Valid tender by cheque and waiver of objection to form of payment can defeat a default finding and support certiorari relief.

A tender of rent is valid where the creditor has refused payment in any form, because objection to the mode of remittance is waived; on the facts, payment by cheque that also covered future rent did not invalidate the tender, so the finding of default could not stand. Certiorari may issue where an appellate order discloses an error apparent on the face of the record, including a patent legal error in treating a valid tender as invalid. The appellate eviction order was therefore quashed, and the refusal of eviction was restored.

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Issues: (i) Whether the tenant had made a valid tender of rent, notwithstanding that the remittance was by cheque and included advance rent for future months; (ii) whether an error apparent on the face of the record justified interference by certiorari with the appellate order of eviction.

Issue (i): Whether the tenant had made a valid tender of rent, notwithstanding that the remittance was by cheque and included advance rent for future months.

Analysis: A tender under section 38 of the Indian Contract Act requires an unconditional offer made at the proper time and giving reasonable opportunity to the promisee. A creditor who refuses payment in any form, or rejects it on other grounds, waives objection to the form of tender. On the findings recorded, the landlord was not willing to accept any tender from the tenant at that stage; therefore the fact that the remittance was by cheque and covered future rent did not invalidate the tender.

Conclusion: The tender was valid, and the finding of default could not stand.

Issue (ii): Whether an error apparent on the face of the record justified interference by certiorari with the appellate order of eviction.

Analysis: Certiorari lies where the inferior tribunal acts without jurisdiction, decides a collateral fact wrongly in a manner affecting jurisdiction, or commits an error apparent on the face of the proceedings. Where the order itself discloses facts from which the legal conclusion cannot follow, the order is a speaking order and is amenable to correction. The appellate order disclosed such a patent legal error in treating the tender as invalid despite the findings recorded.

Conclusion: The order of the Chief Judge was liable to be quashed in certiorari.

Final Conclusion: The writ petition succeeded, the appellate eviction order was quashed, and the House Rent Controller's refusal of eviction was restored.

Ratio Decidendi: Where a creditor has clearly refused to accept payment in any form, objection to the form of tender is waived, and a speaking order disclosing a patent legal error on its face can be quashed by certiorari.

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