TMI Blog1948 (9) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... with a cheque for a sum of ₹ 150 and in that letter the petitioner denied the right of the respondent to evict him and intimated to him that the cheque for ₹ 150 was enclosed, ₹ 75 as payment of the arrears of rent for the month of November, 1946 and the balance of ₹ 75 as advance rent for a month. The petitioner seems to have followed, the practice of paying six months' rent in advance to the respondent's vendor and in this letter he enquired the respondent whether he would also be willing to follow the same practice which would save the petitioner the worry of sending the amount every month. The respondent received the cheque and the letter, but sent no reply. He waited for some time and as he did not hear anything from the respondent, the petitioner sent a further cheque for a sum of ₹ 508 with a letter Ex.-D-1, dated 15th January, 1947, through his advocate and in that letter it was stated that as per the settlement of account appended to the letter the sum of ₹ 508 covered by the cheque was advance rent till the end of June, 1947. This letter, however, was returned to the advocate of the petitioner as refused. The petitioner and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Chief Judge, Small Cause Court. Before the learned Judge the arguments were more elaborate and various questions of law were raised. He agreed with the House Rent Controller in holding that the landlord evaded to receive the letter of 15th January, 1947, and the cheque but that the tender was not valid for two reasons: firstly that th e advance remittance of rent by cheque in January, 1947, was not payment of rent for the months of January 1947 to April 1947 since the landlord did not accept the cheque in which case he would have been under an obligation to treat the advance payment as a loan in his hands available for appropriation towards rent as and when it accrued due; secondly that it was not a valid tender even in respect of the rent due and accrued for the month of December 1946, as the cheque included also an amount of rent for future months which the appellant before him was not bound to accept. According to him, therefore, there was no valid tender of rent even for the month of December, 1946. In answer to the contention urged on behalf of the landlord that as the cheque sent in January, 1947, was enclosed in a registered envelope and even if there was a refusal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alid tender. As an universal proposition that is hardly correct. Tender by cheque will be valid tender if the person to whom it is tendered is willing to receive payment by a cheque. But in the present case the negotiations never got so far. The plaintiff refused at the outset to receive the money in any form or shape. It was open to him, had he allowed the matter to go on and the second defendant had tendered a cheque, to refuse the cheque and demand cash, and there was still time for the second defendant to go and bring cash. But instead of that he refused to have the payment in any shape and by this tactics put it out of his power to receive payment in cash, and, therefore, to object now to the form of the payment. It is quite clear from the evidence that his objection was not to the form of the payment but to payment in any form. Where a party thus refuses to entertain the idea of payment at all and puts it out of the power of the tenderor to offer payment in a manner acceptable to the creditor, the offer of performance by a person then able to carry out the promise in its entirety is a valid tender in spite of the form of it being itself not legal tender. The tender, whether b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer Ali v. Asraf Ali (1914) 25 I.C. 93. The case very strongly relied upon by the respondent is the decision of the Lahore High Court in Hira Lal v. Khizer Hayat A.I.R. 1936 Lah. 168. On the strength of this decision it was contended before us that if a single cheque was tendered for more items than one while only one of of which was due at the time and the others were not to be payable till a future date, as the cheque was one and indivisible, the tender cannot be said to be an unconditional tender and therefore it was invalid. If the interests of the creditor are not affected in any manner by the tender of a single cheque for more than one liability, it was open to the creditor to tell the debtor that he should split up the cheque or pay only so much as was then due. On the facts of that case it is clear that the interest of the mortgagee to whom the tender was made would seriously be affected if the tender under the circumstances of that case was treated as valid. 7. The mortgagee was authorised to remain in actual possession of the hypotheca for a period of 25 years from the date when he took possession of the property after redeeming the first mortgage. Owing to some litiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erely an advance or a deposit in his hands. In cases where there was an assignment and a payment by the tenant to the assignor without the knowledge of the assignment, the tenant would be bound to pay it over again to the assigneesee De Nicholls v. Saunders L.R. (1870) 5 Common pleas Cases 589 at 594. If there is no complication of an assignment and the tenant pays the rent in advance to the landlord and the landlord accepts it, the landlord will be bound to appropriate the advance in his hands towards the rent as and when it accrues due. It is of course open to the landlord to decline the offer and ask the tenant to pay it only on the due dates. Had the respondent received the letter by which the cheque was tendered in January, 1947, it would have been open to him to consider the matter in all its aspects and to have intimated to the petitioner in proper time his choice so as to enable the tenant to comply with his conditions. This the respondent failed to do. 10. It has been strenuously urged on behalf of the respondent that even if there is an error of law in the judgment of the learned Chief Judge of the Small Cause Court, it was not open to this Court to interfere by issuin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presently, he maintains that the law as stated in paragraph 1491 must be treated as having been overruled. Paragraph 1491 states as follows: Where upon the face of the proceedings themselves it appears that the determination of the inferior Court is wrong in law, certiorari to quash will be granted. Thus, certiorari to quash will be granted, where the charge before the Magistrates, as stated in the information, does not constitute an offence punishable by the Magistrates, or where it does not amount in law to the offence of which the defendant is convicted, or where an order is made which is unauthorised by the finding of the Magistrates. These are all illustrations of errors apparent on the face of the proceedings and involving merely a question of law. From the proceedings as set out in the order itself it would be patent that the conclusion of the tribunal was not warranted by law. In other words, the order is a Speaking order , an expression used by Earl Cairns, L.C. in Overseas of the Poor of Walsall v. London and North Western Railway Co. (1878) 4 A.C. 30 at 40. It is no doubt not necessary in all cases to set out the evidence or facts on which the decision was base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence. Nor will certiorari be granted to quash the decision of an inferior Court within its jurisdiction on the ground that the decision is wrong on matters of fact and the Court will not hear evidence impeaching the decision on the facts. 12. The question therefore to determine is whether the present order falls under the one category or the other. As pointed out already, some light is thrown on the meaning of the expression Error apparent on the face of the proceedings by the decision of Earl of Cairns, L.C., referred to above. This expression had to be construed by the Privy Council in another context, with reference to proceedings in arbitration. Lord Dunedin after examining the decisions on the point explains the expression in Champsey Bhara and Co. v. Fivraj Ballo Spinning and Weaving Co. (1923) 44 M.L.J. 706 : L.R. 50 I.A. 324 : I.L.R. 47 Bom. 578 at 586 (P.C.) in these terms: An error in law on the face of the award means, in their Lordships' view, that you can find in the award or a document actually incorporated thereto, as for instance, a note appended by the arbitrator stating the reasons for his judgment some legal proposition which is the basis of the awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute. Therefore he may be in a position to say, when the matter has to be decided, if it ever has, as a matter of substantive law, that he is right. But for the. purposes of the present case, it is enough to say that the appellants have failed to show that the Minister exceeded his jurisdiction, they should not have obtained the rule nisi in the Divisional Court which they did obtain, and the Divisional Court were right in discharging the rule when it came before them for argument. There is nothing in this judgment to indicate that the statement of the law in paragraph 1491 is erroneous. It is a clear case which fell within the principle laid down in paragraph 1493. The next case is also a decision of the Court of Appeal, Rex v. Rent Tribunal for Paddington (1947) All. E.R., Vol. 1, p. 448. Under the Furnished Houses (Rent Control) Act, 1946, the Minister of Health had the right to appoint tribunals for different districts to determine as between a landlord and a tenant whether the rent paid is a fair and reasonable one or not. The tribunal reduced the contract rent of five pounds a week to three pounds six shillings. Certiorari was moved on the ground that the tribunal did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t must have been within their jurisdiction to consider it and to give a decision. What we are really being asked to say is either that they have misconstrued the statute or that they have rejected evidence or misdirected themselves in some way, but even if they came to a decision without evidence, that is not a matter on which certiorari can be granted, and it follows that this application must fail. From the conclusion of the learned Judge so stated, it is clear that it was a case which clearly fell within the principles laid down in paragraph 1493 of Halsbury's Laws of England. The decision, therefore, does not in any manner affect the principles laid down in paragraph 1491. 15. It only remains to refer to two decisions of this Court in Mahomed Ashan Maracair v. Bijili Sahib (1933) 66 M.L.J. 367 : I.L.R. 57 Mad. 571, and Sankaranarayana v. Miran Sahib (1934) 66 M.L.J. 601 : I.L.R. 57 Mad. 583. We do not think that either of these decisions helps the respondent. These two decisions, in our opinion, do not carry one farther than the principles which have been so fully set out in Halsbury's Laws of England. It is unnecessary therefore to deal with these decisions furth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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