CAPTAIN S SUNKAVALLY Vs. SINGARAJU MALAPARAJU

JUDGEMENT

(1.) The appellant is the defendant, a medical practitioner, who from 1 April, 1942, rented a house in Bezwada from the plaintiff-respondent at a rent of Rs. 50. There was at the time evacuation from Madras, where the defendant was in practice and also to a lesser extent from Bezwada owing to a war scare from Japanese military potentialities which led to a decrease in rents in both places. The appellant in this house he rented in Bezwada started a medica practice and a nursing home which he is said to be still carrying on. On 31 July, 1943, his landlord filed original Suit No. " 580 of 1943 after notice to quit or pay enhanced rent of Rs. 140 a month, for ejectment and recovery of rent at this rate from 1 April, 1942. The District Munsif of Bezwada dismissed the suit so far as it related to ejectment in view of Section 7 (a) (1) and (2) of the House Rent Control Order, 1941, as amended in 1944 holding that it deprived him of jurisdiction to pass a decree for eviction. He however gave the plaintiff a decree for eight months arrears of rent at Rs. 50 a month, the admitted unpaid rent due at this rate; and allowed him to reserve his right to recover in a. separate suit the balance of about Rs. 51 the tenant claimed in respect of repairs, etc., he had expended on the house. The landlord filed an appeal in which the Subordinate Judge remanded the suit for disposal as regards the relief for eviction holding on the strength of Moothalinda Chetti V/s. Venkalesam Chetti (1945) 1 M.L.J. 441, that the District Munsif had jurisdiction to pass a decree for eviction, Section 7-A of the amended Act which came into force on 11 July, 1944, having no application to this suit filed on 31 July, 1943. This appeal is against that order of remand.

(2.) The legal position is now concluded by a Bench decision in Muhammadunny v. Melepurakkal Unniri (1949) 1 M.L.J. 452, by Rajamannar, C.J., and Raghava Rao,J., who very recently held this year that the jurisdiction of a civil court to entertain a suit for eviction and pass a decree in such a suit for eviction of a tenant is not expressly or impliedly taken away by any of the provisions of the Madras Non-Residential Buildings Rent Control Order, 1942, despite Clause (8) thereof which lays down that the tenant shall not be evicted there from whether in execution of a decree or otherwise, and whether before or after the termination of the tenancy except in accordance with the provision of this clause. That Act also contained a clause to the effect that a landlord wishing to evict a tenant in possession shall apply to the Controller for a direction in that behalf. These provisions are reproduced in Section 7-A of the House Rent Control Order, 1945, and also in Section 7(1) of the Madras Buildings (Lease and Rent Control) Act, 1946.. The learned Judges overruled the decision of Chandrasekhara Aiyer, J., in Mahmmood, H. T. V/s. Kerala Corporation, Limited (1945) 1 M.L.J. 44, where he held that there was by these provisions an ouster of the jurisdiction of Civil Courts. The order of remand is therefore correct in law as settled by this decision of the Bench, but for another legal point raised in this appeal which requires separate consideration.

(3.) Though the point was not specifically taken before the. lower appellate court, it is one substantially of law raised on the admitted material on record and, as it appears to me, can be urged and decided at any stage. The point is this, namely, that plaintiff by his subsequent conduct after the decree in his suit O.S. No. 580 of 1943, dated 19 September, 1944, is now precluded from prosecuting it on the basis of a termination of the tenancy. The record shows that he filed his Appeal, A.S. No. 227 of 1944, in the first instance on 24 November, 1944, in the Sub-Court, Bezwada, with a very limited scope, merely to set aside the reservation of the right of the tenant to sue separately for the recovery of Rs. 51. On his appeal he paid a court-fee of only Rs. 5-9-0. The plaintiff then filed an application before the House Rent Controller on 22nd December, 1944, for fixation of a fair rent at Rs. 140 from 1 May, 1942, and for an order for ejectment if the tenant failed to pay. In his application, H.R.C. No. 84 of 1944 he prayed to quote his own language: In the event of the respondent not ready and willing to pay fair or standard rent, for ejectment of the respondent from the said bungalow. Ultimately on 17 July, 1945, the House Rent Controller fixed a fair rent for the house at Rs. 115 per month from 22nd December, 1944, the date of his application. After obtaining this order the landlord then proceeded to file two interlocutory applications, Nos. 835 and 836 of 1945 to have his appeal amended by additional reliefs for ejectment and damages. These applications along with the appeal No. 227 of 1944 were transferred to the Sub-Court, Masulipatam and numbered there as Appeal No. 87 of 1946. The amendments were allowed, the deficit court-fee was paid and the Judgment of remand under appeal passed.