DR C S KRISHNASWAMY AYYAR Vs. MOHANLAL BINJANI

JUDGEMENT

(1.) This is an application by a tenant to issue a writ of certiorari to call for the records in H.R.A. No. 665 of 1947 in L. Dis. No. 2800 of H.R.C., 1947, on the file of the Chief Judge, Court of Small Causes, Madras and to quash the order passed by the learned Judge on the 10 March, 1948, reversing the order passed by the House Rent Controller, Madras.

(2.) The petitioner is a tenant of house No. 13, North Mada Street, Mylapore and was let into possession by the previous owner before the respondent purchased it by a sale deed dated 7th November, 1946. He was paying a monthly rent of Rs. 75 at the date of the purchase by the respondent. On the 15 December, 1946, the respondent issued a notice, Ex. D-3, through his lawyer to the petitioner calling upon him to vacate the house and also to at torn to him and to pay the arrears of rent for the month of November, 1946. Upon receipt of this notice the petitioner sent Ex. P-1, dated 31 December, 1946, along with a cheque for a sum of Rs. 150 and in that letter the petitioner denied the right of the respondent to evict him and intimated to him that the cheque for Rs. 150 was enclosed, Rs. 75 as payment of the arrears of rent for the month of November, 1946 and the balance of Rs. 75 as advance rent for a month. The petitioner seems to have followed, the practice of paying six months rent in advance to the respondent's vendor and in this letter he enquired the respondent whether he would also be willing to follow the same practice which would save the petitioner the worry of sending the amount every month. The respondent received the cheque and the letter, but sent no reply. He waited for some time and as he did not hear anything from the respondent, the petitioner sent a further cheque for a sum of Rs. 508 with a letter Ex.-D-1, dated 15 January, 1947, through his advocate and in that letter it was stated that as per the settlement of account appended to the letter the sum of Rs. 508 covered by the cheque was advance rent till the end of June, 1947. This letter, however, was returned to the advocate of the petitioner as " refused." The petitioner and the respondent seem to have met together some time in the beginning of April and as a result of conversation, between them, the petitioner sent Ex. P-2 dated 30 April, 1947, along with a cheque for Rs. 525. In this letter reference was made to the conversation and to the willingness of the respondent expressed to the petitioner at the conversation to receive the amount. In pursuance of this agredment, it was alleged in the letter, that the cheque for Rs. 525 was sent partly representing the arrears due up to that date and partly as advance for future rent. This letter and the cheque were received by the respondent but after some deliberation and under legal advice the respondent returned the cheque to the petitioner on the 7 May, 1947. The ground for refusing to accept the cheque Was that the rents which accrued due from 1 December, 1946, were not paid or tendered on the due dates. This refusal was subsequently followed by the application of the respondent on the 12 May, 1947, before the House Rent Controller, Madras for eviction of the petitioner on the sole ground that the rent was not paid or tendered by the petitioner, on the due dates and the petition was based on Section 7, Sub-clause (2)(i) of the Madras Buildings (Lease and Rent Control) Act, XV of 1946. The petitioner contended before the House Rent Controller that there was a valid tender of the rent by a cheque sent on 15 January, 1947, which was refused by the respondent and that subsequently he sent again another cheque for Rs. 525 in April, 1947, which was received by the respondent but was returned later. He therefore contended that there was no default on his part and that there was a valid tender of rent. According to the allegations in the counter affidavit filed by the petitioner before the House Rent Controller, the main object of the respondent was to devise some means to secure the eviction of the petitioner from the house and that with this object in view, he had suppressed the previous tender and its refusal and filed the petition, The House Rent Controller accepted the case of the tenant, and found that the rents for December, 1946, and subsequent months were tendered by a cheque on the 15 January, 1947, and that it was improperly refused by the landlord. He therefore declined to grant eviction.

(3.) Against this order the landlord preferred an appeal to the Chief Judge, Small Cause Court. Before the learned Judge the arguments were more elaborate and various questions of law were raised. He agreed with the House Rent Controller in holding that the landlord evaded to receive the letter of 15 January, 1947, and the cheque but that the tender was not valid for two reasons: firstly that th e advance remittance of rent by cheque in January, 1947, was not payment of rent for the months of January 1947 to April 1947 since the landlord did not accept the cheque in which case he would have been under an obligation to treat the advance payment as a loan in his hands available for appropriation towards rent as and when it accrued due; secondly that it was not a valid tender even in respect of the rent due and accrued for the mon December, 1946, as the cheque included also an amount of rent for future months which the appellant before him was not bound to accept. According to him, therefore, there was no valid tender of rent even for the month of December, 1946. In answer to the contention urged on behalf of the landlord that as the cheque sent in January, 1947, was enclosed in a registered envelope and even if there was a refusal of the letter he should not be fixed with knowledge of the contents and should not be deemed to have had knowledge of the tender, the learned Judge found, to quote his own words, as follows: This and the next contention as to the sufficiency of a cheque as tender are concluded by the necessary inference which I draw from the facts to the effect that the appellant was not willing at that stage to accept tender in any form from the respondent. In such circumstances it has been held that the ignorance of the appellant about the contents of the registered letter and the particular form which the tender took are immaterial. Venkatarama Iyer V/s. Gopalakrishna Pilial (1928) 56 M.L.J. 255 : I.L.R. 52 Mad. 322.