1. This revision petition is from an order of the Chief Judge of the Small Cause Court made on an ejectment petition. The lower Court refused an order for possession. The agreed facts are that on the 7th February, 1944, the petitioner referred to hereafter as the landlord gave notice to one Subbiah his tenant to quit by the 28th February. On the 18th of March, an ejectment suit was filed against Subbiah. It may be here stated that without the knowledge of the landlord, Subbiah had sub-let to one Kotiah and Kotiah had sub-let in June 1943 to the respondent. There was a decree in the ejectment suit No. 143 of 1944 for possession on the 31st of March, 1944, possession to be given on the 14th of April. It was discovered on the 11 th of April that,the respondent was in possession. On the 14th of April, the bailiff went to obtain possession and was obstructed by the respondent. He said he was a sub-tenant under Subbiah whereupon this application of the 21st of April was made to the Small Cause Court. Judgment was reserved on the 4th of July, and it was delivered on the 1st of August.
2. Under the provisions of Section 7-A of the Madras Hbuse Rent Control Order which was in force at the time of the filing of the suit, of the application, for possession and of the obstruction and also at the time of the application to the. Small Cause Court, it was at the option of a tenant in possession if he wished to extend the period of his tenancy by not less than six months and not more than twelve months to give the landlord not less than seven days notice of his intention and by the delivery of such notice, the tenancy should be deemed to be so extended. Action therefore had to emanate from, the tenant. In this case, no notice was given by Subbiah nor by the respondent and proper notice was given by the petitioner to Subbiah. The respondent could have no better rights than Subbiah had, and on that state of facts, the petitioner, the landlord, was entitled to an order for possession. But the learned Judge when he delivered the judgrnent on the 1st August, 1944, based his decision not on what was the state of law at all material times but on what was the law at the time of an amending order dated 11th July, 1944, that is to say, the date of its publication in the Gazette. That order is as follows:
A tenant in possession of a house shall not be evicted therefrom, cvhether 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.
Section 7-A (2) says:
A landlord wishing to evict a tenant in possession shall apply to the Controller for a direction in that behalf.
The rest of the sub-section sets out that if the Controller is satisfied that certain conditions are in existence, then an order for ejectment can be made. The outstanding difference between the old Section 7-A and the new Section 7-A is that under the old section the initiative had to come from the tenant if he wished to stay; otherwise he should be given notice. Under the new section, a tenant has complete security of possession so long as he wishes to stay unless the landlord can get an order from the Controller to evict him for good and sufficient cause set out in Sub-section (2). In my view the learned Judge had no jurisdiction to invoke this order which was not then the law. This is an order which takes away the substantive rights of a subject and ought not to be construed to operate retrospectively unless it was so intended to operate. There is no indication of the intention that the order should so be construed or was intended so to operate. The new section makes a very striking change. It has been argued that it only affects the procedure of the Court and therefore may be considered retrospectively. That is not so. It gives far beyond the procedure of the Court. It affects the action out of Court by and the rights of every landlord and tenant in the Presidency. Having held that the Judge has materially erred in the exercise of his jurisdiction it follows that the petitioner is entitled to succeed and obtain an order for possession.
3. I must, however, refer to an argument that was addressed to me by the learned Counsel for the respondent based on the decision of my learned brother, Chandra-sekhara Ayyar, J., in Mahmood v. Kerala Corporation, Ltd. (1945) 1 M.L.J. 44, where the learned Judge made the following observations:
Sub-clause 7-A as it now stands after the July amendment, provides that the landlord wishing to evict a tenant in possession shall apply to the Controller for a direction in that behalf and it is for the Controller to make up his mind after satisfying himself on certain matters whether the landlord shall be put in possession or not. This amendment, though it came into force after the suit was filed, must be held to govern us because what we have to see is the true position on the date when the order of eviction is sought and not on the date when the suit was filed, as was held by Lush, J., in Harcourt v. Lewe. (1945) 1 M.L.J. 44
I am unable to accept counsel's argument that Chandrasekhara Ayyar, J., was laying down there that what the Court has to consider is the state of the law at the time the matter is before the Court or the appellate Court or the Privy Council as the case may be. The law might alter materially during the period of litigation. My learned brother when discussing what should guide the Court in ascertaining ' the true position ' was referring to a decision of Lush, J., that the circumstances (not the law) actually before the Court at the time of an application for possession must betaken into account. In that particular case an application under the English Rent Restriction Act for possession was made based on certain facts. When the case actually came before the Court, the circumstances had altered and the Court When making an order was naturally concerned with the circumstances at that time and not at the time the application was filed. This must manifestly be right and proper, Otherwise the Court might find itself compelled to make an order for possession of a house which at the time the application came before it was not required by the landlord at all Lush, J., was concerned with the facts relevant to the application and was not considering the law. If it were otherwise, every wellknown principle underlying the law relating to the retrospectiveness of statutes would have gone bv the board. My learned brother decided the case in Mahmood v. Kerala Corporation, Ltd. : AIR1945Mad181 . on the basis that the tenant had exercised his option before the amendment and thererfore could not be ejected. If and when an application for possession comes, before the Controller, teh Controller should apply his mind to the circumstances actually and presently before him to enable him to make or refuse an order, and it would be for one side or the other to point out that the application for ejectment had lost its force owing to the fact that since the application had been made, difficulties which were then not in existence had arisen or difficulties that were in existence had disappeared. I am not however concerned with any such position in this case.
4. On the law as it affected the petitioner's application, he was entitled to an order for possession and this petition is allowed with costs. The order of the lower Court already gave the petitioner his costs below.