Mahmood H.Y. vs The Kerala Corporation Ltd.

Chandrasekhara Aiyar, J.—This is a simple case where the landlord seeks to recover from the tenant possession of certain premises taken

on lease on 1st January, 1943, for one year on a monthly rent of Rs. 300 for the first three months and Rs. 320 for the remaining period. The

plaintiff states that the defendants are in arrears of rent for the months of October, November, and December, 1943, amounting to Rs. 662-6-7.

He also seeks to recover mesne profits at Rs. 320 a month from the date of the termination of the tenancy, viz., is January, 1944, upto the date of

delivery of possession.

The defences raised are that even after 1st January, 1944, the defendants continued in possession of the ground floor of the premises on a

monthly rent of Rs. 100 and that they are liable to pay rent only at this rate and further they that are entitled under the Madras Rent Control Order,

1941, to, continue in occupation till 1st March, 1945. Two subsidiary questions have also been raised, namely, that the plaintiff is liable to make

good a sum of Rs. 191-7-0 which was collected from the defendants by the Electric Supply Corporation as charges for the supply of electric

current from 1st April, 1942, to 31st December, 1942, and that the plaintiff should return the advance of Rs. 1,000 admittedly in his hands.

Whether on the termination of the suit tenancy a fresh tenancy arrangement came into existence with effect from 1st January, 1944, as regards

the ground floor portion of the premises, is one of the questipns that arises for decision in this case, and the answer depends mainly on the

documents that have been filed on both sides. The other important question is whether, even if it be held that there was no such fresh tenancy, the

defendants could be treated as tenants holding over and thus entitled to the benefits of the House Rent Control Order; and this is a question of law.

The liability for the payment of the electric charges can be disposed of very shortly.

[His Lordship dealt with the evidence and after holding the defendants liable for the charges dealt with the plea as to the defendants'' claim for

return of the advance and concluded]

The refundable balance will be Rs. 819-4-0 and not Rs. 826-12-0 as stated in the reply.

Even from the plaint, it will be seen that the premises in question bear three different municipal door numbers--121, 121-A and 121-B,

Armenian Street, Madras. They represent the ground floor, the first floor and the top floor. The three floors were let to three different people in

1941 on rents of Rs. 125, Rs. 115 and Rs. 40 per mensem respectively. All the three together were taken on lease by the defendants during the

year 1943 on a rent of Rs. 300 per mensem for the first three months and Rs. 320 per mensem for the remaining nine months, as stated already.

The National Radio Company and one S.V.L. Aiyar were the sub-tenants under the defendants of the first floor and the top floor. When the year

of tenancy was drawing to a close, fresh arrangements came to be considered and as early as 22nd October, 1943, the defendants informed the

plaintiff that they wished to terminate the tenancy and asked him to adjust the rents for October, November and December, 1943, out of the

advance of Rs. 1,000 in the plaintiff''s hands. They, however, expressed a wish to continue the tenancy of the ground floor provided it was let out

to them on a monthly rent of Rs. 75 with one month''s advance and one month''s notice on either side. The plaintiff wanted a rent of Rs. 100 for the

ground floor and the assistance of the defendants to enter into separate and independent tenancies with the sub-tenants as regards the first floor

and the top floor. Certain other conditions were also mentioned, but with these we are not now concerned. In his letter of the 10th December,

1943, the plaintiff wrote:

As regards the tenancy of the other two floors formerly in your possession, I write this to inform you that I am arranging their tenancy terms

directly. I shall let you know in case they choose to vacate the same. Now as regards your tenancy I write this to inform you that I am agreeable to

renting you the ground floor portion on a monthly tenancy basis at a monthly rent of Rs. 100 payable in advance each month.

Instead of accepting this, the defendants went back on their offer of Rs. 100 and started correspondence to the effect that they were willing to pay

only Rs. 75 a month. This was met by the plaintiff with a demand for rent at Rs. 150 a month. Ultimately the defendants realised their folly and

agreed to Rs. 100 but the plaintiff would not. The consent to Rs. 100 is in Exhibit D-9 dated 28th December, 1943. Exhibit D-10 is a letter of the

next date, in which the defendants wrote to the plaintiff:

We would also like you to enter into a fresh lease for the ground floor aloneofrom 1st January, 1943, on a rental of Rs. 100 per mensem as agreed

by you to our Mr. Sankar.

The plaintiff took the cheque that was sent for Rs. 297-9-5 under protest but as regards the tenancy he said:

I will go over to Madras on Tuesday when all further matters will be settled in person.

See Exhibit D-II. It is clear on this correspondence that no fresh tenancy agreement was ever reached as regards the ground floor portion of the

premises to take effect from 1st January, 1944. There were proposals and counter-proposals and, if there was no final acceptance of rent at Rs.

100 per mensem, the defendants were mostly to blame for the situation. Anyhow, it is not necessary to pursue this subject further.

It is reasonably clear that, as indicated by the plaintiff himself in Exhibit D-4, he entered into separate tenancy agreements with the sub-tenants

as regards the first floor and the top floor. After some higgling on both sides the offers of the National Radio Company and S.V.L. Ayyar to pay

rent at Rs. 60 per mensem and Rs. 30 per mensem were accepted by the plaintiff, as would be seen from Exhibits D-23 and D-41. There was no

question of taking over possession from the Kerala Corporation and handing possession to the new tenants except in a technical sense, for the

National Radio Company and S.V.L. Ayyar were already tenants occupying the floors they wanted to take. The ultimate refusal of the plaintiff to

treat them as tenants under him because he could not get possession of the property from the Kerala Corporation as desired by him and his

statement in the letters that this was a condition precedent to the fresh tenancy as regards the first floor and the top floor taking effect, appear to be

afterthoughts. Even if they are to be treated as good reasons so far as he was concerned, it does not affect the legal position that the

correspondence discloses the formation of contracts of tenancy with them. We are not concerned with the question whether the plaintiff was able

to give them satisfactory possession or not. Even if he was not, it does not matter. It is a question as between him on the one hand and those

tenants on the other.

The position therefore at the end of the year 1943 and the beginning of 1944 was this. The old lease had come to an end by efflux of time.

There were fresh tenancies in respect of the first floor and the top floor. There was no cenancy arrangement as regards the ground floor which

continued in the possession and occupation of the defendants. On these facts, it is difficult to hold that the plaintiff is entitled to an ejectment decree

against the defendants in respect of the entire premises including Nos. 121-A and 121-B on the basis of the termination of the original tenancy with

31st December, 1943. Ordinarily and if there were no other complications, the plaintiff would certainly be entitled to a decree for possession and

for mesne profits as regards door No. 121 the portion remaining under the occupation of the defendants. But here comes up the Madras House

Rent Control Order, 1941, for consideration.

By the letter of their lawyer sent on 10th January, 1944, Ex. D-13, the defendants informed the plaintiff that they were exercising the option u/s

7-A of the Madras House Rent Control Order, 1941, and intended to occupy the premises in their possession for a period of 12 months from 1st

March, 1944, paying a monthly rental of Rs. 100 in respect of the same and they denied the plaintiff''s right to recover possession before 1st

March, 1945. As the original lease had terminated by then, the defendant company was in the position of a tenant holding over as regards the

portion in their occupation, the other portions having been let by the plaintiff under separate tenancy arrangements to the National Radio Company

and S.V.L. Ayyar. It is quite clear--and this has been the subject-matter of decisions both here and under the analogous English order--that a

tenant holding over is entitled to the benefits of the Rent Control Order. The notice given by the defendants was a valid one, as the tenancy was a

monthly one and would terminate only on 31st January, 1944- See Section 7-B of the Rent Control Order, where it is provided that 15 days''

notice should be given before the expiry, of the tenancy in the case of monthly tenancies. Even this period has been subsequently cut down to 7

days under a later G.O. No. 3941. dated 3rd December, 1943.

The contention for the plaintiff raised by Mr. Venugopalachari, his learned advocate, is that the Rent Control Order as it stood before its

amendment in June and July, 1944, did not apply to premises let for business purposes and that on the date he filed this suit the tenant could not

avail himself of the benefits of the Order though now after the amendments it may be that the remedy to secure eviction can be sought only from the

Controller under the Act. Whether the premises can be described as a house within the meaning of the Rent Control Order depends as much on

the purposes for which it was let as on the use to which it was actually put. There is no proof at all in this case that the suit premises were let for

business purposes only and not for occupation as residence. It is quite obvious that, apart from the definition of a "" tenant "" added in the Rent

Control Order by an amendment in July, 1944, the word as it originally stood must be taken to mean an extcnant just as the word "" landlord "" must

be taken to mean an ex-laudlord; otherwise the very object of the order will be frustrated and nullified. Sub-clause 7-A, as it now stands after the

July amendment, provides that the landlord wishing to evict a tenant in possession shall apply to the Controller for a direction in that behalf and it is

for the Controller to make up his mind after satisfying himself on certain matters whether the landlord shall be put in possession or not. This

amendment, though it came into force after the suit was filed, must be held to govern us because what we have to see is the true position on the

date when the order of eviction is sought and not on the date when the suit was filed, as was held by Lush, J., in Harcourt v. Lewe 35 Law Times

Reports 255. But even apart from this amendment, the landlord had no right to evict once the tenant exercised his option under the unamended

House Rent Control Order, Section 7-B.

Mr. Venugopalachari ingeniously contended that there could be no objection to a decree being passed in this suit though after the decree it

might be that he might have to go before the Controller to get possession. This argument fails to take note of two answers. One is that when a

special tribunal is indicated for obtaining a particular relief, it is that tribunal that has got exclusive jurisdiction to grant that relief and to that extent

the jurisdiction of civil Courts is ousted. Secondly, even if it is held that the Court has jurisdiction to grant a decree for eviction it cannot be called

upon to indulge in a mere pastime and pass orders which would be brutum fulmen and which cannot be carried into effect without resort being had

to other persons or tribunals in whom a discretion is vested to decide if eviction is to be ordered or not. The remedy of the plaintiff is to go before

the Controller.

For these reasons, I think the suit fails and must be dismissed with costs. Ordered accordingly.