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Sha Devichand Moolchand Vs. Sha Dhanraj Kantilal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported in(1948)1MLJ276
AppellantSha Devichand Moolchand
RespondentSha Dhanraj Kantilal
Excerpt:
- - the ground alleged by him was that the respondent had failed to pay the monthly rental of rs. he was of the opinion that the landlord, having demanded enhanced rent for the property, could not complain if the tenant did not tender the original rent. 10. it may be pointed out that the learned judge failed to record any finding on the important plea of the respondent contained in paragraph 5 of his original counter-statement, namely, that there was a proper tender before the due date on two occasions. we consider this matter should receive the attention of the rule committee at an early date so that rules may be made prescribing the forms for the issue of rule nisi, return, as well as rule absolute......court of small causes, madras, made by him in h.r.a. no. 446 of 1947 from the order of the house rent controller in h.r.c. no. 7277 of 1946.2. the petitioner before us is the son of one sha moolchand jodhajee who owned premises no. 201, govindappa naicken street, g.t., madras, in which the respondent was carrying on business as a tenant. on the 12th december, 1946, jodhajee filed a petition before the rent control officer, madras, under section 7(2)(1) of madras act xv of 1946, seeking to evict the respondent from the premises. the ground alleged by him was that the respondent had failed to pay the monthly rental of rs. 225 for the month of october on or before the last day of the month next following, that is to say, on or before the 30th november, 1946. he alleged that the rent for.....
Judgment:

Rajamannar, Officiating C.J.

1. This is an application to issue a writ of certiorari to quash the order of the learned Chief Judge of the Court of Small Causes, Madras, made by him in H.R.A. No. 446 of 1947 from the order of the House Rent Controller in H.R.C. No. 7277 of 1946.

2. The petitioner before us is the son of one Sha Moolchand Jodhajee who owned premises No. 201, Govindappa Naicken Street, G.T., Madras, in which the respondent was carrying on business as a tenant. On the 12th December, 1946, Jodhajee filed a petition before the Rent Control Officer, Madras, under Section 7(2)(1) of Madras Act XV of 1946, seeking to evict the respondent from the premises. The ground alleged by him was that the respondent had failed to pay the monthly rental of Rs. 225 for the month of October on or before the last day of the month next following, that is to say, on or before the 30th November, 1946. He alleged that the rent for the months of October and November, 1946, was sent to him only on the 5th December, 1946 and received by him on the 9th December and was refused and was returned by him. He also alleged that he was himself carrying on business in a rented building, No. 88, Nyniappa Naicken Street, Madras, and that he required the premises in question bona fide for his own business. It is common ground that this latter circumstance by itself would not have justified the landlord in seeking to evict the tenant. On the 6th January, 1947, the respondent filed a counter-statement in which the main defence urged was that the landlord had demanded in the middle of October, 1946, an enhanced rent of Rs. 337-8-0 with effect from the 1st October, 1946 and there was a discussion between the parties on the subject of the demand for an enhanced rent and that in the beginning of November the respondent tendered to the petitioner the rent of Rs. 225 but the landlord refused to take it. It was further stated that when the landlord's bill-collector came towards the last week of November for collection of rent at the enhanced rate, the respondent tendered to him the rent for October and November at Rs. 225 per month but the bill-collector refused to receive the amount. Reference was made to arbitration and on the intercession of one Javerchand Kasaji an agreement was reached between the parties by which Rs. 280-8-0 was fixed as the rent payable. The respondent alleged that in spite of this agreement when a cheque was sent by him at the rate of Rs. 280-8-0 for the months of October and November on the 5th December, 1946, the cheque was refused and returned.

3. On the 22nd January, 1947, before the application came on for hearing Jodhajee, the father of the petitioner, died. The present petitioner thereupon Sled an affidavit before the Rent Controller on the 18th February, 1947, stating that his father had died and that he was his only son and legal representative entitled. to be brought on record. He reiterated the material allegations in the original petition filed by his father, namely, that the respondent had committed wilful default in payment of rent for October, 1946 and that he was liable to be evicted, and that he (the petitioner) was carrying on business in a rented building and was put to considerable trouble and he required the premises for his own business.... The concluding paragraph in the affidavit is as follows: I pray I may be brought on record as the legal representative of the petitioner herein and the respondent may be evicted.' The respondent filed a short counter-statement urging that the petition was not maintainable as there was no provision in the Act to bring on record legal representatives' to continue the proceedings instituted already and the petitioner's only remedy was to file a fresh petition. He pleaded that the statement filed by him already may be read as part of his second statement.

4. The Rent Controller by his order, dated the 11th April, 1947, directed the respondent to put the petitioner in possession of the premises on the ground that the rent for the month of October was not paid or tendered on or before the 30th November, 1946. He refused to believe the case of the respondent that there was a tender in November. The Rent Controller assumed that the present petitioner could be brought on record as the legal representative and in effect he treated him as the petitioner in the case. There was an appeal by the respondent to the learned Chief Judge of the Court of Small Causes. The learned Judge held that when the father of the petitioner died, the only course open to the petitioner as his legal representative was to file a separate application before the Rent Controller on the same ground and the application was incompetent after the death of the original petitioner, by which apparently he meant that the application could not be proceeded with. On this finding the appeal was allowed; but as he was invited to give a finding on the merits, he briefly dealt with them. He was of the opinion that the landlord, having demanded enhanced rent for the property, could not complain if the tenant did not tender the original rent. He did not go into the question whether any tender was made in November as pleaded by the respondent. This application is to quash the order of the learned Chief Judge.

5. The learned advocate for the petitioner contended that though there was no provision either in the Act or in the rules made thereunder incorporating or making applicable any of the provisions of the Code of Civil Procedure, neverthe-less the principle of those rules would apply because the Rent Controller must be deemed to be a Court of civil jurisdiction within the meaning of Section 141 of the Code as the Rent Controller was invested with powers to adjudicate upon civil rights of parties. We are not inclined to agree with this contention. It is sufficient to refer on this point to the observations of Sir Frederick Gentle, C.J. and Govindarajachari, J., in the recent case of Abdul Khadir Hadjiarv. A.K. Murthy : (1947)2MLJ482 . The learned Chief Justice observed as follows:

It is, in my view, to be regretted that the provisions of the Code have not been made applicable to proceedings under the Control Act, and that, when the Provincial Government, exercising the power conferred by Section 17 of the Act, made rules of procedure, they did not in those rules do what would have been, I think, desirable; they did not enable the provisions of the Code, so far as applicable and relevant to be made use of in proceedings under the Control Act. In the absence of rules, it was argued, nevertheless the principles of them must be applied. I am unable to accept that contention.

6. At another place he says:

I have already expressed the view that in the absence of incorporation of the provisions of the Code of Civil Procedure in the rules of procedure for the tribunals under the Control Act, there is no justification for the application of the principles of those provisions, otherwise it would mean applying those provisions when they are not made applicable.

7. We respectfully agree with these observations. We likewise express regret that the rules do not provide for the application of at least some of the important rules of procedure contained in the Code of Civil Procedure to proceedings under the Rent Control Act.

8. But in this case we are not much impressed with the technical objection taken that a separate application should have been filed by the petitioner instead of an application to be brought on record to continue the petition filed by his father. The affidavit of the petitioner dated the 18th February, 1947, to which reference has already been made contains all the material particulars required to be mentioned in an application praying for eviction and it appears to be the height of technicality to disregard this fact and insist upon a formal petition for the same purpose. The question whether it would be competent for the legal representative to be brought on record as such in an application before the Rent Controller in every case need not be decided by us. We desire however to point out that it appears to be necessary for a rule to be made providing in appropriate cases for the bringing on record of legal representatives on the death of the original applicant.

9. We therefore hold that the order of the learned Chief Judge of the Court of Small Causes dismissing the application of the petitioner on the ground that it was incompetent and not maintainable is wrong and must be quashed. The result would be that the appeal must be heard afresh.

10. It may be pointed out that the learned Judge failed to record any finding on the important plea of the respondent contained in paragraph 5 of his original counter-statement, namely, that there was a proper tender before the due date on two occasions. It would be necessary for the learned Judge to go into this question before he comes to a final decision on the matter.

11. The learned Advocate-General, who appeared for the Chief Judge of the Court of Small Causes to whom notice was directed to issue by order of this Court, drew our attention to the fact that there are no forms prescribed for the issue of rule nisi and for other notices in proceedings for the issue of a writ of certiorari and that in many cases the tribunal, whether it be a Judge of a Court or Board of (Commissioners or an officer of the Government is not made a party to an application for the issue of a writ of certiorari. We are of the opinion that it is absolutely necessary that the tribunal to quash whose order the application for the issue of a writ is taken should be a party because without notice issuing to such tribunal, the records of the proceedings cannot be brought up to this Court. The writ of certiorari is the process by which the King's Bench Division in Britain, 5n the exercise of the superintending power over inferior jurisdictions, requires the judges or officers of such jurisdictions to certify or send proceedings before hem into the King's Bench Division, whether for the purpose of examining into the legality of such proceedings, or for giving fuller or more satisfactory effect to them than could be done by the Court below. (See Short and Mellor's Crown Practice, page 14). That being so, a writ of certiorari must issue to the inferior Court. Whether the officer or authority concerned should also be required to appear in person or by pleader is a matter which may depend on the circum-tstances of each particular case. We consider this matter should receive the attention of the Rule Committee at an early date so that rules may be made prescribing the forms for the issue of rule nisi, return, as well as rule absolute.

12. In the result the rule will be made absolute. The respondent will pay the costs of this application to the petitioner.


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