P. Rangathaman vs Sankarlal Davey and Another

P.V. Rajamannar, C.J.—Both the Rent Controller and the Appellate Tribunal, namely, the Court of Small Causes, have ordered the eviction

of the petitioner on the ground that he had after the commencement of the Madras Act XV of 1946 sub-let the premises to one Krishnan Nair

without the written consent of the landlord, the respondent before us. The petitioner, the tenant, seeks to have the order of the Appellate Tribunal

quashed by a writ of certiorari on two grounds.

The first ground is that the application for eviction on which the order against him was made was itself liable to be rejected in limine u/s 10 of the

Act because a prior application made by the landlord was dismissed on 3rd November, 1948, in the following circumstances. The landlord filed an

application for eviction on substantially the same grounds as those alleged in the later application; but apparently having regard to the judgment of a

learned Judge of this Court which held that due notice terminating the tenancy was necessary before an application for eviction could be maintained

even under the Act, he applied to withdraw this petition with liberty to file a fresh petition after due notice terminating the tenancy. The petition was

allowed to be withdrawn and was dismissed. u/s 10 of the Act the Controller shall summarily reject any application for eviction which raises

substantially the same issues as have been finally decided in a former proceeding under the Act or under the corresponding provisions of the

Madras House Rent Control Order, 1945, or the Madras Non-Residential Building Rent Control Order, 1945, between the same parties or

between parties under whom they or any of them claim. It is contended by the learned Counsel for the petitioner, V.S. Rangaswami Aiyangar, that

the issues now raised in the present application must be deemed to have been finally decided by the order of dismissal on the prior application. In

support of this contention, he cited to us three decisions of this Court in Rama Reddi v. Motilal Daga ILR (1938) Mad. 326, P.P.P. Chidambara

Nadar Vs. C.P.A. Rama Nadar (deceased) Pichaimani alias Arunachalam by guardian Thillai Ammal as L.R. of the deceased and Others, and

Al.Ct. Alagappa Chettiar, through his authorised agent Ranganatha Aiyangar Vs. Ramakrishna Aiyar and Others, . All these decisions are

concerned with the construction of the words "" final order "" in Article 182 (5) of Schedule I to the Indian Limitation Act. They have absolutely no

bearing on the determination of the question in the present case, namely, whether issues arising in an application for eviction can be deemed to have

been finally decided by an order dismissing the application because the petitioner withdraws it. It was held by a Bench of this Court in CM.P. No.

8229 of 194.8, Miss Revathi by guardian Miss Revathi by Next Friend and Guardian S. Parthasarathy Vs. M. Venkataraman and Another, , that

when an application for eviction is dismissed for default of appearance or for non-prosecution, a subsequent application is not liable to be rejected

u/s 10 of the Act. It was therein observed that the words "" finally decided "" in Section 10 clearly implied that the prior application should have been

decided on the merits. It is obvious in this case that there was no decision, still less a final decision on any of the issues which arose for

determination in the prior application and which also arise in this application. This contention must therefore be overruled.

It was next contended that though there was a concurrent finding that Krishnan Nair was let into the premises by the petitioner, after the

commencement of the Act, nevertheless the petitioner is not liable to be evicted on that ground because there was an agreement between the

petitioner and the landlord prior to the commencement of the Act which entitled the petitioner to sub-let the premises at anytime to any one. As

rightly pointed out by the learned Judge of the Court of Small Causes, this plea was not specifically pleaded. But apart from this technical objection

we find that there is a more substantial objection to this argument. We are now only concerned with the language of Section 7(2)(ii)(a). Under that

provision the landlord is entitled to obtain an order for eviction of his tenant if the tenant has after the commencement of the Act without the written

consent of the landlord transferred his right under the lease or sub-let the entire or any portion of the leased building. If, therefore, there is a transfer

or sub-letting after the commencement of the Act, the tenant can be saved only by a written consent of the landlord from the consequence, namely,

eviction. It is not necessary for us to determine in this case whether the written consent of the landlord need be necessarily of a date after the

commencement of the Act. Prima facie it appears that even the written consent, giver before the commencement of the Act if it is subsisting at the

time of any sub-letting after the Act, might be sufficient to enable the tenant to plead successfully to the landlord''s application for eviction. But in

this case as the Rent Controller points out, there is no written consent of the landlord either before or after the commencement of the Act.

Therefore the second contention of the petitioner also fails. In the result this application is dismissed with costs of first respondent.