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 12 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 mon October, on or before the last day of the month next following, that is to say, on or before the 30 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 9 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 6 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 1 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 a November, on the 5 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 18 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.