1. The appellant is the defendant, a medical practitioner, who from 1st April 1942 rented a house in Bezwada from the plaintiff, respondent at a rent of Rs. 50. There was at the time evacuation from Madras, where the defendant was in practice and also to a lesser extent from Bezwada owing to a war scare from Japanese military potentialities which led to a decrease in rents in both places. The appellant, in this house he rented in Bezwada, started a medical practice and a nursing home which he is said to be still carrying on. On 31st July 1948 his landlord filed Original Suit No. 580 of 1943 after notice to quit or pay enhanced rent of Rs. 140 a month, for ejectment and recovery of rent at this rate from 1st April 1942. The District Munsif of Bezwada dismissed the suit so far as it related to ejectment in view of Section 7(A) (1) and (2), House Rent Control Order, 1941, as amended in 1944 holding that it deprived him of jurisdiction to pass a decree for eviction. He however gave the plaintiff a decree for eight months' arrears of rent at Rs. 50 a month, the admitted unpaid rent due at this rate; and allowed him (sic tenant ?) to reserve his right to recover in a separate suit the balance of about Rs. 51 the tenant claimed in respect of repairs, etc., he had expended on the house. The landlord filed an appeal in which the Subordinate Judge remanded the suit for disposal as regards the relief for eviction holding on the strength of Moothaliondam Chetti v. Venkatesam Chetti : AIR1945Mad386 that the District Munsif had jurisdiction to pass a decree for eviction, Section 7A of the Amended Act which came into force on 11th July 1944 having no application to this suit filed on 31st July 1943. This appeal is against that order of remand.
2. The legal position is now concluded by a Bench decision in Vittil Muhammadunny v. M. Unniri : (1949)1MLJ452 by Rajamannar C. J. and Raghava Rao J who very recently held this year that the jurisdiction of a civil Court to entertain a suit for eviction and pass a decree in such a suit for eviction of a tenant is not expressly or impliedly taken away by any of the provisions of the Madras Non-Residential Buildings Rent Control Order, 1942, despite Clause 8 thereof which lays down that the tenant shall not be evicted therefrom whether in execution of a decree or otherwise, and whether before or after the termination of the tenancy except in accordance with the provisions of this clause. That Act also contained a clause to the effect that a landlord wishing to evict a tenant in possession shall apply to the Controller for a direction in that behalf. These provisions are reproduced in Section 7A, House Rent Control Order, 1945, and also in Section 7 (1), Madras Buildings (Lease and Rent Control) Act, 1946. The learned Judges overruled the decision of Chandrasekhara Aiyar J. in Mahmood v. Kerala Corporation Ltd. : AIR1945Mad181 , where he held that there was by these provisions an ouster of the jurisdiction of civil Courts. The order of remand is therefore correct in law as settled by this decision of the Bench, but for another legal point raised in this appeal which requires separate consideration.
3. Though the point was not specifically taken before the lower appellate Court, it is one substantially of law raised on the admitted material on record and, as it appears to me, can be urged and decided at any stage. The point is this, namely, that plaintiff by his subsequent conduct after the decree in his suit O. S. No. 580 of 1943, dated 19th September 1944, is now precluded from prosecuting it on the basis of a termination of the tenancy. The record shows that he filed his appeal, A. S. No. 227 of 1944, in the first instance on 24th November 1944 in the Sub-Court, Bezwada, with a very limited scope, merely to set aside the reservation of the right of the tenant to sue separately for the recovery of Rs. 51. On his appeal he paid a court-fee of only Rs. 5-9-0. The plaintiff then filed an application before the House Rent Controller on 22nd December 1944 for fixation of a fair rent at Rs. 140 from 1st May 1942 and for an order for ejectment if the tenant failed to pay. In his application, H. R. C. No. 84 of 1944 he prayed, to quote his own language:
'In the event of the respondent not ready and willing to pay fair or standard rent, for ejectment of the respondent from the said bungalow.'
Ultimately on 17th July 1945, the House Rent Controller fixed a fair rent for the house at Rs. 115 per month from 22nd December 1944, the date of his application. After obtaining this order the landlord then proceeded to file two interlocutory applications, Nos. 835 and 836 of 1945 to have his appeal amended by additional reliefs for ejectment and damages. These applications along with the appeal No. 227 of 1944 were transferred to the Sub-Court, Masulipatam and numbered there as Appeal No. 87 of 1946. The amendments were allowed, the deficit court-fee was paid and the judgment of remand under appeal passed.
4. It is strenuously contended for the appellant that the landlord's application before the House Rent Controller for a fair rent was clearly based on an admission that the tenancy was still continuing and had not been terminated in law; and that it is not open to him to press in any civil Court for eviction on the basis of termination of the tenancy by a notice to quit. Mr. V. V. Srinivasa Ayyangar has argued contra at some length that the landlord was, as I understood his position, at perfect liberty to pursue all remedies open to him under the House Rent Control Order, quite independently of his ordinary rights in a civil Court and that whatever position he takes before the House Rent Controller he cannot be deprived of his right to obtain a decree for eviction in a civil Court. My attention has been drawn by the learned advocate for the appellant to the English decision, Hartell v. Blackler, 1920-2. K. B. 161: 89 L. J. K. B. 838 on the question of waiver of notice. It is illuminating and relevant. A tenant whose tenancy had been determined by notice to quit wrote to his lessor enclosing money for rent due since the expiry of the notice. The solicitors on behalf of the lessor sent the following reply:
'Our client does not recognise you as her tenant, and we will retain the money for the time on account of use and occupation of her premises but not as rent.'
It was held that notwithstanding the terms of that letter the acceptance and retention of the money operated as a waiver of the notice and a recognition of a continuance of the tenancy. There can be no doubt that in the present case the landlord obtained the fixation of a fair rent and incidentally a substantially enhanced rent from the House Rent Controller on the basis of his recognition of the continuance of the tenancy. I am quite unable to see how a landlord who applies under the House Rent Control Order for the fixation of a fair rent to be paid by a tenant in occupation, on getting this done, can then continue to prosecute any suit in a civil Court for eviction on the basis of a termination of the tenancy on preceding facts. I can find nothing in Vittil Muhammadunny v. M. Unniri : (1949)1MLJ452 which lends any support to two legally inconsistent and incompatible positions being open to a landlord. The landlord may prosecute a suit for eviction on the basis of termination of his tenancy under the ordinary law, but he cannot do so after obtaining a fixation of fair rent by the House Rent Controller on an application on the basis of a clear and specific recognition of the continuation of the tenancy.
5. For these reasons, I hold that it is not open to this landlord to prosecute any further his suit for eviction in the ordinary civil Court.
6. The appeal is allowed and the remand judgment of the Subordinate Judge is set aside with coats throughout. The Subordinate Judge quite rightly held that the District Munsif was wrong in permitting the defendant to reserve his rights to counter claim Rs. 51-4-7 by a separate suit. This finding is not challenged nor indeed can it be canvassed in this appeal. The result is that the District Munsif's decree is restored with only this modification. Leave refused.