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Amritlal N. Shah Vs. Alla Annapurnamma - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 318 of 1953
Judge
Reported inAIR1959AP9
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17 - Order 7, Rule 7; Madras Buildings (Lease and Rent Control) Act, 1946 - Sections 2 and 7; Evidence Act, 1872 - Sections 115
AppellantAmritlal N. Shah
RespondentAlla Annapurnamma
Appellant AdvocateN. Chandramouli, Adv.
Respondent AdvocateA.V. Krishna Rao, Adv.
DispositionAppeal dismissed
Excerpt:
tenancy - eviction - order 6 rule 17 and order 7 rule 7 of code of civil procedure, 1908, section 2 of madras buildings (lease and rent control) act, 1946 and section 115 of evidence act, 1872 - plaint property with furniture granted on lease for period of five years to appellant - application for eviction filed under madras building lease and rent control act - appellant contended that he was not tenant within meaning of act - application rejected as premises did not fall within definition of building - thereafter suit filed for arrears of rent and eviction on ground of expiry of lease - appellant contended that he was entitled to abatement of rent for stoppage of business and civil court had no jurisdiction as provisions of act were applicable - held, not open to tenant to turn around.....umamaheswaram, j.1. this is an appeal brought by the defendant as against the judgment and decree of the additional subordinate judge of guntur in o. s. no. 50 of 1950. the suit was instituted by the respondent herein for recovery of the arrears of rent and possession of the plaint scheduled property or in the alternative for payment of the balance of security deposit. her case was that the plaint scheduled property was granted on lease to the appellant herein on 26-4-1947 and that the lease was for a period or five years. she filed an application under s. 7 of the madras buildings (lease and rent control) act, 1946, hereinafter referred to as the act, for eviction of the appellant herein. the application was dismissed on 2-4-1949.she thereupon preferred an appeal to the subordinate judge.....
Judgment:

Umamaheswaram, J.

1. This is an appeal brought by the defendant as against the judgment and decree of the Additional Subordinate Judge of Guntur in O. S. No. 50 of 1950. The suit was instituted by the respondent herein for recovery of the arrears of rent and possession of the plaint scheduled property or in the alternative for payment of the balance of security deposit. Her case was that the plaint scheduled property was granted on lease to the appellant herein on 26-4-1947 and that the lease was for a period or five years. She filed an application under S. 7 of the Madras Buildings (Lease and Rent Control) Act, 1946, hereinafter referred to as the Act, for eviction of the appellant herein. The application was dismissed on 2-4-1949.

She thereupon preferred an appeal to the Subordinate Judge of Guntur in C. M. A. No. 60 of 1949, and the learned Judge held that the provisions of the Rent Control Act did not apply, and consequently dismissed the appeal. The suit was therefore filed both for recovery of the arrears of rent and for possession of the plaint scheduled property. During the pendency of the suit, the lease had expired and me respondent filed I. A. No. 793 of 3952 for amendment of the plaint and for recovery of possession on that fresh ground, viz., the expiry of the lease. The amendment application was ordered on 1-8-1952.

2. The appellant herein contended that he was entitled to abatement of rent for stoppage of business and that he had also discharged the arrears of rent. He further pleaded that the Court had no jurisdiction to entertain the suit and that the provisions of the Act apply.

3. The Subordinate Judge held that under the terms of the lease deed he was not entitled to abatement of rent for stoppage of business. He further found that the discharge pleaded by him was not true. On the construction of the lease, he came to the conclusion that the defendant was not a tenant of a building within the meaning of the Act, and that the Court had jurisdiction to entertain the suit.

It was further held that by reason of his conduct and decision in C. M. A. No. 60 of 1949 on the file of the Subordinate Judge of Guntur, the appellant was estopped from contending that the Civil Court had no jurisdiction to entertain the sail. The defendant has consequently preferred the appeal,

4. Sri Chandramouli, the learned advocate for the appellant contended (1) that the Subordinate judge erred in allowing the amendment of the plaint in I. A. No. 793 of 1952 and permitting the plaintiff to base his claim for recovery of possession on a fresh cause of action; (2) that on a true construction of the document of lease, the appellant was a tenant of a building within the meaning of the Act; (3) that the Court below erred in helding that the appellant was estopped by reason of his conduct and the decision in C. M. A. No. 60 of 1949. Sub Court, Guntur; (4) that the appellant is entitled to abatement of rent as there was stoppage of business for 6 months and odd; and (5) that me discharge pleaded by the appellant was true.

5. As stated supra, an application for eviction was filed under S. 7 of the Act on the ground that the appellant herein committed default in the payment of rent. As the appeal C. M. A. No. 60 of 1949 on the file of the Subordinate Judge's Court, Guntur was dismissed on the ground that the provisions of the Rent Control Act did not apply. The respondent had to institute the suit in the Subordinate Judge's Court for the same relief.

The suit was instituted on 2-3-1950. Daring the pendency of the suit the lease period had expired and she applied in I. A. No. 793 of 1952 for the amendment of the plaint. By means of the application, she sought to put forward a fresh ground entitling her to recover possession of the plaint scheduled property. As a result of the amendment, the nature of the relationship between the parties is in no way altered.

In the first instance she pleaded that by reason of the defendant's default to pay the arrears of rent, she was entitled to recover possession. By means of the amendment, she claimed that even if default is not proved, she would be entitled to possession as the lease period had expired. In that view, she did not press issue No. 4 relating to forfeiture and prove default of the payment of rent entailing forfeiture.

6.-7. Sri Chandramowli, the learned advocate for the appellant, strenuously contended that its the lease had expired only two years after the institution of the suit, she was not entitled to claim any relief on that fresh cause of action. We are not inclined to accept this contention and we held that the amendment application was properly allowed by the Subordinate Judge.

8. It is now well-settled that in proper eases, the Court is entitled to take note of the subsequent events and grant relief to the parties accordingly, if by so doing it can shorten litigation and best attain the ends of justice.

This power may be exercised even by the Court of appeal as an appeal is only in the nature of a re-hearing. Vide observations of Bhagwati, J. in Chunilal Khushaldas v. H. K. Adhyaru, : AIR1956SC655 (A). In Appalasuri v. Kannamma Nayuralu 49 Mad LJ 479: (AIR 1926 Mad 9) (B), there is a full discussion of all the earlier authorities by the Bench of the Madras High Court. It was held that 'Events that happen even after the filing of the suit-- including those that add to the title of the plaintiff may be taken notice of'. At page 489 (of Mad LJ): (at p. 12 of AIR) are the relevant observations and they are as follows:

'No doubt the discretion ought not to be exercised when there is a change of jurisdiction, when there is a great delay in making the application and may not be exercised if a fresh enquiry on other fact is necessary. But when these features do not exist, in our opinion, the amendment ought, as a general rote, to be allowed to avoid multiplicity of proceedings. In all such cases, the only question of consequence is one of court-fees, a matter with which the parties are not concerned and the opposite party is not deprived of any defence which is obviously open to him'.

The principle underlying the above practice is, as stated by Mr. Justice Thayer in Ransom v. City of Pierre, (1000) 41 CCA 585: 101 Fed. Rep. 665 (C), that 'it is the duty of the Court which still retains control of the judgment to take such action as will shorten litigation, preserve the rights of both parties, and best subserve the ends of justice'.

It was pointed out by Mr. Justice Gray in Mills v. Green, (1895) 159 U S 651 D) that the right to take notice of the subsequent events is not only a power but may also sometimes be the duty of the Court to do so. This question is considered at length by Mookerjce J, in Ram Ratan Sahu v. Bishuachand, 6 Cal LJ 74 (E). The decision in Janaki v. Kalliani Amma, AIR 1934 Mad 675 (F) (of a single Judge) is directly applicable to the facts of this case. It was held that as the six years' term of the lease had expired at the date of the appeal, it was not necessary to discuss the other question whether there had been a breach entailing forfeiture of the lease.

Similarly, in Mammad v. P. K. Veerarayan, 1929 Mad WN 165 (G), another single Judge held that though the suit was brought by the plaintiffs about a month or so before the term under the lease had expired, it was open to the Court to take notice at the subsequent event, viz., the expiry of the lease and mould relief accordingly. In Thiramayya v. Siddappa. AIR 1925 Mad 63 (II), it was held that though the plaintiff had no right of snit at the date of the institution, but he acquired the right through inheritance before the disposal of the suit, the rights of suit could be recognised even without formal amendment.

To the same effect is an earlier Bench decision in Subbaraya Chetty v. Nachiar Animal, AIR 1918 Mad 143 (1) (H1) where the Court took note of the cause of action which arose subsequent to the filing of the plaint. Vide also similar observations of King J. at page 193 in Damodaran v. Achuthan, AIR 1935 Mad 190 (I). In Rama Chaadra v. Maharaja of Jeypore, 34 Ind Cas 411: (AIR 1917 Mad 198) (J), a Bench of the Madras High Court expressed a doubt whether under the wide powers of amendment conferred by Order VI Rule 17, C.P.C., a Court has power to allow the plaintiff to claim reliefs to which he was not entitled at the time of the , action on a new title which accrued after.

But in Doraisami Pillai v. Chinnia Goundan, 34 Mad LJ 258: (AIR 1918 Mad 272) (K), the learned Judges repelled the contention that the cause of action which arose subsequent to the institution of the suit could not properly be included in the suit by amending the pleadings and that the parties must file a fresh suit. At page 262, (of Mad LJ): (at p. 274 of AIR), Wallis, C. J. observed as follows:

'To say that a plaintiff cannot be allowed to cure a formal defect in his title to sue at an early stage of the suit as soon as it is challenged and must be driven in every such case to a fresh suit appears to me to impose an undue hardship on litigants in India having regard to the State of the law as to Court-fees and cost of litigation, and I do not think we are compelled by authority to adopt such a view as to interfere in appeal in any case where such an amendment has been allowed in the lower Court.'

Ramesam J. reviewed all the authorities and held in B. Gangayya v. Satyanarayana, AIR 1925 Mad JG21 (L), that there was no general rule that an amendment cannot be allowed so as to plead a title acquired after the date of the plaint. The same principle is applied where subsequent to the institution of the suit fresh legislation is passed.

The decision in Lakshmi Animal v. Narayanaswami Naicker, : AIR1950Mad321 (M), is one such instance. Following the observations of Varadachariar J. in Shyamakant Lal v. Rambhajan Singh, 1939 FLJ 183 at pages 204 and 205: (AIR 1939 FC 74 at pp. 82 and 83) (N), and in Lachmeswar Prasad v. Keshwar Lal, 1940-3 FLJ 73: (AIR 1941 FC 5) (O), Viswanalha Sastri J., held that he was entitled to take note of the provisions of the Hindu Married Women's Rights to Separate Residence and Maintenance Act (XIX of 1946). The learned Judge observed that if a cause of action not available on the date of the suit accrued during its pendency, the Court has a discretion to grant the amendment of the plaint so as to enable the plaintiff to include the fresh cause of action.

He held further that if facts are not in dispute and the accrual of a cause of action subsequent to the suit is under the terms of the statute, or which the Court should take notice, even a formal amendment of the plaint was unnecessary. To the same effect is the Bench decision of this Court in Jaggamma v. Satyanarayanamurthi, 1957 Andh LT 881: (AIR 1958 Andhra Pra 582) (P).

9. As against the current of authorities referred to supra, Sri Chandramowli relied on an earlier decision of the Madras High Court in Ramanandan Chetti v. Pulikutti Serwai, ILR 21 Mad 288 (Q). During the pendency of the lease, defendants 2 and 3 trespassed upon the property granted on lease to the 1st defendant. The lessor filed a suit for directing some of the defendants who trespassed upon the property to hand over possession.

It was held that the lessor was not entitled to sue for possession as there was a subsisting lease-During the pendency of the suit, the lease had expired. So, it was contended on behalf of the plaintiff-lessor that a decree for possession could be passed in his favour. It was held that as the cause of action for recovery of possession arose subsequent to the institution of the suit, relief could not be granted on that basis. At page 290, it was observed as follows :

'If in suits for partition under the Hindu Law events occurring after the commencement of the action are to be considered in determining the rights of the parties, such cases must be treated as an exception to the general rule that the rights of parties must be ascertained as at the date of the action brought.'

We are not inclined to follow this decision as its authority has been considerably shaken by the several decisions referred to supra and the principle applicable to partition suits has been extended to various other cases. We do not propose to distinguish the decision on the ground stated by Ramesam J. in AIR 1925 Mad 1021 (L), that the amendment was asked for at a very late stage.

We find that the amendment that was applied for in the particular case was for seeking a declaration instead of recovering possession. It was not based on the ground that the lease had expired. The decision of Spencer J. in Rangayya Naidu v. Basana Simon, AIR 1926 Mad 594 (R), is opposed to the later Bench decisions of the Madras High Court, and is, in our opinion, no longer good law. The grounds on which the learned Judge sought to distinguish the decisions in AIR 1918 Mad 143 (1) (H1), and 34 Mad LJ 258: (AIR 1918 Mad 272) (K), are in our opinion erroneous. The next decision relied on by Chinna Venkataraju v. Ramachandra Rao, AIR 1936 Mad 504 (S), does not in any way affect this question.

On the facts of the particular case, the learned Judge held that it was not appropriate to take notice of the subsequent events. It was held that it the discretion was exercised in favour of the landholder. 'the effect will be to cut down the duration of the statutory bar to something less than 20 years, and to abrogate in part the express provisions of the statute.' The general power of the Court to take note of subsequent events is recognised and reference is made by the learned Judge to the decision in AIR 1918 Mad 143 (1) (H1).

10. The effect of all the decisions referred to supra is neatly summed up by Mulla, in his commentary on the Civil Procedure Code, 12th edition, at page 612 in the following words :

''Ordinarily, the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or that it is necessary to have the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made. Leave to amend may be granted under Order 6, Rule 17, for this purpose.'

11. The only decisions which still remain to be considered are Eshelby v. Federated European Bank Ltd., 1932-1 KB 254 (T), affirmed in Eshelby v. Federated European Bank Ltd., 1932-1 KB 423 (U), and Kesho Ram v. Dr. P. C. Tandon, (V). Swift J., held that as the second instalment fell due only after the institution of the suit, the writ ought not to have been allowed to be amended and relief granted on the basis of the said amendment. Scrutton L. J., confirmed his decision and held that the amendment was 'contrary to the universal practice.'

This decision was merely followed by a single Judge of the Punjab High Court in (V). We are inclined to take the view that the decision of the English Court referred to above does not fall within the exceptions laid down by the series of Madras decisions referred to above. We are inclined to hold, in the light of the decisions referred to supra, that the Subordinate Judge acted rightly in allowing the amendment of the plaint and granting relief as to recovery of possession by reason of the expiry of the lease during the pendency of the suit without driving the plaintiff to a separate suit.

12. The next question that falls to be decided is whether the provisions of the Rent Control Act apply to the lease in question marked as Exhibit B-20. Under the said document, the respondent herein granted to the appellant, a lease of 'Sri Krishna Talkies, Guntur, premises, other accessories and fully described schedule mentioned hereunder for a period of five years on an annual rental of Rs. 6,600 only, calculated at Rs. 550 per month comprising Rs. 350 towards hall rent, Rs. 100 towards rent on furniture and Rs. 100 rent on electrical samans as per schedule and stalls.'

The respondent is described as sole proprietor of Sri Krishna Talkies. In paragraph 2 of the lease, it is stated that 'All the licences that is 'A' Form licence, municipal licence, Fire Officers Certificate, Electrical Inspector's Certificate, etc., are to be taken in the name of New Bombay Talkies, Guntur, lessees of Sri Krishna Talkies, Guntur, owner, the lessors Alla Annapurnamma and Alla Koteswara Rao.' In paragraph 11 it is stated that a petition by the lessors and the lessee was filed for the renewal of 'A' Form licence to the District Magistrate, Guntur, for the tease period. It was further provided that another application to the Municipal Commissioner, Guntur, to transfer the licence in the name of the lessee as stated in paragraph 1 of the lease deed under the Places of Public Resort Act, as also an application to the Guntur Power and Light Ltd., Guntur should be made.

In the schedule attached to the lease deed are described the various items rented out to the appellant. A reading of those items, especially Items 1, 2, 3, 10, 11, 13, 14, 24, 28, 33 to 36 and 45 leads us to the conclusion that the cinema equipment was also granted on lease apart from the premises. The fact that the projector was not granted on lease does not, in our opinion, make any difference.

The lease document is more or less similar to the document that was considered by the Division Bench of the Madras High Court in Raja Chetty v. Jagannatha Das Govindas, : AIR1950Mad284 (W). The lease thereunder was of the building as also of pictures, fittings and other articles. The observations in that decision that 'the lease was of a talkie house with everything that was necessary to run cinema shows and that to split up such a composite lease into separate contracts of lease and hire was to destroy it altogether' are applicable to the instant case.

This decision was followed by this Court in Amritlal N. Shah v. Krishna Rao (Unreported Judgment of this Court in Appeals Nos. 323 and 743 of 1949, D/- 13-8-1954 (X), to which one of us (Umamaheswaram J.) was a party. The relevant provisions of the Act were discussed and the earlier decisions of the Madras High Court in appeal No. 590 of 1945 (Y), (unreported) and : AIR1950Mad284 (W), were followed. The contention based upon the notional splitting of rent was repelled. To the same effect is another decision of this in Venkayya v. Venkata Subba Rao, 1956 Andh WR 1093: (AIR 1957 Andh Pra 619) (Z), to which one of us (Krishna Rao J.) was a party.

13. Sri Chandramowli strenuously contended that the decisions referred to supra have no application to the lease in question and that the items referred to in the schedule to Exhibit B-20 should be regarded as articles attached to the building or the hall. On the construction of the document, we are not inclined to accept his contention. We are clearly of opinion that those items were hired for the purpose of carrying on the cinema business.

The decision of the Supreme Court in Karnani Properties Ltd. v. Miss Augustine, (S) : [1957]1SCR20 , relied on by Sri N. Chandramowli does not apply to the facts of this case. Under the special provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950, 'premises' is defined as including the furniture supplied as also the 'Fittings' affixed by the landlord for use of the tenant in such building or part of a building etc., Sinha J., consequently held that the term was comprehensive enough 'to include all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances but also of furnishings, electric installations and other amenities agreed between the parties to be provided by and at the cost of the landlord'.

That decision does not consequently help the construction of the term 'building' under the Madras Rent Control Act, which is differently worded. Under the provisions of the Madras Rent Control Act, the definition of a 'Building' includes only furniture and not fittings as in the Calcutta Act. We are therefore not inclined to agree that all the decisions referred to supra have been impliedly overruled by the Supreme Court decision. The decisions in Karsandas v. Karsanji, AIR 1953 Sau 113 (Z2), and Residence Ltd. v. Surendra Mohan, : AIR1951Cal126 (Z3), are similarly distinguishable as they turn upon the construction of the local acts differently worded. The definition of 'premises' under those Acts includes not only furniture hut also fittings etc.

As we are bound by the decisions of the Madras High Court and this Court referred to supra, we follow them and hold that the lease in question is a composite lease and that the appellant is not a tenant entitled to the benefits of the Act.

14. In any event, we are inclined to agree with the Subordinate Judge that by reason of the appellant's conduct and the decision in C. M. A. No, 60 of 1949 on the file of the Subordinate Judge's Court, Guntur, marked as Exhibit A-2, the appellant is precluded from questioning the jurisdiction of the Civil Court. A perusal of Exhibit A-2 clearly shows that the Subordinate Judge held that the application for eviction under Section 7 of the Act was not maintainable as the appellant contended that the provisions of the Act did not apply to the case.

Before the Subordinate Judge, the appellant herein urged that he was not a tenant within the meaning of the Act as the lease premises did not fall within the definition of a 'building'. Having taken up that position in the rent control proceedings, it is not open to the appellant to turn round and contend that the lease relates to a 'building' within the meaning of the Act and that the proceedings should be taken before the Rent Controller. The General rule of estoppel governing cases f this description is laid down by Bigelow on 'Estoppel' at page 783 in the following words :

'If parties in Court were permitted to assume inconsistent positions in the trial of their causes, the usefulness of Courts of justice would in most oases be paralysed, the coercive process of the law available only between those who consented to exercise, could be set at naught by all. But the rights of all men, honest and dishonest, are in the keeping of the Courts and consistency of proceedings is therefore required of all those who come or are brought before them. It may accordingly be laid down as a broad proposition that one who, without mistake induced by the opposite party, has taken a particular position deliberately in the course of litigation must act consistently with it; one cannot play fast and loose.'

The learned author stated further at page 789 that

'The principle under consideration will apply to another suit than the one in which the action was taken where the second suit grows out of the judgment of the first. It is laid down that a defendant who obtains judgment upon an allegation that a particular obstacle exists cannot in a subsequent suit based upon such allegation deny its truth.'

The passages aforesaid clearly apply to the facts of this case and the appellant cannot consequently assume inconsistent positions. The observations of Mukherjea J. in Hemantha Kumari Devi v. Prasanna Kumar, AIR 1930 Cal 52 (Z4), directly govern this case and they are as follows :

'It is well settled that a party litigant cannot he permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate, to the detriment of his opponent; and that ibis wholesome doctrine applies not only to the successive stages of the same suit, but also to another suit other than the one in, which the position was taken up, provided the second suit grows out of the judgment in the first.'

15. It is well settled that 'estoppels' in the sense in which the term is used in English legal pharaseology are matters of infinite variety, and are by no means confined to the subjects which are dealt with in Chapter VIII of the Evidence Act. According to Garth, C. J., in Ganges Manufacturing Co. v. Sourujmull, ILR 5 Cal 669 (Z5), at page 678, 'a man may be estopped, not only from giving particular evidence, but from doing acts, or relying upon any particular arguments or contention, which the rules of equity and good conscience prevent his using as against his opponent,'

Reference is made to a large number of cases collected in the notes to Doe v. Oliver. (1829) 2 Smith's LC 8th Ed. 775 (26). Mr. Justice Wallis (as he then was) took the same view in Krishna-swamy Chetty v. Sitaram Chetty, 23 Mad LJ 335 (Z7). The learned Judge held that Section 115 of the Evidence Act was 'by no means an exhaustive exposition of the law of estoppel' and followed the passages from Bigelow on 'Estoppel' referred to supra. A similar view was taken by a Bench of the Madras High Court in Aiyathurai Pillai v. Gnanaprakasa Odayar, 52 Ind Cas 829: (AIR 1919 Mad 1172) (Z7A).

When the suit was instituted on the small cause side of the Munsif's Court, the defendant successfully pleaded want of jurisdiction and the plaint was returned for presentation on the original side. When he sought to raise an objection that the appeal against the decision of the District Munsif on the original side was not maintainable on the ground that the suit was of a small cause nature, the learned Judges held that he was estopped from objecting to the jurisdiction 'which he had himself designated as the proper one.' In Annapurnammagaru v. Rajah of Vizianaearam, AIR 1935 Mad 367 (Z8), a single Judge of the Madras High Court (Venkata Subba Rao J.) took the same view. The head-note (b) correctly sets out the point decided by him, and it is as follows :

'A party cannot both approbate and reprobate-Where a person alleged in the previous suit that the village in question was not an estate and obtained a decision in his favour on the point. Held : that he cannot turn round and say that the land is an estate and on the strength of that assertion invoke the special jurisdiction of the Revenue Courts.'

The observations of the Privy Council in Ambu Nair v. Kelu Nair, ILR 56 Mad 737: (AIR 1933 K 167) (Z9). 'It is a well accepted principle ^that a party cannot both approbate and reprobate' as also the words of Honyman J. in Smith v. Baker, (1873) LR 8 CP 350 at p. 357 (Z10), that he cannot 'at the same time blow hot and cold' were followed.

16. Apart from the decision of the Madras High Court referred to supra, there are decisions of other High Courts taking the same view. All those decisions are referred to by Kumarayya J. in a recent decision of this Court in Indermull Loniya v. Sub-Judge, Secunderabad. 1957-1 Andh WR 196: (AIR 1958 Andh Pra 779) (211). On a careful examination of those several decisions, we are inclined to agree with the learned Judge that the principle of estoppel would apply even on the footing that the civil Court had no jurisdiction to entertain the suit.

The propositions of law advanced by Sri Chandramowli that there can be no estoppel against a statute or on a question of law and that no amount of consent can confer jurisdiction on a Court not having jurisdiction are well settled, The principle laid down in Minakshi Naidu v. Subramanya Sastri, ILR 11 Mad 26 (PC) (Z12), and Ledgard v. Bull, ILR 9 All 191 (PC) (Z13), that when the Judge has no jurisdiction over the subject-matter of a suit, the parties cannot by their mutual consent convert it into a proper judicial process is equally dear. But these principles are in no way violated by giving effect to the statement of law enunciated by Bigelow on 'Estoppel' and followed in the several decisions referred to supra.

17. Strong reliance was placed by Sri Chandramowli on the observations of Lord Thankerton in J. and F. Stone Lighting and Radio Ltd. v. Levitt, 1947 AC 209 (Z14) at page 216.

'......it is idle to suggest that either estoppel or res judicata can give the Court a jurisdiction wider the Rent Restriction Acts, which the statute says it is not to have. I agree with the comments of Lord Greene M. R. in Griffiths v. Davies, 1943-2 KB 618 at p. 620 (215).'

What Lord Creene M. R. held in 1943-2 KB 618 at p. 620 (Z15) was that where there is a statutory prohibition or direction it cannot be overridden or defeated by a previous judgment between the parties. Reference was made to the decision of the House of Lords in Bradshaw v. M' Mullan, (1920) 2 Ir R 412 (Z16), and of the Privy Council in Maritime Electric Co. Ltd. v. General Diaries Ltd., 1937 AC 610 (Z17).

The same proposition is laid down in Welch v. Nagy, 1950-1 KB 455 (218). All the decisions relied on by the learned advocate for the appellant relate to the doctrine of estoppel by record and do sot deal with the principle of estoppel arising out of parties taking up inconsistent positions and dealt with by Mr. Bigelow in his treatise on estoppel.

The learned advocate for the respondent does not contend that the order of the Subordinate Judge marked as Exhibit A-2 operates as Res Judicata. His contention is that having obtained the

order of dismissal of the appeal preferred under the provisions of the Rent Control Act, the appellant is not entitled to contend in the suit instituted in the Civil Court that the proper forum is the Rent Controller.

18. Moreover, there is no question of lack of inherent jurisdiction in the Civil Court to entertain a suit by a landlord for recovery of possession from the tenant of a building falling within the definition of the Act. Section 9. C. P. C., clearly enacts that the Civil Courts shall have jurisdiction to by all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred

Section 7 of the Act provides when a tenant may be evicted by the landlord, In Muhammadunny v. Melepurakkala Unniri, 1949-1 Mad LJ 452: (AIR 1949 Mad 765) (Z19), it was held that there was nothing in the provisions of the Act expressly prohibiting the institution of a suit for possession or prohibiting the civil Court from passing a decree for possession. What Section 7 enacts, is that the tenant is not liable to be evicted except in accordance with the provisions thereof.

A similar view has been taken by this Court in Venkataratnam v. Venkata Rao, 1957-2 Andh WR 397 (Z20). If the Civil Court had no lack of inherent jurisdiction, to entertain the suit, the decisions in ILR 9 All 191 (PC) (Z13), and ILR 11 Mad, 26 (FC) (Z12), have no application.

19. The decisions in Sumitramma v. Subbadu, AIR 1943 Mad 22 (Z21), and Bala Lingayya v. Nallayya, AIR 1944 Mud 62 (Z22), do not, in our opinion, lay down the correct law. Though reference was made before King J., in AIR 1943 Mad 22 (Z21), to the decisions of the Calcutta and Allahabad High Courts in AIR 1930 Cal 32 (24), and Ram Khelawan Singh v. Maharaja of Benares, AIR 1930 All 15 (Z23), no sufficient grounds are stated in the judgment for not following those decisions.

As already stated, we are inclined to follow the view of the Allahabad and the Calcutta High Courts, which is in accordance with the decisions of the Madras High Court and this Court already discussed above. Both the decisions proceed on the footing that the requirements of Section 115 oft the Evidence Act have to be complied with before founding an estoppel.

In our opinion, that assumption is wrong. As already stated there in another principle of estoppel dealt with by Mr. Bigelow and that accords, in our opinion, with justice, equity and good conscience. We are therefore clearly of opinion that by reason of the appellant's conduct he is estopped from contending that the suit is not maintainable in the civil Court and that the Rent Controller alone has jurisdiction to pass an order for eviction.

20. We are in entire agreement with the Sub-ordinate Judge on the construction of the term of the lease deed. There is no provision in the lease deed entitling the appellant to obtain abatement of rent on account of tile stoppage of business.

21. The last question that has to be considered is whether the payment pleaded by the appellant under Exhibit B-68 is true. (After discussion of evidence His Lordship concluded). In the circumstances, we agree with the subordinate Judge that the payment under Exhibit B-68 is not true.

22. In the result, we confirm the judgment of the Subordinate Judge and dismiss the appeal with costs.

23. Before concluding the judgment, we wish to express our appreciation for the great assistance received from the learned advocates on both sides in regard to the legal questions arising for decision in the case.


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