Jurisdiction of appellate authority of remand.

This Civil Revision is directed against the appellate order of the Court of Small Causes at Madras in H.R.A. No. 78 of 1957. That appeal was preferred against I.A. No. 1120 of 1956 in H.R.C. No. 4376 of 1956. The petitioner before me, the landlady of the premises, occupied by the respondent before me, as a tenant, applied to the Rent Controller for eviction on the ground of arrears in payment of rent. After counter-statement was filed in the proceedings the Rent Controller acting under the Proviso to section 7, clause (2) of Madras Buildings (Lease and Rent Control) Act, 1949, directed the tenant to pay all arrears of rent up to date. After this order had been made the proceeding came on for hearing on 31st December, 1956. That day the following order was passed by the Rent Controller:

"Parties by counsel. Arrears not paid as directed. Respondent is absent when called thrice. Proceedings are stopped and eviction is ordered under section 7-A (4) of the Madras Rent Control Act."

Thereafter the tenant filed I.A. No. 1120 of 1956 to set aside the order of eviction passed on 31st December, 1956. This I.A. was disposed of by the following order passed by the Rent Controller on 7th January, 1957: —

"The applicant was represented by his counsel and the order of eviction was passed under section 7-A (4) of the Madras Rent Control Act. Hence this application is rejected as not maintainable."

Against this order an appeal was preferred under section 12 of the Act which came on for hearing before the Second Judge of the Court of Small Causes, Madras, on 24th April, 1957. That day the following order was passed:

"Rs. 10 paid today and accepted. The matter will be sent to R.C. for a finding as to whether the default was wilful. Parties to appear before R.C. 8th May, 1957. Finding by 4th July, 1957".

The tenant failed to appear before the Rent Controller in the remanded proceeding and he thereupon submitted a finding on 12th June, 1957, to the effect that the default in payment of rent was wilful. When the appeal was taken up after the submission of the finding the tenant was absent and the appeal was dismissed. Two successive applications to restore the appeal to file made by the tenant were also dismissed for default of his appearance. Ultimately the Chief Judge of the Court of Small Causes called for a fresh finding from the Rent Controller. The Rent Controller then submitted a finding that the default in payment to rent was not wilful and accepting this finding the Chief Judge of the Court of Small Cause allowed the appeal and set aside the order of eviction.

Two points are raised by the learned counsel for the petitioner. The first is that the appeal to the Small Causes Court is itself incompetent as it was directed against the order in I.A. No. 1120 of 1956 and not the order of the Rent Controller directing eviction of the tenant. It may be remembered that I.A. No. 1120 of 1956 was an application to set aside the alleged ex parte order of eviction passed by the Rent Controller though his counsel was present when that order was passed. In the absence of an appeal against the substantive order, the contention urged is, that the appellate Court had power only to allow I.A. No. 1120 of 1956 which would result in reopening of the original order. The point made by Mr. Venkatadri for the petitioner is that the original order was not passed ex parte and, therefore I.A. No. 1120 of 1956 was itself incompetent.

The next point made by him is that in the appeal against the order passed in I.A. No. 1120 of 1956 the appellate Court had no jurisdiction to call for a finding whether the default in payment of rent, on which the application for eviction was based, was wilful. His contention is that, that was not the basis for eviction passed by the Rent Controller under section 7-A (4) of the Act. It will be seen that section 7-A (4) of the Rent Control Act deals with payment of arrears as a condition precedent to the hearing of the tenant on the obje