SHA DEVICHAND MOOLCHAND Vs. SHA DHANRAJ KANTILAL

JUDGEMENT

(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.) 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.