R KRISHNAMURTHY Vs. SPARTHASARATHY

JUDGEMENT

(1.) The respondent is the occupier of the house No. 403, Mint Street, Madras, and the appellant is the owner of that house, who had leased it to the respondent on a month to month tenancy. The respondent failed to pay rent for July, 1947, before the e August, of that year; and so the appellant, without giving notice under Section 111(h) of the Transfer of Property Act, filed an application before the Rent Controller, Madras, under Section 7 of Madras Act XV of 1946 for the eviction of the respondent. The Rent Controller, after giving notice to the respondent, came to the conclusion that the respondent had not paid his rent within the time allowed by Section 7(2) and so ordered his eviction. The question of the non- issue of notice under Section 111(A) of the Transfer of Property Act was not raised. The respondent exercised his statutory right of appeal under Section 12 of the Act and filed an appeal in the Court of Small Causes, Madras. Again no reference was made to the failure of the appellant to give notice to quit. The appeal was dismissed. The respondent thereupon filed C.S. No. 342 of 1948 in this Court for a declaration that the order of the Rent Controller was ultra vires, in that no notice to quit had been given, such as is required by law under Section 111(h) of the Transfer of Property Act. The learned Judge held that notice under Section 111 (h) of the Transfer of Property Act was necessary and that the Rent Controller had no jurisdiction to enquire into an application under Section 7 of Act XV of 1946 where no notice to quit had been given and that therefore this Court had jurisdiction to entertain the suit, to give the declaration prayed for, and to set aside the order of the Rent Controller. Another question was raised with regard to a sub-tenancy; but we are not concerned with that in this appeal.

(2.) Two points arise for determination, (1) whether notice to quit was necessary, and (2) whether, if necessary, this Court had jurisdiction to entertain a suit to set aside the order of the Rent Controller.

(3.) Mr. V.C. Gopalaratnam has argued that Act XV of 1946 is self-contained and that in it are found all the provisions of law and procedure necessary for dealing with the cases between a landlord and tenant that came within the purview of this Act and so pro tanto repeals by implication the corresponding provisions of the Transfer of Property Act. There is something to be said for this argument; but in the view that we are taking, it is not necessary for us to consider this extreme contention. We shall therefore confine ourselves to a consideration of the narrower question formulated by the learned trial Judge : " Does Section 7 of Act XV of 1946 by necessary implication abrogate or repeal Section 111(h) of the Transfer of Property Act? " Perhaps the more pertinent question would be :" Can an application for eviction be made to the Rent Controller before the tenancy has been determined by a notice to quit?"