Ganapatia Pillai, J.
1. This Civil Revision is directed against the appellate order of the Court of Small Causes at Madras in H.R.A. No. 78 of 1957. That appeal was preferred against I.A. No. 1120 of 1956 in H.R.C. No. 4376 of 1956. The petitioner before me, the landlady of the premises, occupied by the respondent before me, as a tenant, applied to the Rent Controller for eviction on the ground of arrears in payment of rent. After counter-statement was filed in the procedings the Rent Controller acting under the Proviso to Section 7, Clause (2) of Madras Buildings (Lease and Rent Control) Act, 1949, directed the tenant to pay all arrears of rent up to date. After this order had been made the proceeding came on for hearing on 31st December, 1956. That day the following order was passed by the Rent Controller:
Parties by counsel. Arrears not paid as directed. Respondent is absent when called thrice. Proceedings are stopped and eviction is ordered under Section 7-A(4) of the Madras Rent Control Act.
Thereafter the tenant filed I.A. No. 1120 of 1956 to set aside the order of eviction passed on 31st December, 1956. This I.A. was disposed of by the following order passed by the Rent Controller on 7th January, 1957:
The applicant was represented by his counsel and the order of eviction was passed under Section 7-A(4) of the Madras Rent Control Act. Hence this application is rejected as not maintainable.
Against this order an appeal was preferred under Section 12 of the Act which came on for hearing before the Second Judge of the Court of Small Causes, Madras, on 24th April, 1957. That day the following order was passed:
Rs. 10 paid today and accepted. The matter will be sent to R.C. for a finding as to whether the default was wilful. Parties to appear before R.C. 8th May, 1957. Finding by 4th July, 1957.
The tenant failed to appear before the Rent Controller in the remanded proceeding and he thereupon submitted a finding on 12th June, 1957, to the effect that the default in payment of rent was wilful. When the appeal was taken up after the submission of the finding the tenant was absent and the appeal was dismissed. Two successive applications to restore the appeal to file made by the tenant were also dismissed for default of his appearance. Ultimately the Chief Judge of the Court of Small Causes called for a fresh finding from the Rent Controller. The Rent Controller then submitted a finding that the default in payment to rent was not wilful and accepting this finding the Chief Judge of the Court of Small Cause allowed the appeal and set aside the order of eviction.
2. Two points are raised by the learned Counsel for the petitioner. The first is that the appeal to the Small Causes Court is itself incompetent as it was directed against the order in I.A. No. 1120 of 1956 and not the order of the Rent Controller directing eviction of the tenant. It may be remembered that I.A. No. 1120 of 1956 was an application to set aside the alleged ex parte order of eviction passed by the Rent Controller though his counsel was present when that order was passed. In the absence of an appeal against the substantive order, the contention urged is, that the appellate Court had power only to allow I.A. No. 1120 of 1956 which would result in reopening of the original order. The point made by Mr. Venkatadri for the petitioner is that the original order was not passed ex parte and, therefore I.A. No. 1120 of 1956 was itself incompetent.
3. The next point made by him is that in the appeal against the order passed in I.A. No. 1120 of 1956 the appellate Court had no jurisdiction to call for a finding whether the default in payment of rent, on which the application for eviction was based, was wilful. His contention is that, that was not the basis for eviction passed by the Rent Controller under Section 7-A(4) of the Act. It will be seen that Section 7-A(4) of the Rent Control Act deals with payment of arrears as a condition precedent to the hearing of the tenant on the objection raised by him. The Act empowers the Rent Controller in a case in which eviction is sought on the ground of default in payment of rent to give an opportunity to the tenant to pay off all the arrears up to date, Non-compliance of this order results in a termination of the proceeding and making an order directing the tenant to put the landlord in possession of the building. This has nothing to do with the original default on which the application for eviction is based. The finding called for by the appellate Court in this case related to the original default which was not the basis on which the order was passed under Section 7-A(4).
4. The conduct of the tenant in this case after the proceeding for eviction was instituted clearly shows that he was grossly negligent in the conduct of his defence. Innumerable opportunities were given to him both by the Appellate Court and by the Rent Controller. On none of these occasions he turned up except on the last occasion when he appeared before the appellate Court when a fresh finding was called for and also before the Rent Controller who submitted a revised finding. There can be no doubt that the tenant has been grossly negligent. But the discretion exercised by the appellate Court to excuse all this dilatoriness on the part of the tenant is not attacked before me. As already observed the points taken are that the appeal itself was incompetent and in such an appeal a finding could not have been called for as regards the original default in payment of rent. An order of remand on a point not arising before the Rent Controller is patently incompetent. The same view was taken by Ramaswami, J., in Narayanaswami Reddiar v. Dhanraj Sowcar : (1958)1MLJ77 . If an order of remand was made without jurisdiction the mere acceptance of the costs awarded, Rs. 10, by the landlord could not have the effect of curing the defect in the order. It will be seen that the Second Judge of the Court of Small Causes in the first instance directed a remand of the case and called for a finding on the question whether the default to pay rent was wilful and as a condition of the order called upon the tenant to pay costs Rs. 10 to the landlord and this sum was paid and accepted. Counsel for the respondent contended that the acceptance of this costs by the landlord was sufficient to prevent him from questioning the competency of the Court which passed that order. If the Court had no jurisdiction to pass the order the mere acceptance of that order by one party will not prevent him from questioning the validity of that order. Authority for this is found in Narayanaswami Ayyar v. Subramania Pillai : (1935)69MLJ673 ,with which I am in respectful agreement. The result is the order for eviction passed by the Rent Controller on 31st December, 1956, had become final, no appeal against that orderhaving been preferred in time. That order was not passed in the absence of the tenant because his counsel was present. I.A. No. 1120 of 1956 was, therefore, incompetent as it proceeded on the footing that the order for eviction was an ex parte order. The appeal against that I.A. was equally incompetent and the appellate Court had no jurisdiction to direct a remand or call for a finding in such appeal. The order of the Chief Judge of the Court of Small Causes is, therefore, set aside and the order of the Rent Controller, dated 31st December, 1956, is restored. No costs in the Revision. The tenant is given three months' time from today for vacating the premises.