The appellant in this second appeal is the owner, and the respondent is the tenant, of a house in Coimbatore. The suit was for obtaining possession of the house and for the recovery of Rs. 70 as arrears of rent due till the date of the plaint. Out of this amount, Rs. 25 was said to be the balance of rent due for five months from 3rd February, 1943 to 3rd July, 1943; and Rs. 45 was claimed as the rent which was payable from 3rd July, 1943 to 3rd August, 1943. It was admitted in the plaint that from 3rd February, 1943 to 3rd July, 1943, the defendant paid at the rate of Rs. 40 per month; but the plaintiff claimed that he was entitled to Rs. 45 per month even for those 5 months and that was why he claimed Rs. 25 as the balance due in respect of that period. The learned District Munsiff of Coimbatore dismissed the suit. An appeal to the Subordinate Judge of Coimbatore was also unsuccessful. Hence, the present second appeal, which is confined to the claim for rent, the plaintiff conceding that the defendant cannot be evicted in view of the provisions of the Madras House Rent Control Order, 1941, which was made applicable to the district of Coimbatore from 17th March, 1942.

The defendant executed in favour of the plaintiff what is described as a house rent chit on 4th February, 1942, the principal terms of which are the following: The tenancy was in the first instance to last for one year and terminate on 3rd February, 1943. During this period Rs. 40 per month was to be paid by way of rent. The defendant was to deliver possession of the house to the plaintiff on 3rd February, 1943. Then occurs the following sentence, on which considerable reliance is placed on behalf of the plaintiff:

“If I fail to deliver possession to you of the house within the prescribed period.. I am from the date of such lapse bound to pay rent at the rate of Rs. 45 a month until possession is delivered to you.”

It is common ground that by this clause the defendant agreed to pay rent at the rate of Rs. 45 per month after 3rd February, 1945.

As already stated rent was paid at the rate of Rs. 40 per month for five months from 3rd February to 3rd July, 1943. The learned District Munsiff held that rent at that rate was accepted by the plaintiff without protest. But as no finding was given by the learned Subordinate Judge I called for a finding from him as to whether the receipt of Rs. 40 per month by the plaintiff was on protest or without protest. The learned Subordinate Judge has now returned a finding that the plaintiff received these amounts on protest. This, being a finding of fact, is not challengeable in second appeal.

It is, however, argued by Mr. T.R. Ramachandran, counsel for the defendant-respondent, that the stipulation which I have set above, is unenforceable in view of clause 7(a) of the Madras House Rent Control Order, 1941, which runs as follows:

“After the commencement of this order, an increase in rent shall be permissible only where some addition, improvement or alteration, not included in necessary repairs or repairs which are usually made to houses in the local area, has been carried out at the landlord’s expense since the rent was fixed.”

The language of clause 7(a) is peremptory and permits an increase in rent only where some addition, improvement or alteration such as is described in that clause has been carried out at the landlord’s expense after the fixation of rent. It does not permit an increase in any other case. The stipulation as to the payment of rent of Rs. 45 per month could, under the rent chit came into operation only after 3rd February, 1943, by which time the Madras House Rent Control Order was in operation in Coimbatore. In support of his argument, that the crucial date for the purpose of clause 7(a) is when the stipulation as to increase of rent comes into actual operation and not the date of the agreement itself, Mr. Ramachandran relied upon the decision of the Court of Appeal in Goldsmith v. Orr1. Dealing with section 4