D P MERCHANT Vs. BANK OF MYSORE LIMITED

JUDGEMENT

(1.) This is an appeal by the tenant against an order of the City Civil Judge passed by him in execution of the order of the Rent Controller, dated 15 May, 1948, under Section 7 of the Madras Buildings (Lease and Rent Control) Act of 1946. The order of the Rent Controller was passed under Section 7 on the ground that the tenant failed to pay the rent due to the landlord. To enforce the order, an execution petition was filed in the City Civil Court under Section 9 of the Act and under that section the order is executable as if it were a decree passed by that Court. The tenant objected to the execution of the order on the ground that it was passed by the Rent Controller without jurisdiction, as the tenancy was not determined by a notice to quit under the provisions of the Transfer of Property Act. It is in evidence that the landlord who purchased the property on 26 September, 1946, gave a notice determining the tenancy on 30 September, 1946, and requiring the tenant to surrender possession of the property by the end of October, 1946. The tenant then raised the further contention that the landlord accepted rent after that notice and that therefore there was a fresh tenancy which required a fresh determination by a further notice. This contention was overruled by the learned City Civil Judge on the ground that in the reply which the tenant sent through his advocate on 8 October, 1946, to the landlord he agreed to be governed by the provisions of the Rent Control Act and therefore he was not entitled to take advantage of the provisions of the Transfer of Property Act and contend that the tenancy should be determined.

(2.) As Section 9 of the Act has the effect of making the order of the Rent Controller a decree passed by the City Civil Court, Madras, which is the executing Court, it is not open to the tenant in execution of the decree to raise the contention that the order passed by the Rent Controller was invalid. No question of want of jurisdiction arises, merely because a notice to quit was not issued. In the case of a suit by a landlord to eject a tenant without a notice determining the tenancy, if the tenant raised no objection to the passing of a decree, it would not be open to such a tenant in execution of the decree to raise the contention that the judgment was wrong. It is open to the tenant to raise in the suit objections such as want of notice, and if he does not raise the objection in proper time, he would be precluded from raising the objection thereafter. If that is the position in the case of a decree passed in a suit. I see no reason for treating the order of the Rent Controller which is a decree under Section 9 of the Act oh a different footing. If, before the Rent Controller, in answer to the petition filed by the landlord for eviction the tenant failed to raise the objection that the tenancy was not determined, assuming that that is the correct legal position, he is thereafter precluded from raising the objection in execution. The decree was not on the face of it without jurisdiction, and the tenant really seeks now to canvass the correctness of the order passed by the Rent Controller on grounds not raised before him. The learned City Civil Judge should therefore have disposed of the objection of the tenant on this short ground.

(3.) Even apart from this, I think there are no merits in the objection. It has now been finally decided in Krishnamurthy V/s. Parthasarathy (1949) 1 M.L.J. 412, that Section 7 of the Rent Control Act deals with tenancies that were determined as well as those that have not been so determined and that there is no conflict between Section 7 of the Rent Control Act and Section 111 of the Transfer of Property Act. In this view, it would be seen that if the conditions of Section 7 of the Rent Control Act are satisfied, the Rent Controller has jurisdiction to order eviction even in cases where the tenancy was not determined as required by Section 111 of the Transfer of Property Act.