1. Both the Rent Controller and the Appellate Tribunal, namely, the Court of Small Causes, have ordered the eviction of the petitioner on the ground that he had after the commencement of the Madras Act (XV  of 1946) sublet the premises to one Krishnan Nair without the written consent of the land-lord, the respondent before us. The petitioner, the tenant, seeks to have the order of the Appellate Tribunal quashed by a writ of certiorari on two grounds.
2. The first ground is that the application for eviction on which the order against him was made was itself liable to be rejected in limine under Section 10 of the Act because a prior application made by the landlord was dismissed on 3rd November 1948 in the following circumstances. The landlord filed an application for eviction on substantially the same grounds as those alleged in the later application; but, apparently, having regard to the judgment of a learned Judge of this Court which held that due notice terminating the tenancy was necessary before an application for eviction could be maintained even under the Act, he applied to withdraw this petition with liberty to file a fresh petition after due notice terminating the tenancy. The petition was allowed to be withdrawn and was dismissed. Under Section 10 of the Act, the Controller shall summarily reject any application for eviction which raises substantially the same issues as have been finally decided in a former proceeding under the Act or under the corresponding provisions of the Madras House Rent Control Order, 1945 or the Madras Non-residential Building Rent Control Order, 1945, between the same parties or between parties under whom they or any of them claim. It is contended by the learned counsel for the petitioner, Mr. V.S. Rangaswami Aiyangar, that the issues now raised in the present application must be deemed to have been finally decided by the order of dismissal on the prior application. In support of this contention, he cited to us three decisions of this Court in Muthu Rama Reddi v. Motilal Daga : AIR1938Mad113 , Chidambaram Nadar v. Rama Nadar : AIR1937Mad385 and Allagappa Chettiar v. Ramakrishna Aiyar : (1941)2MLJ493 . All these decisions are concerned with the construction of the words 'final order' in Article 182 (5) of Schedule 1 to Limitation Act. They have absolutely no bearing on the determination of the question in the present case, namely, whether issues arising in an application for eviction can be deemed to have been finally decided by an order dismissing the application because the petitioner withdraws it. It was held by a Bench of this Court in C. M. P. No. 8229 of 1948 that when an application for eviction is dismissed for default of appearance or for non-prosecution a subsequent application is not liable to be rejected under Section 10 of the Act. It was therein observed that the words 'finally decided' in Section 10 clearly implied that the prior application should have been decided on the merits. It is obvious in this case that there was no decision, still less a final decision on any of the issues which arose for determination in the prior application and which also arise in this application. This contention must, therefore, be overruled.
3. It was nest contended that though there was a concurrent finding that Krishnan Nair was let into the premises by the petitioner, after the commencement of the Act, nevertheless the petitioner is not liable to be evicted on that ground because there was an agreement between the petitioner and the landlord prior to the commencement of the Act which entitled the petitioner to sublet the premises at any time to any one. As rightly pointed out by the learned Judge of the Court of Small Causes, this plea was not specifically pleaded. But apart from this technical objection we find that there is a more substantial objection to this argument. We are now only concerned with the language of Section 7 (2) (ii) (a). Under that provision, the landlord is entitled to obtain an order for eviction of his tenant if the tenant has after the commencement of the Act without the written consent of the landlord transferred his right under the lease or sublet the entire or any portion of the leased building. If, therefore, there is a transfer or subletting after the commencement of the Act, the tenant can be saved only by a written consent of the landlord from the consequence, namely, eviction. It is not necessary for us to determine in this case whether the written consent of the landlord need be necessarily of a date after the commencement of the Act. Prima facie, it appears that even the written consent, given before the commence, meat of the Act, if it is subsisting at the time of any subletting after the Act, might be sufficient to enable the tenant to plead successfully to the landlord's application for eviction. But in this case as the Rent Controller points out, there is no written consent of the landlord either before or after the commencement of the Act. Therefore the second contention of the petitioner also fails. In the result this application is dismissed with costs (of respondent 1).