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Judgment
Srinivason, J.—The petitioner is the landlord who filed a petition under S. 7 of the Act XXV of 1949, for the eviction of the respondent-
tenant. The grounds put forward were bona fide need for his own occupation and wilful default in the payment of rent: The petitioner alleged that
he is a merchant carrying on business in rented premises and that he does not own any residential building in the city. The tenancy itself was partly
for residence and partly for the tenant''s business. It was further alleged that is the month of August 1959, the tenant issued a cheque towards
payment of rent, which cheque was not honoured, The tenant contended that the landlord owns one building and has another rented building in the
city. He denied wilful default, contending further that if he is asked to vacate, it will involve hardship. The House Rent Controller accepted the
contentions of the landlord. It would appear that the respondent-tenant died after filing the counter, and his brother was brought on record as his
legal representative. It transpired from the evidence that the rent for August remained unpaid. It was further admitted by the respondent, the legal
representative, that he only proposes to do business, the business which the deceased tenant was carrying on having apparently come to an end.
The House Rent Controller also found that the landlord has to run his oil business in three places in the city and that his requirement for non-
residential purposes was also bona fide and reasonable. There was accordingly an order for eviction. The respondent carried an appeal. It was
before the appellate authority that the petition had been filed under the old Act, which had been since repealed and replaced by the Act of 1960,
that the Rent Controller had erroneously applied the new Act which had come into force, and the contention was advanced on behalf of the
appellant-tenant that the old Act should have been applied. On a consideration of certain decisions, the appellate authority accepted the validity of
this contention. The appellate authority further, found that despite the admission of the tenant that the cheque issued towards the rent for August
was dishonoured and that month''s rent still remained unpaid, it could not be regarded as wilful default, for the default was only for one month. The
appeal was accordingly allowed and the order of eviction set aside.
This order is challenged in this revision petition. The short question is whether on the two points dealt with, the order of the appellate authority
discloses any error.
Looking at the matter broadly, there appears to be no doubt that when a tenant deliberately issues a cheque, which he knows would be
dishonoured, better evidence of the wilful nature of the default in payment of the rent can hardly exist. On the facts regarding the requirement of the
landlord also, there is no doubt that the bona fides must be said to have been established. Even looking at the question of the hard ship to the
tenant in making an order of eviction, it is obvious that the tenant was not carrying on any business, and contrasted with the needs of the business,
which is being carried on by the landlord, there cannot be said to be any hardship to the tenant by the order of eviction. It is no doubt true that the
appellate authority has jurisdiction to come to a conclusion different from that of the initial authority, but it is obvious that that conclusion should be
reasonable and should be on a consideration of the entire set of facts. I am unable to see how it can be said that merely because the default is only
for one month, it could straightaway be deemed to be not wilful. The action of the tenant in issuing a cheque, which he obviously knew would be
dishonoured is certainly a pointer and should be had regard to in coming to any conclusion on that head. The appellate authority has failed to note
this feature. The appellate authority has not also dealt with the bona fides of the landlord''s requirement, for it thought that the decision upon this
question should be on the grounds available under the old Act and not under the new Act.
S. 7 (3) (a) of the old Act provided:
A landlord may... apply to the Controller for an order directing the tenant to put the landlord in possession of the building-(iii) in case it is non-
residential building if the landlord is not occupying for purposes of a business which he is carrying on, a non-residential building in the city, town or
village, concerned which is his own or to the possession of which he is entitled, whether under this Act or otherwise.
The corresponding provision of the 1960 Act by S. 10(3) (a) reads:
A landlord may... apply to the Controller for an order directing the tenant to put the landlord in possession of the building (iii) in case it is any other
non-residential building, if the landlord or his son is not occupying for purposes of a business which he or his son is carrying on, a non-residential
building in the city, town or village concerned which is his own.
In both of these Acts, there was another provision S. 7 (3) (a) in the former Act and S. 10 (3) (e) in the latter Act in these terms:
The Controller shall if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession
of the building, on such date as may be specified by the Controller, and, if the Controller is not so satisfied, he Shall make an order rejecting the
application;
Provided that, in the case of an application under Clause (c), the Controller shall reject the application if he is satisfied that the hardship which
may be caused to the tenant by granting it will outweigh the advantage to the landlord. It would suffice to say that Clause (e) refers to a case where
a landlord has occupied part of the building, whether residential, or non-residential and he applies to the Controller for evicting the tenant from the
remaining part of the building on the ground that the landlord requires additional accommodation for residential purposes or for purposes of a
business which he is carrying on. It may be mentioned that in the present case, the landlord has possession and occupation of one room in the
building, the remaining portions of the building being let out to the tenant, the upstairs for residential purposes and the downstairs for non-residential
purposes. As stated already, the non-residential purpose of the tenant has ceased to exist.
The question is whether after the filing of the petition under the old Act, when that Act had ceased to be in force, and the new Act has taken its
place, the application for eviction should be disposed of under the old Act or under the new Act. Mr. M.V. Krishnan, on behalf of the landlord-
petitioner has referred to a few decisions. In Kolandaivelu Chettiar v. Koolavana Chettiar (1961) 1 M.L.J. 184=74 L.W. 164 Venkatadri, J.,
decided that by reason of S. 35 of the Act of 1960, all pending proceedings initiated under the old Act have to be decided under the relevant
provisions of the new Act. The learned Judge observed that notwithstanding the repeal of the old Act, Sec. 35 (2) of the new Act, provides that all
proceedings taken under any provision of the old Act shall be deemed to have been taken under the corresponding provision of the new Act. It
followed according to the learned Judge that where a landlord has initiated action for the eviction of a tenant, that shall be deemed to have been
taken under the corresponding provision of the new Act. In the case decided by the learned Judge, the landlord sought possession on behalf of his
son, who was married and who required a separate premises. The right to evict the tenant on such a ground was not available under the old Act.
Though the petition had been filed under the old Act the learned Judge held that the new Act would apply and the relief could be granted
thereunder.
In Md. Ayoob v. Krishna Iyer and Sons (1961) 2 M. L. J. 184=74 L.W. 421 decided by me, a somewhat different question arose. A
proceeding for the fixation of fair rent had been instituted under the old Act. It had been decided by the Controller, whose order had been
confirmed on appeal. The matter came in revision before this Court, by which the old Act had been repealed and the new Act had taken its place.
It was urged before this Court that in the light of S. 35 of the new Act, it would be proper for this Court to set aside the orders of the Courts
below and to remand the fair rent application for fresh determination in view of the new principles laid down in the later Act. I held that such an
order could not be made, not on any general principles of construction of S. 35 of the Act, but for the reason that in so far as a fair rent application
is concerned, there is a special provision enacted by S. 35 (3) of the new Act. S. 5 of the new Act prohibited any further increase in the fair rent
when once the fair rent of a building had been fixed under the 1960 Act. By reason of S. 35 (2), the order fixing the rent made under the old Act
could be deemed to have been made under the new Act, so that a further application for fixing the rent is prohibited by S. 5 of the new Act, except
in certain cases. But S. 35 (3) of the new Act provides that notwithstanding Sub-S. 2 of S. 35 or S. 5 of the new Act, a fresh application could be
filed by either party for fixing the fair rent in accordance with the principles for such fixation laid down under S. 4 of the 1960 Act. The decision
referred to above merely pointed out that since the landlord could move in the matter by way of a fresh application, the orders made by the
authorities below could not be said to be erroneous and to require revision.
Venkataswami v. Abdul Rahim and Bros. 75 L. W. 111 a Bench decision to which I was a party, was again a case of fixation of fair rent. The
ratio of the decision was only that despite the fact that the tenant had agreed to pay rent at a certain rate at the inception of the tenancy, it does not
bar his right to apply for fixation of fair rent. A passing observation was made to this effect:
The new Act, Madras Act XVIII of 1960, does not govern these proceedings, as the Act does not in express terms or by necessary intendment
govern pending proceedings. S. 35 (3) of the new Act however can be availed of by either party and these proceedings cannot in any way affect
that right.
This clearly shows that the decision proceeded on the specific provision S. 35 (3) which deals with the determination of fair rent. This cannot be
taken as an authority for holding that when an application had been filed when the old Act was in force, it must still be determined in accordance
with the provisions of the old Act, notwithstanding that by the date the competent authority deals with the matter; the old Act has been repealed
and the new Act has taken its place.
This question came in for examination in a batch of civil revision petitions of this Court decided by Veeraswami, J. There also the question was
whether, when an application for eviction by a landlord had been filed under the old Act, and during the pendency of those proceedings the new
Act came into force, the new Act or the old Act had to be applied. The learned Judge pointed out that the statutory tenancy either under the old
Act or the new Act does not involve the transfer of any right from the one to the other; nor does it create or vest in the tenant any transferable
interest in the property. The statutory tenancy merely granted a statutory protection to the person in possession. It is open to the statute, which
creates a statutory tenancy, to curtail or enlarge the scope of such protection, and equally enlarge or curtail the landlord''s right to ask for and
obtain eviction. It would therefore follow that whether an order for eviction should be made or not should be decided in the light of the law in force
at the time the order is made or refused. The rights of the parties can flow only from the law in force at the time. This decision is clearly authority
for the position that the law that is in force on the date of taking the order should be applied.
It would follow that the learned Judge of the Court of Small Causes, who is the appellate authority, took an erroneous view of the law in
holding that the petition should be disposed of only in the light of the provisions of the old Act. Since it is not disputed that if the new law were to
apply, the petitioner is entitled to possession of his own premises, so long as he is not in occupation of any premises of his own, the petitioner it
entitled to succeed. The petition is accordingly allowed with costs. Time to vacate two months.