DR P TIRUMAL RAO Vs. TRANGANATHA MUDALIAR

JUDGEMENT

(1.) On the respondent's application under the Madras Buildings (Lease and Rent Control) Act, 1946, the Additional Rent Controller, Madras, passed on 30 March, 1948, an order for eviction against the petitioner. The respondent took out proceedings to execute the order and went with the bailiff to take delivery of the premises on 22nd April, 1948. On that day the petitioner passed a letter to the respondent in the following terms: As you have brought a warrant of possession against me in the above E.P. for the ground-floor No. 93, Thagaraja Rao, Thyagarayanagar, I request you time for today and I assure you that I will give complete possession of the said place by to- night.

(2.) The petitioner however did not give possession but filed an appeal and obtained an order for stay of delivery on 24 April, 1948. When the appeal came on for hearing before the Third Judge of the Court of Small Causes, the respondent raised a preliminary objection that the appeal was not maintainable because of the above letter. The learned Judge upheld the objection and dismissed the appeal as not maintainable. He held that in that letter the petitioner had accepted the order of the Rent Controller and that it was not open to him thereafter to impeach it by filing an appeal, in other words, that he could not be permitted to approbate and reprobate. The petitioner seeks a writ of certiorari from this Court to quash the order dismissing his appeal.

(3.) Prima facie there is nothing in the letter expressly waiving the right of appeal, a right which the petitioner was entitled to under Section 12 of the Act. We are-unable to hold that there is any implied undertaking not to file an appeal which can be gathered from the language of the letter. The petitioner was faced with a warrant of possession and the prospect of being turned out of the house unceremoniously by the bailiff, He therefore requested time till the night to surrender possession. Merely because he prayed for and obtained time to comply with the order of eviction passed by the Rent Controller it cannot be said that he had elected to treat the order of the Rent Controller as final or that he had abandoned his right of appeal.