Chandmal Jaskaran v. Chhaganlal Pratap — 1949 DIGILAW 46 (MP)

JUDGMENT : 1. This is an appeal against the judgment of a learned Single Judge of this Court. The suit which has given rise to this appeal was instituted by the plaintiff - Respondent against the defendant - Appellant for a declaration that the order dated 11-10-1946 of the Municipal Commissioner, Indore City, in Bent control Appeal No. 66/46 is ultra vires and without jurisdiction. The plaintiff alleged that he is a tenant of the defendant in house No. 5 in Juni-Kasera Bakhal; that the defendant desiring to evict him presented under S. 8 of the Indore Rent Control Order of 1943, an application to the Rent Controller. The said application was dismissed by the Rent Controller on 20-8-1946. Thereupon, the defendant appealed under S. 9 of the Rent Control Order to the Municipal Commissioner. The Municipal Commissioner set aside the order of the Rent Controller and directed the plaintiff to hand over the possession of the premises in his occupation to the defendant. 2. The plaintiff further averred that the order of the Municipal Commissioner is ultra vires and without jurisdiction as under S. 8 of the Rent Control Order no order directing the plaintiff to put the defendant landlord in possession of the premises could have bean passed by the Controller unless be was satisfied that the plaintiff had not paid and was not ready and willing to pay the rent due in respect of the period before the defendant's application for eviction and that the plaintiff was in fact ready and willing even in the proceedings before the Rent Controller to pay the arrears of rent, but neither the Rent Controller nor the Municipal Commissioner in appeal determined the fact whether the plaintiff was ready and willing to pay the amount of rent. The defendant pleaded that the plaintiff's suit is not maintainable and that the plaintiff was at no time ready and willing to pay the arrears of rent. 3. The trial Judge found that the plaintiff's suit was maintainable and that the Court has jurisdiction to see whether the Rent Controller and the Municipal Commissioner has or has not complied with the statutory provisions of the Rent Control Order. 3. The trial Judge found that the plaintiff's suit was maintainable and that the Court has jurisdiction to see whether the Rent Controller and the Municipal Commissioner has or has not complied with the statutory provisions of the Rent Control Order. He further held that the Municipal Commissioner bad no jurisdiction to pass an order under S. 8 (2) of the Rent Control Order evicting the plaintiff without first determining whether the plaintiff was ready and willing to pay the rent and that the Municipal Commissioner did not determine this issue. On these findings, he decreed the plaintiff's claim. The defendant thereupon appealed to the District Judge, Indore, and the learned District Judge reversed the decision of the trial Court holding that the plaintiff never expressed his willingness before the Rent Controller to pay the rent due in respect of the period before the defendant landlord's application for eviction; the question, therefore, of the willingness of the plaintiff to pay the rent did not arise for decision and that there was no error in the decision of the Municipal Commissioner; and that even if there was an error in the decision of the Municipal Commissioner it was not open to civil Court to question the correctness of the Municipal Commissioner's order as it was in exercise of jurisdiction. 4. In second appeal before a Single Bench of this Court, the learned Judge held that an order under S. 8 (2) of the Rent Control Order 1943, directing the tenant to put the landlord in possession of the house can only be made if the Controller or the appellate authority is satisfied that the tenant not only has not paid the rent due but also that he is not ready and willing to pay it, and that the Municipal Commissioner did not apply his mind at all to this provision of law, viz.; whether the appellant was ready and willing to pay the rent due or not. The learned Judge further held that a finding of this fact is a condition precedent to making an order of a tenant's ejectment and the absence of such a finding vitiates the order of ejectment passed by the Appellate Tribunal. The learned Judge further held that a finding of this fact is a condition precedent to making an order of a tenant's ejectment and the absence of such a finding vitiates the order of ejectment passed by the Appellate Tribunal. He accordingly, set aside the decree of the First Appellate Court and declared that the order dated 11-10-1946, of the Municipal Commissioner directing the respondent to deliver the possession of the premises in his occupation to the defendant landlord to be a nullity. On an application by the defendant, he however, granted a certificate for further appeal under S. 23, Madhya Bharat High Court Act, 1949. 5. On behalf of the appellant, it has been contended that the order of the Municipal Commissioner would be void only if he did not inherently have jurisdiction with regard to the subject-matter of the appellant's application for evicting the respondent, but in the present case the Rent Controller and the Munioipal Commissioner had complete jurisdiction with regard to the subject-matter of the application for eviction; and that if it was necessary under S. 8 (ii) of the Rent Control Order to determine whether the tenant was ready and willing to pay the rent due, in respect of the period before the appellant's application, for making an order evicting the tenant, it would be merely one of the issues to be decided by the Rent Controller or the Municipal Commissioner and would not in any way affect their jurisdiction to entertain the application for eviction; and that being so, if the Rent Controller or the Municipal Commissioner did not decide that question properly or decided that question erroneously, the matter would not be one relating to jurisdiction but it would be one concerning exercise of jurisdiction and the order of the Municipal Commissioner could not be set aside on the ground of erroneous exercise of jurisdiction by collateral proceedings. The learned counsel for the appellant has further argued that in determining the question that the respondent was ready and willing to pay the arrears of rent, the relevant point of time to consider is the time when the appellant presented his application before the Rent Controller for evicting the respondent and that admittedly the respondent was not ready and willing to pay these arrears of rent before the application for eviction was filed; the order, therefore, of the Municipal Commissioner directing the respondent to deliver possession of the house (No. 5 Junikasera Bakhal) to the appellant is valid and one passed on the basis of a distinct finding that the respondent was not ready and willing to pay the arrears of rent before the appellant presented his application to the Rent Controller for evicting the respondent. 6. The learned counsel for the respondent does not dispute the proposition put forward by the appellant with regard to the jurisdiction of the Rent Controller or the Municipal Commissioner to entertain the appellant's application for ejecting the respondent. Mrs. Gandhe for the respondent, however, contends that the conditions about the non-payment of rent and the unwillingness of the tenant to pay the rent laid down in S. 8 (ii) of the Rent Control Order, are conditions which apply at the date of the making of the order by the Controller, and that even if the tenant has made any default in paying the cent and is unwilling to pay the same at the time that the application for ejectment is filed, yet be has under S. 8 (2) a locus paenitentiae and if he brings arrears of rent in the proceedings More the Controller and expresses his willingness in these proceedings to pay that amount, the Rent Controller cannot make an order directing the tenant to put the landlord in possession of his premises. In support of this contention reliance has been placed on behalf of the respondent on a decision of a Single Bench of this Court in Brijlal v. Gaya Prasad, Civil Second Appeal No. 62 of 1948 decided on 9th July 1948. Counsel for the respondent further urges that the respondent was ready and willing to pay the arrears of rent in the proceedings before the Rent Controller, but neither the Controller nor the Municipal Commissioner took into consideration the respondent's readiness and willingness to pay the rent. Counsel for the respondent further urges that the respondent was ready and willing to pay the arrears of rent in the proceedings before the Rent Controller, but neither the Controller nor the Municipal Commissioner took into consideration the respondent's readiness and willingness to pay the rent. Nor did the trial Court in the suit frame an issue on the question whether the respondent was or was not ready and willing to pay the arrears of rent in the proceedings before the Rent Controller. It is argued that as the order of the Municipal Commissioner was made in the absence of an inquiry and a finding that the respondent was not ready and willing to pay the arrears of rent at the time of making of the order for ejectment, it is without jurisdiction. 7. The first question that arises for decision in this appeal is whether in the above circumstances the civil Court has any jurisdiction to entertain a suit to interfere with the order of the Municipal Commissioner or the Rent Controller. We agree with the learned Single Judge that the civil Court can entertain such a suit if the Rent Controller or the Municipal Commissioner in making the order they did acted without, or in excess of their jurisdiction. It is settled law that if a body is constituted by Statute to exercise certain functions, then a civil Court cannot either interfere with those functions or treat an act done by the body as a nullity unless the civil Court has some special supervising power, for example, by way of appeal, or unless the body has acted in doing the act, outside its powers. The matter is now concluded by several decisions of their Lordships of the Privy Council. In Secretary of State v. Fahamidannissa Begum, 17 Cal. 590: (17 i. a. 40 p. c.) the Privy Council held that the Board of Revenue could not by purporting to exercise jurisdiction which they did not possess make their order upon such a matter final and exempt themselves from the control of the civil Court. Again in Secretary of State v. Jatendra Nath Chaudhary, a. i. R. (11) 1924 P. C. 175 : (51 Cal. Again in Secretary of State v. Jatendra Nath Chaudhary, a. i. R. (11) 1924 P. C. 175 : (51 Cal. 802) their Lordships observed in relation to proceedings under the Bengal Alluvion and Diluvion Act that though the proceedings were declared to be final under the Act "a defiance or non compliance with the essentials of the procedure would still give ground for questioning the proceedings in the Court of Law." In the recent decision Secretary of State v. Mask and Co., a. i. R. (27) 1940 P. C. 105 : (I. L. R. (1940) Mad. 599) their Lordships of the Judicial Committee stated that it is well settled that even if the jurisdiction of the civil Court is excluded, the civil Court has jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of Judicial Procedure. This general principle cannot be better stated than as put by the Privy Council in Colonial Bank Australarian v. Willian, (1874) 30 L. T. 237 : (L. R. 5 P. C. 417). Their Lordships stated in this case that where an order of a quasi-judicial authority is objected to before a Court, it has to be seen whether the objection relates "to defect of jurisdiction, founded on the character and constitution of the tribunal, the nature of the subject-matter of the inquiry, or the absence of some preliminary proceedings which was necessary to give jurisdiction to it." If any of these things is established, the order is coram non judice and void. If, however, "the objection rests solely on the ground that the tribunal has erroneously found a fact which it was competent to try, the objection cannot be entertained." In view of these Privy Council decisions with which we are in respectful agreement, it is not necessary to examine the large number of cases referred to by Mr. Samvatsar on behalf of the appellant, to point out the distinction between an erroneous decision and a decision that is a nullity and stress the principle that so long as a body constituted by Statute acts within its powers, its orders, whether right or wrong, cannot be challenged except in the manner and to the extent prescribed in the Statute, and the Courts of the ordinary jurisdiction cannot question them. 8. 8. The question here is, of course, whether in making an order directing the respondent to put the appellant landlord in possession of the house, the Municipal Commissioner can be shown to have acted without, or in excess of his jurisdiction. Section 8 (2), Rent Control Order, 1943, as it stood at the time of the proceedings before the Bent Controller provided: Section 8 (2). "a landlord wishing to evict a tenant in possession shall apply to the Controller for a direction in that behalf. If the Controller after giving the tenant a reasonable opportunity of showing cause against the application is satisfied. (i) that the tenant has not paid and is not ready and willing to pay, the rent due in respect of the period before such application; or ................ the Controller shall make an order directing the tenant to put the landlord in possession of the house; and if the Controller is satisfied he shall make an order rejecting the application." 9. It is clear from this sub-section that no power is given to the Controller to make an order ejecting the tenant unless he is satisfied that the tenant has not paid the rent due in respect of the period before the landlord's application and that the tenant is not ready and willing to pay the same. If the Controller is so satisfied, he has to make an order directing the tenant to put the landlord in possession of his premises. If the Controller is not satisfied as to the matters mentioned in S. 8 (2), he can make no order directing the tenant to vacate the premises. For, that would mean that tenants might be ejected from the premises merely by the ipse dixit of the Controller; and the provisions put in the Rent Control Order for the protection of landlords and tenants might be wholly disregarded. In our judgment S. 8 (2) provides for conditions precedent to the making of an order, and it is only an order made after compliance with these conditions precedent that has effect as a final order under S. 9 (3) of the Rent Control Order. In our judgment S. 8 (2) provides for conditions precedent to the making of an order, and it is only an order made after compliance with these conditions precedent that has effect as a final order under S. 9 (3) of the Rent Control Order. If, therefore, in this case the Municipal Commissioner, had satisfied himself as to the matters mentioned in S. 8 (2) (i) then his order directing the respondent to put the appellant in possession of the house would be final and it would not be open to the civil Court to question it. The learned single Judge thinking 'hat the payment of rent and the readiness and willingness of the tenant to pay refers to the time when the Controller has to make his order, has held that as the Municipal Commissioner did not decide this question and satisfy himself whether the respondent-tenant was ready and willing to pay at the time of the making of the order the rent due, there was want of jurisdiction in the Municipal Commissioner in making the order he did. We do not think that is the proper construction of S. 8 (2), Indore House Rent Control Order 1943. A suit or an application must be tried and decided on the cause of action as it existed at the date of its commencement. The exceptional doctrine that the Court may in suitable cases take notice of the facts coming into existence after the filing of the suit or application and give relief on the basis thereof cannot be applied here for to do so would be to give manifest advantage or disadvantage to one party. Under S. 8(2) there is a right in the landlord to possession if when the application is presented the tenant is in default in paying the rent and is not willing to pay it. This right of the landlord cannot be defeated by the tenant bringing the amount of arrears of rent and expressing his readiness and willingness to pay it before the Controller directs him to put the landlord into possession of the premises. Otherwise the landlord will be unable to evict the tenant even if he refuses to pay the rent. This right of the landlord cannot be defeated by the tenant bringing the amount of arrears of rent and expressing his readiness and willingness to pay it before the Controller directs him to put the landlord into possession of the premises. Otherwise the landlord will be unable to evict the tenant even if he refuses to pay the rent. For every time that the landlord presents application to eject the tenant, be has only to bring the arrears of rent before the Controller and then withhold it again until such time as the landlord chooses to present a fresh application. Counsel for the respondent has relied on a decision of this Court in Brijlal v. Gayaprasad, civil Second Appeal No. 62/1948 in support of the contention that the conditions laid down in S. 8 (2) (i) are conditions which apply at the date of order. In that case Sanghi J. (the decision under appeal is also of Sanghi J.) has held that in the expression " is not ready and willing to pay the rent" the use of the present tense should be construed as importing a condition precedent which must exist at the time when the order for ejectment is passed. With great respect to the learned Judge, we do not find ourselves in agreements with this view. We thick that the present tense has been used to describe the conduct of the tenant which entitled the landlord to eject the tenant i. e., the conduct of the tenant up to or at the time when the application for ejectment, is filed. We are confirmed in the view we have taken of the meaning of S. 8 (2) (i) by a decision of the Bombay High Court referred to by counsel for the appellant. In Ismail Dada v. Bai Zuleikhabai, A. i. r. (31) 1944 Bom. 181: (I. l. r. (1944) Bom. 361) Stone C. J. and Kania J. considered similar expression used in 8.11, Bombay Rent Restriction Act, 1939, which was as follows: '"No order for the recovery of possession of any premises shall be made so long as the tenant pays or is read; and willing to pay rent to the full extent allowable by the Act and performs the other conditions of the tenancy." The learned Judge following an earlier decision of that High Court Mathura Das v. Nathubhai, A. I. R. (10) 1923 Bom. 887 : (47 Bom. 756) held that the section was worded in the present tense and the relevant point of time to consider is the time when the suit is filed. We, therefore, think that the conditions in S. 8 (2) (i) of the Rent Control Order are conditions which must be fulfilled on the date of filing of the landlord's application for ejectment i. e., at the date of the cause of action for ejectment. 10. On the question whether the respondent-tenant had not paid the rent due and was not ready and willing to pay the same on the date the appellant filed his application for ejectment, we think, it is abundantly clear from the evidence on record that the Municipal Commissioner had satisfied himself that when the appellant presented the application for ejectment, the respondent was in arrears of rent and was not ready and willing to pay the same to the appellant and in fast contended that he was justified in withhoding the payment of the rent. The conclusion, therefore, follows that the order dated 11-10-1946 of the Municipal Commissioner made after compliance with the conditions precedent mentioned in S. 8 (a) (i), Bent Control Order is in exercise of his jurisdiction and the civil Court is precluded from saying that the order is a nullity because the power to make the order never arose. The plaintiff - Respondent's suit must, therefore, be dismissed. 11. As regards the question of costs in this case we consider that it would be proper if we direct the parties to bear their own costs in all the Courts, for the main point on which this appeal is being allowed, has been raised for the first time by the appellant in this appeal. In none of the Courts below the appellant urged that the question of readiness and willingness of the respondent to pay the rent after the application for ejectment was filed is immaterial in making an order of ejectment under S. 8 (a) (i). 12. For the above reasons, we allow this appeal, set aside the decree of the learned single Judge of this Court and affirm the decree of the Court of the District Judge, Indore, with the direction that, the parties shall bear their own costs in all the Courts.