1948 (9) TMI 19 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of the tender of rent by the petitioner.
2. Jurisdiction of the High Court to issue a writ of certiorari.
3. Legal position of an advance of rent in the hands of the landlord.
4. Application of the principles of certiorari.
5. The doctrine of election and its applicability to the case.

Detailed Analysis:

1. Validity of the Tender of Rent by the Petitioner:
The petitioner, a tenant, contended that he had made a valid tender of rent to the respondent (landlord) by sending cheques, which were refused. The House Rent Controller found that the tender was valid, but the Chief Judge, Small Cause Court, disagreed, stating that the tender was invalid because it included future rents and was not accepted by the landlord. The High Court, however, concluded that the tender was valid, citing Venkatarama Aiyar v. Gopalakrishna Pillai, which established that a tender by cheque is valid if the creditor refuses to accept payment in any form. The Court found that the respondent was not willing to accept any tender from the petitioner, making the form of the tender immaterial.

2. Jurisdiction of the High Court to Issue a Writ of Certiorari:
The High Court examined whether it had jurisdiction to issue a writ of certiorari to quash the order of the Chief Judge, Small Cause Court. The Court referred to established principles, noting that certiorari is appropriate where there is an error of law apparent on the face of the record. The Court found that the Chief Judge's decision contained such an error, as it incorrectly concluded that the tender was invalid despite the respondent's refusal to accept any form of payment.

3. Legal Position of an Advance of Rent in the Hands of the Landlord:
The Court discussed the legal position of an advance of rent, referring to English cases where rent paid in advance without knowledge of an assignment was considered an advance or deposit in the landlord's hands. The Court stated that if the landlord accepts an advance, he is bound to appropriate it towards the rent as it accrues due. In this case, the respondent's refusal to accept the cheque in January 1947 deprived him of the opportunity to specify conditions for its acceptance.

4. Application of the Principles of Certiorari:
The Court analyzed the principles governing the issuance of certiorari, citing Halsbury's Laws of England. It noted that certiorari is granted where there is an error apparent on the face of the proceedings, such as a legal conclusion not warranted by the facts found. The Court found that the Chief Judge's order was a "speaking order" that revealed an error of law, making it appropriate for certiorari.

5. The Doctrine of Election and Its Applicability to the Case:
The respondent argued that the petitioner, by accepting an extended period to vacate the premises, had elected to abide by the decision of the appellate authority. The Court rejected this argument, citing Lissenden v. C.A.V. Bosch Limited, which held that the principle of approbate and reprobate does not apply to the right to appeal from a judgment or award. The Court concluded that there was no scope for the doctrine of election in this case.

Conclusion:
The High Court quashed the order of the Chief Judge, Small Cause Court, and restored the order of the House Rent Controller, finding that the petitioner had made a valid tender of rent and that the respondent's refusal to accept any form of payment rendered the form of the tender immaterial. The Court also held that it had jurisdiction to issue a writ of certiorari due to the error of law apparent on the face of the Chief Judge's order. The petitioner was awarded costs.