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Dr. C.S. Krishnaswamy Ayyar Vs. Mohanlal Binjani and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported in(1948)2MLJ559
AppellantDr. C.S. Krishnaswamy Ayyar
RespondentMohanlal Binjani and anr.
Cases ReferredLissenden v. C.A.V. Bosoh Limited
Excerpt:
- - the learned chief judge, from his finding already quoted, has distinctly found that the attitude of the respondent at that time was that he was in no mood to accept any tender in any form by the petitioner. in the present case, had the respondent received the cover and intimated his objections to the tender now put forward, it would have been perfectly open to the petitioner to make a fresh tender, as by that date the petitioner had still 15 days' time during which to make a further tender. it has been recognised under english law ever since the well known wade's case (1601) 5 co. this the respondent failed to do. the principles on which a court interferes by issuing a writ of certiorari to quash have been fairly well settled in england and have been followed in india. 313,.....ordersatyanarayana rao, j.1. this is an application by a tenant to issue a writ of certiorari to call for the records in h.r.a. no. 665 of 1947 in l. dis. no. 2800 of h.r.c., 1947, on the file of the chief judge, court of small causes, madras and to quash the order passed by the learned judge on the 10th march, 1948, reversing the order passed by the house rent controller, madras.2. the petitioner is a tenant of house no. 13, north mada street, mylapore and was let into possession by the previous owner before the respondent purchased it by a sale deed dated 7th november, 1946. he was paying a monthly rent of rs. 75 at the date of the purchase by the respondent. on the 15th december, 1946, the respondent issued a notice, ex. d-3, through his lawyer to the petitioner calling upon him to.....
Judgment:
ORDER

Satyanarayana Rao, J.

1. This is an application by a tenant to issue a writ of certiorari to call for the records in H.R.A. No. 665 of 1947 in L. Dis. No. 2800 of H.R.C., 1947, on the file of the Chief Judge, Court of Small Causes, Madras and to quash the order passed by the learned Judge on the 10th March, 1948, reversing the order passed by the House Rent Controller, Madras.

2. The petitioner is a tenant of house No. 13, North Mada Street, Mylapore and was let into possession by the previous owner before the respondent purchased it by a sale deed dated 7th November, 1946. He was paying a monthly rent of Rs. 75 at the date of the purchase by the respondent. On the 15th December, 1946, the respondent issued a notice, Ex. D-3, through his lawyer to the petitioner calling upon him to vacate the house and also to at torn to him and to pay the arrears of rent for the month of November, 1946. Upon receipt of this notice the petitioner sent Ex. P-1, dated 31st December, 1946, along with a cheque for a sum of Rs. 150 and in that letter the petitioner denied the right of the respondent to evict him and intimated to him that the cheque for Rs. 150 was enclosed, Rs. 75 as payment of the arrears of rent for the month of November, 1946 and the balance of Rs. 75 as advance rent for a month. The petitioner seems to have followed, the practice of paying six months' rent in advance to the respondent's vendor and in this letter he enquired the respondent whether he would also be willing to follow the same practice which would save the petitioner the worry of sending the amount every month. The respondent received the cheque and the letter, but sent no reply. He waited for some time and as he did not hear anything from the respondent, the petitioner sent a further cheque for a sum of Rs. 508 with a letter Ex.-D-1, dated 15th January, 1947, through his advocate and in that letter it was stated that as per the settlement of account appended to the letter the sum of Rs. 508 covered by the cheque was advance rent till the end of June, 1947. This letter, however, was returned to the advocate of the petitioner as ' refused.' The petitioner and the respondent seem to have met together some time in the beginning of April and as a result of conversation, between them, the petitioner sent Ex. P-2 dated 30th April, 1947, along with a cheque for Rs. 525. In this letter reference was made to the conversation and to the willingness of the respondent expressed to the petitioner at the conversation to receive the amount. In pursuance of this agredment, it was alleged in the letter, that the cheque for Rs. 525 was sent partly representing the arrears due up to that date and partly as advance for future rent. This letter and the cheque were received by the respondent but after some deliberation and under legal advice the respondent returned the cheque to the petitioner on the 7th May, 1947. The ground for refusing to accept the cheque Was that the rents which accrued due from 1st December, 1946, were not paid or tendered on the due dates. This refusal was subsequently followed by the application of the respondent on the 12th May, 1947, before the House Rent Controller, Madras for eviction of the petitioner on the sole'ground that the rent was not paid or tendered by the petitioner, on the due dates and the petition was based on Section 7, Sub-clause (2)(i) of the Madras Buildings (Lease and Rent Control) Act, XV of 1946. The petitioner contended before the House Rent Controller that there was a valid tender of the rent by a cheque sent on 15th January, 1947, which was refused by the respondent and that subsequently he sent again another cheque for Rs. 525 in April, 1947, which was received by the respondent but was returned later. He therefore contended that there was no default on his part and that there was a valid tender of rent. According to the allegations in the counter affidavit filed by the petitioner before the House Rent Controller, the main object of the respondent was to devise some means to secure the eviction of the petitioner from the house and that with this object in view, he had suppressed the previous tender and its refusal and filed the petition, The House Rent Controller accepted the case of the tenant, and found that the rents for December, 1946, and subsequent months were tendered by a cheque on the 15th January, 1947, and that it was improperly refused by the landlord. He therefore declined to grant eviction.

3. Against this order the landlord preferred an appeal to the Chief Judge, Small Cause Court. Before the learned Judge the arguments were more elaborate and various questions of law were raised. He agreed with the House Rent Controller in holding that the landlord evaded to receive the letter of 15th January, 1947, and the cheque but that the tender was not valid for two reasons: firstly that th e advance remittance of rent by cheque in January, 1947, was not payment of rent for the months of January 1947 to April 1947 since the landlord did not accept the cheque in which case he would have been under an obligation to treat the advance payment as a loan in his hands available for appropriation towards rent as and when it accrued due; secondly that it was not a valid tender even in respect of the rent due and accrued for the month of December 1946, as the cheque included also an amount of rent for future months which the appellant before him was not bound to accept. According to him, therefore, there was no valid tender of rent even for the month of December, 1946. In answer to the contention urged on behalf of the landlord that as the cheque sent in January, 1947, was enclosed in a registered envelope and even if there was a refusal of the letter he should not be fixed with knowledge of the contents and should not be deemed to have had knowledge of the tender, the learned Judge found, to quote his own words, as follows:

This and the next contention as to the sufficiency of a cheque as tender are concluded by the necessary inference which I draw from the facts to the effect that the appellant was not willing at that stage to accept tender in any form from the respondent. In such circumstances it has been held that the ignorance of the appellant about the contents of the registered letter and the particular form which the tender took are immaterial. Venkatarama Iyer v. Gopalakrishna Pilial (1928) 56 M.L.J. 255 : I.L.R. 52 Mad. 322.

4. Two questions arise for consideration on the arguments advanced on behalf of the petitioner and the respondent; firstly, whether there is an error of law apparent on the face of the record and secondly whether this Court has jurisdiction to interfere with the order of the learned Chief Judge by issuing a writ of certiorari to quash.

5. The first point raises the question of the validity of the tender made by the petitioner in January, 1947. It may now be taken as established by the two orders that the tenant did issue a notice Ex. P-1 in a registered cover enclosing a cheque for Rs. 508 and that it was refused by the respondent and was returned back to the petitioner. The learned Chief Judge, from his finding already quoted, has distinctly found that the attitude of the respondent at that time was that he was in no mood to accept any tender in any form by the petitioner. In view of this finding, the argument advanced on behalf of the respondent that he had no knowledge of the contents of the latter and that the tender was in a form not acceptable to him and comprised a larger amount than was legally due on that date, namely, one month's rent, loses much of its force. It was immaterial, so far as he was concerned, whether he actually knew the contents or not as his mind was sealed once for all and it was equally immaterial whether the amount was tendered by cheque and comprised future rent also. To such a situation the principle laid down in Venkatarama Aiyar v. Gopalakrishna Pillai (1928) 56 M.L.J. 255 : I.L.R. 52 Mad. 322, aptly applies. It was there stated:

His first contention rests on the broad proposition that tender of a cheque is not a valid tender. As an universal proposition that is hardly correct. Tender by cheque will be valid tender if the person to whom it is tendered is willing to receive payment by a cheque. But in the present case the negotiations never got so far. The plaintiff refused at the outset to receive the money in any form or shape. It was open to him, had he allowed the matter to go on and the second defendant had tendered a cheque, to refuse the cheque and demand cash, and there was still time for the second defendant to go and bring cash. But instead of that he refused to have the payment in any shape and by this tactics put it out of his power to receive payment in cash, and, therefore, to object now to the form of the payment. It is quite clear from the evidence that his objection was not to the form of the payment but to payment in any form. Where a party thus refuses to entertain the idea of payment at all and puts it out of the power of the tenderor to offer payment in a manner acceptable to the creditor, the offer of performance by a person then able to carry out the promise in its entirety is a valid tender in spite of the form of it being itself not legal tender. The tender, whether by cash and draft, or by a cheque, was a valid tender unless the plaintiff refused the form of it; the plaintiff did not refuse the form of it, and therefore it was valid.

In that case there was first an attempt to tender the money personally at the Cosmopolitan Club, by the second defendant in the case who was a subsequent purchaser but the plaintiff refused to take the money from the second defendant. The second defendant thereafter sent registered notices twice enclosing a cheque for the amount. The plaintiff refused to receive both the notices and he tried to justify that refusal on the ground that the covers gave no indication that they contained a cheque. It was found in that case that the plaintiff was determined not to receive payment from the second defendant under any circumstances. In the present case, had the respondent received the cover and intimated his objections to the tender now put forward, it would have been perfectly open to the petitioner to make a fresh tender, as by that date the petitioner had still 15 days' time during which to make a further tender. The respondent kept quiet until after a later meeting sometime in April, 1947.

6. Section 38 of the Indian Contract Act embodies the principles applicable to tender under the Indian Law. The word 'tender' does not occur in the section. It requires that the offer to perform a promise should be unconditional, must be made at the proper time and place and must give a reasonable opportunity to the promisee to examine the thing that was offered. The principles embodied in that section are substantially the same that govern tender under English law. It has been recognised under English law ever since the well known Wade's case (1601) 5 Co. Rep. 114-a that a tender may be made of a greater sum of money than the amount due. It was open to the creditor to accept so much of it as is due to him and reject the rest. The authorities on the point were exhaustively considered by Seshagiri Aiyar, J., in Subramania Aiyar v. Narayanaswami Vandaya (1917) 34 M.L.J. 439. Objection to the form of the tender may be waived by the creditor either expressly or impliedly. If the creditor rejects the tender on other grounds he is deemed to have waived the objection as to the form of tender. A creditor who denies the tender is not entitled to question its sufficiency or validity-see Mahomed Mozaffer Ali v. Asraf Ali 25 Ind.Cas. 93. The case very strongly relied upon by the respondent is the decision of the Lahore High Court in Hira Lal v. Khizer Hayat A.I.R. 1936 Lah. 168. On the strength of this decision it was contended before us that if a single cheque was tendered for more items than one while only one of of which was due at the time and the others were not to be payable till a future date, as the cheque was one and indivisible, the tender cannot be said to be an unconditional tender and therefore it was invalid. If the interests of the creditor are not affected in any manner by the tender of a single cheque for more than one liability, it was open to the creditor to tell the debtor that he should split up the cheque or pay only so much as was then due. On the facts of that case it is clear that the interest of the mortgagee to whom the tender was made would seriously be affected if the tender under the circumstances of that case was treated as valid.

7. The mortgagee was authorised to remain in actual possession of the hypotheca for a period of 25 years from the date when he took possession of the property after redeeming the first mortgage. Owing to some litigation the second mortgagee was not able to obtain possession till 1918. It was found in that case that the mortgagee was entitled after deducting some period to continue in possession, till 25th April, 1939. Long before this date the mortgagor tendered the amount due under the mortgage which carried interest and also a further sum in respect of an amount paid to the second mortgagee. One of the contentions raised was that the stipulation in the mortgage deed postponing the date of redemption was a clog on the equity of redemption and that it was invalid. That contention was overruled, and it was found that the mortgagee was entitled to remain in possession for the full period of 25 years, i.e., till the 25th April, 1939. The tender, therefore, of the amount due under the mortgage in 1926, according to the learned Judge, had not the effect of estopping the running of interest as the mortgagee intended to treat the mortgage money as an investment to earn interest. The tender therefore, under those circumstances, cannot be deemed to be a valid tender as he was not entitled at all to make a tender, and the only question that arose for consideration in that case was whether the tender had the effect of stopping the interest from running. The decision, therefore, lends no support to the contention urged on behalf of the respondent that the tender of the rent that accrued due on 15th January, 1947, along with future rents was an invalid tender.

8. The position, therefore is, that on the face of the judgment of the learned Judge, the only conclusion possible is that there was a valid tender of the rent by the petitioner to the respondent.

9. The legal position of an advance of rent in the hands of the landlord was also discussed. The question arose for consideration in England in cases where the tenant paid rent to the lessor without knowledge that there was already an assignment of the term by the lessor to a third party. The effect of such payment had to be considered. In such cases it has been held that rent paid before it was due was not a fulfilment of the obligation to pay rent under the covenant, but is in fact an advance to the landlord with an implied agreement that as and when the rent became due he would treat the advance as a fulfilment of the obligation under the covenant. It may not be strictly correct to call it a loan to the landlord but it is merely an advance or a deposit in his hands. In cases where there was an assignment and a payment by the tenant to the assignor without the knowledge of the assignment, the tenant would be bound to pay it over again to the assignee-see De Nicholls v. Saunders L.R. (1870) 5 Common pleas Cases 589. If there is no complication of an assignment and the tenant pays the rent in advance to the landlord and the landlord accepts it, the landlord will be bound to appropriate the advance in his hands towards the rent as and when it accrues due. It is of course open to the landlord to decline the offer and ask the tenant to pay it only on the due dates. Had the respondent received the letter by which the cheque was tendered in January, 1947, it would have been open to him to consider the matter in all its aspects and to have intimated to the petitioner in proper time his choice so as to enable the tenant to comply with his conditions. This the respondent failed to do.

10. It has been strenuously urged on behalf of the respondent that even if there is an error of law in the judgment of the learned Chief Judge of the Small Cause Court, it was not open to this Court to interfere by issuing a writ of certiorari. The question of the limits of jurisdiction of a superior Court to interfere with the decision of an inferior tribunal by a writ of certiorari to quash has been fully canvassed before us. The principles on which a Court interferes by issuing a writ of certiorari to quash have been fairly well settled in England and have been followed in India. The difficulty is not so much in understanding these principles, as in applying them to the facts of a particular case. The principles have been analysed in the second edition of Halsbury's Laws of England (Vol. 9, Hailsham Edition) from paragraphs 1484 to 1493 under four heads. A clear case for interference is where there is want of jurisdiction arising from the nature of the subject or from the absence of some essential preliminary requisite. Some times the jurisdiction of the inferior tribunal to act is dependant upon the establishment of some collateral fact and such tribunal or Court by a wrong decision in respect of such fact cannot confer upon itself a jurisdiction which it does not otherwise possess. In such a case, it has been held, that it will be open in the proceedings to quash by way of a writ to decide the correctness of the decision of the inferior 'tribunal on that collateral fact. The decision of Lord Esher, M.R. in The Queen v. Commissioners for Special Purpose of Income-tax (1888) 21 Q.B.D. 313, enunciates clearly the principles governing such cases. The defect of jurisdiction may also relate to the constitution of the tribunal as where a person who was not entitled to be a judge in his own cause takes part in the adjudication or the adjudication of the inferior Court may be vitiated by collusion, corruption or fraud. Lastly, errors apparent on the face of the proceedings are always treated as errors of jurisdiction for the purpose of quashing by issuing a writ of certiorari. It is under this ground that the petitioner wants to bring the present case, while the respondent maintains that the errors contemplated even under this heading are only errors of jurisdiction and not mere errors of law. The, petitioner relies upon the passage in paragraph 1491 of Halsbury's Law's of England, while the respondent relies upon paragraph 1493. According to the respondent, there is a conflict between the two paragraphs and in the light of two decisions which will be referred to presently, he maintains that the law as stated in paragraph 1491 must be treated as having been overruled. Paragraph 1491 states as follows:

Where upon the face of the proceedings themselves it appears that the determination of the inferior Court is wrong in law, certiorari to quash will be granted. Thus, certiorari to quash will be granted, where the charge before the Magistrates, as stated in the information, does not constitute an offence punishable by the Magistrates, or where it does not amount in law to the offence of which the defendant is convicted, or where an order is made which is unauthorised by the finding of the Magistrates.

These are all illustrations of errors apparent on the face of the proceedings and involving merely a question of law. From the proceedings as set out in the order itself it would be patent that the conclusion of the tribunal was not warranted by law. In other words, the order is a ' Speaking order ', an expression used by Earl Cairns, L.C. in Overseas of the Poor of Walsall v. London and North Western Railway Co. (1878) 4 A.C. 30. It is no doubt not necessary in all cases to set out the evidence or facts on which the decision was based, but if once they are so set out and if from the evidence set out or from the facts found the conclusion does not follow in law it is open to interfere with the order and quash it by issuing a writ of certiorari. As pointed out by Earl Cairns, L.C. in the case of Overseas of the Poor of Walsall v. London and North Western Railway Co. (1878) 4 A.C. 30 at 40.

All that was necessary was that the Court of Quarter Sessions, in making its order, should not make it an unspeaking or unintelligible order, but should, in some way state upon the face of the order, the elements which had led to the decision of the Court of Quarter Sessions. If the Court of Quarter Sessions stated upon the face of the order, by way of recital, that the facts were so and so, and the grounds of its decisions were such as were so stated, then the order became on the face of it, a speaking order; and if that which was stated upon the face of the order, in the opinion of any party was not such as to warrant the order, then that party might go to the Court of Queen's Bench and point to the order as one which told its own story and ask the Court of Queen's Bench to remove it by certiorari, and when so removed, to pass judgment upon it whether it should or should not be quashed.

The two decisions in The Queen v. Tomlinson (1872) L.R. 8 Q.B. Cases 12 and The Queen v. Kay (1873) L.R. 8 Q.B. Cases 324, also illustrate the same point. In both these decisions, on the face of the orders it was clear that the bastardy orders could not be maintained in law. The error was patent on the face of the order.

11. Of course the error which is apparent should not be a mere accidental or formal error which could always be set right by amendment; it must be a substantial error and one which goes to the root of the matter. But as pointed out in paragraph 1493 of Halsbury's Laws of England:

Where the proceedings are regular upon their face, and the Magistrates had jurisdiction, the superior Court will not grant the writ of certiorari on the ground that the Court below has misconceived a point of law. When the Court below has jurisdiction to decide a matter, it cannot be deemed to exceed or abuse its jurisdiction, merely because it incidentally misconstrues a statute, and admits legal evidence or rejects legal evidence or misdirects itself as to the weight of evidence or convicts without evidence. Nor will certiorari be granted to quash the decision of an inferior Court within its jurisdiction on the ground that the decision is wrong on matters of fact and the Court will not hear evidence impeaching the decision on the facts.

12. The question therefore to determine is whether the present order falls under the one category or the other. As pointed out already, some light is thrown on the meaning of the expression 'Error apparent on the face of the proceedings' by the decision of Earl of Cairns, L.C., referred to above. This expression had to be construed by the Privy Council in another context, with reference to proceedings in arbitration. Lord Dunedin after examining the decisions on the point explains the expression in Champsey Bhara and Co. v. Fivraj Ballo Spinning and Weaving Co. (1923) 44 M.L.J. 706 : L.R. 50 IndAp 324 : I.L.R. 47 Bom. 578 in these terms:

An error in law on the face of the award means, in their Lordships' view, that you can find in the award or a document actually incorporated thereto, as for instance, a note appended by the arbitrator stating the reasons for his judgment some legal proposition which is the basis of the award ' and which you can then say is erroneous. It does not mean that if in a narrative a reference is made to a contention of one party, that opens the door to seeing first what that contention is, and then going to the contract on which the parties' rights depend to see if that contention is sound.

13. Bearing these principles in mind we have no hesitation in holding that in the present case, as pointed already, there was an error apparent on the face of the order of the Chief Judge, Small Causes Court, Madras.

14. It is now necessary to refer to the decisions relied on by the learned advocate on behalf of the respondent in support of his contention that the statement of the law in paragraph 1491 of Halsbury's Laws of England must be taken to have been overruled by subsequent decisions. The first decision is Rex v. Minister of Health (1939) 1 K.B. 232. The point for decision in that case was whether the claimant was entitled to a superannuation allowance under Section 11 of the Asylums Officer's Superannuation Act, 1909. The claimant's claim was rejected by the Committee of Visitors. He then appealed to the Minister of Health who upheld his contention and granted Superannuation allowance under Section 11 of the Act. The Committee of Visitors of the Mental Hospital who were directed to pay the allowance obtained a rule nisi by a writ of certiorari to quash the determination of the Minister of Health who was the appellate authority. The Divisional Court discharged the rule and the decision of the Divisional Court was affirmed by the Court of Appeal. The only question on which there was difference of opinion was upon the interpretation of Section 11 of the Act. Greer, L.J., referred to paragraph 1493 of Vol. 9 of Halsbury's Laws of England (second edition) and quoted the passage already extracted and it was pointed out by the Lord Justice that all that could be urged against the determination of the appellate authority was that his order misconstrued the words in Section 11 and that did not entitle the visitors to apply for certiorari. The other Lord Justices agreed with that view and Slesser, L.J., observed (at page 249):

It is sufficient to say that the appellants fail to show that the Minister acted outside his jurisdiction. He may or may not have come to an erroneous decision within his jurisdiction, which was to decide this dispute. Therefore he may be in a position to say, when the matter has to be decided, if it ever has, as a matter of substantive law, that he is right. But for the. purposes of the present case, it is enough to say that the appellants have failed to show that the Minister exceeded his jurisdiction, they should not have obtained the rule nisi in the Divisional Court which they did obtain, and the Divisional Court were right in discharging the rule when it came before them for argument.

There is nothing in this judgment to indicate that the statement of the law in paragraph 1491 is erroneous. It is a clear case which fell within the principle laid down in paragraph 1493. The next case is also a decision of the Court of Appeal, Rex v. Rent Tribunal for Paddington (1947) All. E.R. 448. Under the Furnished Houses (Rent Control) Act, 1946, the Minister of Health had the right to appoint tribunals for different districts to determine as between a landlord and a tenant whether the rent paid is a fair and reasonable one or not. The tribunal reduced the contract rent of five pounds a week to three pounds six shillings. Certiorari was moved on the ground that the tribunal did not consider certain matters which they were bound to consider in deciding whether the rent was fair or not. Objection was raised that the tribunal being vested with discretion to determine the fair rent, it could not be interfered with by cerilorari. Lord Goddard, C.J., enunciated the principles by which the question of jurisdiction has to be determined. At page 449 it was stated as follows:

Certiorari is a very special remedy, and when it is sought in order to bring up the order of a judicial tribunal, the question which has to be considered is whether or not the tribunal were acting within their jurisdiction. ' Acting within their jurisdiction ' is an expression which has been applied to more than one set of circumstances. It is, for instance, applied to a case where it is said that a Court is not properly constituted. It may be that justices or other members of a Court are alleged to be disqualified or to have a bias in the matter which should have resulted in their not sitting and in those circumstances this Court has never hesitated to grant the writ to bring up the order to be quashed, because the members of a tribunal had no jurisdiction to give a decision in the case, but it is very old and definite law that certiorari to quash proceedings only lies for want of jurisdiction or where the order is bad on its face. It may be bad on its face, because, on looking at it, the Court can see that the tribunal, in making it, acted outside their jurisdiction, or it may be shown that they decided some question which was not before them.

From this passage it was argued that the learned Judge pointed out only two grounds on which an order may be attacked as being bad on its face, i.e., either because on the face of it was obvious that the tribunal acted outside their jurisdiction or that they decided some question which was not before them. These are the only two grounds, it is urged, on which an order may be shown to be bad on its face. We are, however, of opinion that the learned Judge is not there enumerating exhaustively all the grounds under which an order may be bad on its face. The learned Judge was only trying to illustrate what may be deemed to be ' bad on its face.' At page 450 it is again observed:

It follows from the fact that the tribunal were exercising the functions with which they had been entrusted by the Act of Parliament that it must have been within their jurisdiction to consider it and to give a decision. What we are really being asked to say is either that they have misconstrued the statute or that they have rejected evidence or misdirected themselves in some way, but even if they came to a decision without evidence, that is not a matter on which certiorari can be granted, and it follows that this application must fail.

From the conclusion of the learned Judge so stated, it is clear that it was a case which clearly fell within the principles laid down in paragraph 1493 of Halsbury's Laws of England. The decision, therefore, does not in any manner affect the principles laid down in paragraph 1491.

15. It only remains to refer to two decisions of this Court in Mahomed Ashan Maracair v. Bijili Sahib (1933) 66 M.L.J. 367 : I.L.R. 57 Mad. 571, and Sankaranarayana v. Miran Sahib : AIR1934Mad357 . We do not think that either of these decisions helps the respondent. These two decisions, in our opinion, do not carry one farther than the principles which have been so fully set out in Halsbury's Laws of England. It is unnecessary therefore to deal with these decisions further.

16. One other argument urged on behalf of the petitioner may. also be considered. The petitioner contended that reading the provisions of Section 7 and the other provisions of the Madras Buildings (Lease and Rent Control) Act, 1946, the question of tender was really in the nature of a collateral fact which had to be established before the jurisdiction to grant an order for eviction could be exercised, and that therefore it was open to us to canvass the propriety of the findings of fact arrived at by the appellate authority. We do not, however, agree in this view of the sections. Section 7 of the Madras Buildings (Lease and Rent Control) Act, 1946, precludes the landlord from evicting a tenant in any other manner than that provided by the section and for the reasons mentioned in it. The mode is to approach the House Rent Controller with a petition and the petition can only be filed on one or other of the grounds mentioned in Clause (2) of that section. If those grounds are established before the House Rent Controller, then the Controller would direct the tenant to put the landlord in possession of the building; if not, the petition, would be rejected. These grounds really are not collateral matters which have, to be established before the House Rent Controller is called upon to enter into an enquiry. They constitute the merits of the application. We are, therefore, unable to accept this contention of the petitioner.

17. Lastly we must notice a contention very faintly urged on behalf of the respondent that as after the order of the Chief Judge was pronounced time was granted by consent of parties for vacating the premises, the petitioner who had the advantage of such extended period should be deemed to have elected to abide by the decision of the appellate authority and that it was not now open to him to question its legality. No question of election in such a case arises and the matter is really concluded by the authority of the House of Lords in Lissenden v. C.A.V. Bosoh Limited (1940) A.C. 412. The principle of approbate and reprobate cannot be made applicable to the rights of a litigant to an appeal either from a judgment or from an award. There is no scope for the application of the doctrine of election in such circumstances. It is not a conditional order under which the petitioner accepted any benefit so as to preclude him from disputing its validity. The principle of election, it may be pointed out, would be applicable only when there are alternative rights.

18. The result is the rule nisi is made absolute; the order of the Chief Judge, Small Cause Court, is quashed which of course results in restoring the order of the House Rent Controller. The petitioner is entitled to his costs here. Advocate's fee Rs. 100.


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