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A. Moses Pillai Vs. M.K. Govindan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported inAIR1948Mad346; (1948)1MLJ51
AppellantA. Moses Pillai
RespondentM.K. Govindan
Cases ReferredBaulchandra Chakravarthi v. Nistarini Debi I.L.R.
Excerpt:
- - an appeal to the subordinate judge of coimbatore was also unsuccessful. if i fail to deliver possession to you of the house within the prescribed period......plaintiff conceding that the defendant cannot be evicted in view of the provisions of the madras house rent control order, 1941, which was made applicable to the district of coimbatore from 17th march, 1942.2. the defendant executed in favour of the plaintiff what is described as a house rent chit on 4th february, 1942, the principal terms of which are the following: the tenancy was in the first instance to last for one year and terminate on 3rd february, 1943. during this period rs. 40 per month was to be paid by way of rent. the defendant was to deliver possession of the house to the plaintiff on 3rd february, 1943. then occurs the following sentence, on which considerable reliance is placed on behalf of the plaintiff:if i fail to deliver possession to you of the house within the.....
Judgment:

Govindarajachari, J.

1. The appellant in this second appeal is the owner, and the respondent is the tenant, of a house in Coimbatore. The suit was for obtaining pos-session of the house and for the recovery of Its. 70 as arrears of rent due till the date of the plaint. Out of this amount, Rs. 25 was said to be the balance of rent due for five months from 3rd February, 1943 to 3rd July, 1943; and Rs. 45 was, claimed as the rent which was payable from 3rd July, 1943 to 3rd August, 1943. It was admitted in the plaint that from 3rd February, 1943 to 3rd July, 1943, the defendant paid at the rate of Rs. 40 per month; but the plaintiff claimed that he was entitled to Rs. 45 per month even for those 5 months and that was why he claimed Rs. 25 as the balance due in respect of that period. The learned District Munsiff of Coimbatore dismissed the suit. An appeal to the Subordinate Judge of Coimbatore was also unsuccessful. Hence, the present second appeal, which is confined to the claim for rent, the plaintiff conceding that the defendant cannot be evicted in view of the provisions of the Madras House Rent Control Order, 1941, which was made applicable to the district of Coimbatore from 17th March, 1942.

2. The defendant executed in favour of the plaintiff what is described as a house rent chit on 4th February, 1942, the principal terms of which are the following: The tenancy was in the first instance to last for one year and terminate on 3rd February, 1943. During this period Rs. 40 per month was to be paid by way of rent. The defendant was to deliver possession of the house to the plaintiff on 3rd February, 1943. Then occurs the following sentence, on which considerable reliance is placed on behalf of the plaintiff:

If I fail to deliver possession to you of the house within the prescribed period. I am from the date of such lapse bound to pay rent at the rate of Rs. 45 a month until possession is delivered to you.

3. It is common ground that by this clause the defendant agreed to pay rent at the rate of Rs. 45 per month after 3rd February, 1945.

4. As already stated rent was paid at the rate of Rs. 40 per month for five months from 3rd February to 3rd July, 1943. The learned District Munsiff held that rent at that rate was accepted by the plaintiff without protest. But as no finding was given by the learned Subordinate Judge I called for a finding from him as to whether the receipt of Rs. 40 per month by the plaintiff was on protest or without protest. The learned Subordinate Judge has now returned a finding that the plaintiff received these amounts on protest. This, being a finding of fact, is not challengeable in second appeal.

5. It is, however, argued by Mr. T.R. Ramachandran, counsel for the defendant-respondent, that the stipulation which I have set above, is unenforceable in view of Clause 7. (a) of the Madras House Rent Control Order, 1941, which runs as follows:

After the commencement of this order, an increase in rent shall be permissible only where some addition, improvement or alteration, not included in necessary repairs or repairs which are usually made to houses in the local area, has been carried out at the landlord's expense since the rent was fixed.

6. The language of Clause 7(a) is peremptory and permits an increase in rent only where some addition, improvement or alteration such as is described in that clause has been carried out at the landlord's expense after the fixation of rent. It does not permit an increase in any other case. The stipulation as to the payment of rent of Rs. 45 per month could, under the rent chit came into operation only after 3rd February, 1943, by which time the Madras House Rent Control Order was in operation in Coimbatore. In support of his argument, that the crucial date for the purpose of Clause 7(a) is when the stipulation as to increase of rent comes into actual operation and not the date of the agreement itself, Mr. Ramachandran relied upon the decision of the Court of Appeal in Goldsmith v. Orr 89 L.J.K.B.D. Dealing with Section 4(1) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1919, Bankes, L.J. and Scrutton, L.J. (Warrington, L.J., dissenting) held that rent is increased within the meaning of that section at the date when the increase became effective, and not at any earlier date at which an increase has been agreed upon between landlord and tenant.' Mr. J.S. Vedamanickam, counsel for the appellant, attempted to distinguish this case on the ground that the English statute contains the words ' Notwithstanding any agreement to the contrary ' and that there are no similar words in Clause 7 (a) of the Madras House Rent Control Order of 1941. This argument I am unable to accept. Even without the use of those words, the Legislature can indicate that its provisions shall apply notwithstanding that the parties contracted otherwise and in my opinion, there is such an indication in Clause 7(a). The clause allows an increase only in one contingency which of Course does not apply to the case before me. The obvious conclusion to draw from the language of Clause 7(a) is that the Legislature was intending to interfere with rights created by contracts entered into before or after the order and that on grounds of high policy it would prohibit any increase of rent save in the only case for which provision is made in the rest of the clause.

7. In Chandu v. Sankaran : AIR1941Mad558 Leach, C.J. and Krishnaswami Ayyangar, J., had occasion to deal with the language of Section 20 of the Malabar Tenancy Act which in several respects is similar to the language of Section 7(a) of the Madras House Rent Control Order, 1941. Section 20 of the Malabar Tenancy Act provides that

No suit for eviction of a customary verumpattamdar, kuzhikanamdar, or kanamdar shall lie at the instance of his landlord except on the following grounds

and then follows an enumeration of those grounds. One of the arguments addressed in that case was that since the words ' notwithstanding any contract to the contrary ' did not occur in Section 20, the contracts which were entered into before the commencement of the Malabar Tenancy Act must be taken to have been saved. This argument was rejected and the learned Judges pointed out that the language used by the Legislature was sufficient to express its intention to nullify contracts previously entered into. They described the language employed in Section 20 of the Malabar Tenancy Act ' as plain and peremptory '--a description which seems to me to be quite appropriate and applicable to Clause 7(a) of the Madras House Rent Control Order. There is no particular formula or set language which the Legislature has to use in order to indicate that it intends to interfere with the contractual rights of parties. It is true that in several statutes the words suggested by Mr. Vedamanickam find a place. It cannot, however, be said that other language equally effective and equally clear cannot be employed for expressing the same intention.

8. The appellant's counsel next referred to certain observations of the Divisional Court in Wilcock v. Booth 89 L.J.K.B. 864 where Bray, J., observed as follows:

In construing these emergency statutes, regard must, of course, as in other statutes, first be had to the plain meaning of the statutes themselves as a matter of construction, but we think that, restricting as they did, the ordinary rights of individuals arising from their mutual contracts and relationships, the Acts should not be needlessly extended beyond the particular mischief which they are designed to avoid or remedy.

9. The learned Judges were, in that case, dealing with Section 1, Sub-section 1(c) of the Increase Rent (Amendment) Act, 1919. Under that provision, it was obligatory on the part of a landlord seeking the eviction of his tenant to offer alternative house accommodation. It was argued that where the premises previously occupied consisted of a dwelling house and a shop the landlord was under an obligation to offer alternative house accommodation and alternative shop accommodation and that it was not sufficient if he offered alternative house accommodation only. The observations I have set out above were made in rejecting that argument. I do not consider the decision in Wilcock v. Booth 89 L.J.K.B. 864 or the observation in it as' throwing any light on the question now at issue, as, in my opinion the language of Clause 7(a) of the Madras House Rent Control Order, 1941, is quite clear and unambiguous.

10. The decision in Baulchandra Chakravarthi v. Nistarini Debi I.L.R. (1905) Cal. 136 cited on behalf of the appellant turned on the provisions of the Bengal Tenancy Act of 1885, and lays down no principle which can be invoked in the present context.

11. Mr. Vedamanickam then argued that when there is a single contract providing for a certain rate of rent during a specified period and a higher rate of rent there-after, it is not permissible to treat the former part as valid and the latter as invalid. It is quite true that if the matter rested in contract merely, it will not be permissible for a party to a contract to claim that a certain portion of it is invalid while the rest of it is valid since every part of the contract must be regarded as consideration for every other part. But here we have the Legislature saying in unequivocal language that in contracts providing for rent it is not open to parties to stipulate for any rent higher than what was being collected prior to the coming into operation of the Madras House Rent Control Order, 1941. The invalidity of the stipulation as to the higher rate of rent arises by reason of the statute. In these circumstances I do not see why the defendant cannot contend that notwithstanding that he had agreed to pay rent at the rate of Rs. 45 per month after 3rd February, 1943, he is entitled to the benefit of Clause 7(a) of the Madras House Rent Control Order, and that he is consequently liable to pay only at the rate obtaining prior to the coming into operation of the order.

12. The plaintiff cannot, therefore, sustain his claim for the larger rent and the second appeal is dismissed with costs.


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