the claim, or the parties thereto, or the capacities of such parties, then such application would be considered as a new application, of the type not admissible at appeal under Section 172 of the Procedures Law.
Accordingly, if the lessor brought his claim applying for eviction from the leased property to accommodate his personal need for such property, the original application before the court would then be for the annulment of the lease contract. The reason for the application would be the accommodation of the lessor’spersonal needfor the leased property, while the eviction represents the effect resulting from the annulment. In such case the lessor, while the annulment application remains as is, may alter or add to the reason for the application in the appeal. This would not be considered a new application under the last proviso of Section 172 of the Procedures Law. Accordingly, he can apply for eviction based on the violation by the lessee of his obligation to pay the rent, or subletting or misusing the leased premises, instead of founding the eviction on the personal need reason, or in addition to such reason. This is because the application in all the aforesaid situations amounts to an annulment of the lease contract and the eviction situations are mere reasons for the application. However, basing the eviction of the lesseeon the expiry of the contract period is different because the lessor’s claim in this case is one for the eviction of the lessee from the leased property, the reason being the termination of the contract due to the expiry of its period. The lessee would therefore be deprived of the contract document and would become a trespasser. The claim for eviction due to the termination of the lease is considered, in this case, as a new application under Section 172 of the Procedures Law. Accordingly, a lessor who had applied for eviction based on his personal need for the leased property, or for any other reason for annulment, may not apply - for the first time before the appellate court – for eviction based on the expiry of the contract period.Whereas the minutes of the appealed judgment and other documents clearly reveal that the Respondent has applied to the court of first instance for the annulment of the lease contract concluded between the Respondent and the Appellant for his personal need to the leased property; and whereas the Respondent added to such application another application before the appellate court requesting eviction of the Appellant for the termination of the lease contract due to the expiryofits period; and since the matter freshly introduced by the Respondent at the appellate stage as aforesaid was not confined to an addition of a new reason for his application, but rather amounted to a new application based on a fact ultimately resulting in the expiry of the lease period, which is an alteration of the subject-matter of the claim applications not admissible at the appellate court because they were not presented before the court of first instance; and since the appealed judgment has decided on the claim based on the said application despite its legal inadmissibility, this is therefore an error in the application of the law worthy of appeal by cassation and should be so judged by the Court ex meromotu with no need to consider the reasons of the appeal by cassation, according to Section 4(4) of Law No. 12 of 2005 on the Conditions and Procedures of Appeal by Cassation in non-criminal provisions. This is because the plea for the inadmissibility of new applications before the appellate court relates to the adjudication system, which is considered a matter of public order.
Whereas the subject-matter is admissible for settlement and, according to the aforesaid, the application for eviction due to the termination of the lease, which was presented for the first time before the appellate court, shall not be admitted. Where the property being the subject-matter of the dispute is situated in the industrial area, it is then not governed by the provisions of the Real Estate Tenancies Law No. 4 of 2008. Rather, it is governed by the provisions of the Civil Law which does not recognise the lessor’s personal needas a reason for eviction. Accordingly, the appealed judgment rejecting the claim shall hereby be affirmed.