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1949 DIGILAW 77 (PAT)

Hira Lal Sao v. Ramrekha Sao

1949-11-10

B.P.JAMUAR, IMAM

body1949
Judgment Imam, J. 1. The petitioner is the tenant of a gola, and the opposite party Ramrekha Sao is said to be the landlord of that gola. The petitioner has moved this Court for the quashing of the proceedings against him for an alleged contravention of an order passed by the Controller under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act (III [3] of 1947). The opposite party moved the Sub divisional Magistrate of Dinapore on 5th December 1947, for the eviction of the petitioner from the gola, and the Sub-divisional Magistrate issued a notice to the petitioner under the provisions of the aforesaid Act It was argued before the Sub-divisional Magistrate that no rent was due from the petitioner to the landlord; on the contrary, if the accounts were examined, then after adjustment of the amount due under the rent payable by the petitioner, there would be a sum due also from the landlord on account of the amount spent by the petitioner in the repairs of the gola. The Sub-divisional Magistrate spent the matter to another Magistrate, Mr. Tripathy, for enquiry and report as to this. In the report which Mr. Tripathy submitted on 3rd August 1943, it is said that; the landlord did not dispute the amount spent on repairs, but challenged the right of the tenant to make the repairs. On 24th August 1948, the Sub-divisional Magistrate after hearing the parties and considering the report of Mr. Tripathy held that the expenditure made by the petitioner was unauthorised. He directed the petitioner to put the landlord Ramrekha Sao in possession of the gola by 25th November 1948. Against this order, the petitioner appealed to the Commissioner of the Division under Section 18 of the Act, and the Commissioner affirmed the decision of the Sub-divisional Magistrate by his order dated 17th January 1949. The landlord, Ramrekha Sao, moved a petition before the Sub divisional Magistrate praying that the petitioner should be proceeded against for contravention of his order dated 24th August 1948. On 16th February 1949, the Sub divisional Magistrate ordered that summons should issue against the petitioner for an offence punishable under Sec.20 of the Act. The landlord, Ramrekha Sao, moved a petition before the Sub divisional Magistrate praying that the petitioner should be proceeded against for contravention of his order dated 24th August 1948. On 16th February 1949, the Sub divisional Magistrate ordered that summons should issue against the petitioner for an offence punishable under Sec.20 of the Act. On 11th March 1949, the petitioner filed a suit before the Munsif at Patna for a declaration that the order of the Sub-divisional Magistrate dated 24th August 1948, was without jurisdiction and not binding upon him and praying for a permanent injunction against the opposite party restraining him from carrying into effect the order of the Sub-divisional Magistrate dated 24th August 1948, and evicting the petitioner. There was also a prayer for ad interim injunction. On 2lst March 1949, the Munsif issued notice on the opposite party to show cause why this prayer should not be allowed, fixing 2nd April 1949 for hearing. The Sub-divisional Magistrate, however, on 21st March 1949, issued summons against the petitioner for an offence punishable under Sec.20 (2) of the Act. On 5th April 1949, the petitioner appeared before the Sub-divisional Magistrate in answer to the summons, but the case was adjourned to 29th April 1949. On 23rd April 1949, the Munsif passed an ad interim injunction restraining the opposite party from evicting the petitioner. On 29th April 1949, the petitioner moved the Sub-divisional Magistrate and produced before him a certified copy of the Munsifs order. No action, however, was taken by the Sub-divisional Magistrate on this date. On 6th May 1949, the Sub-divisional Magistrate was of the opinion that as the proceedings before him had not been stayed by a civil Court, the case against the petitioner should continue. The Munsif actually thereafter decreed the suit of the petitioner, and I am informed by the learned advocate for the opposite party Ramrekha Sao that an appeal is pending before the District Judge against that decision. It is in these circumstances that the petitioner prays that the present proceedings against him may be quashed. 2. Mr. Ghoshal for the opposite party Ramrekha Sao strongly contended that in the eye of the law an offence had been committed by the petitioner and there was no ground for the quashing of the proceedings. It is in these circumstances that the petitioner prays that the present proceedings against him may be quashed. 2. Mr. Ghoshal for the opposite party Ramrekha Sao strongly contended that in the eye of the law an offence had been committed by the petitioner and there was no ground for the quashing of the proceedings. The utmost that could possibly be done in the circumstances of the present case was to stay the proceedings until the disposal of the appeal against the Munsifs decision, which was pending before the District Judge. I must say in fairness to Mr. Ghoshal that this latter submission of his was made with the greatest reluctance. 3. I am inclined to take the view that in the present circumstances the summons which was issued upon the petitioner was premature, and the proceedings should be quashed, subject of course to the right of the opposite party Ramrekha Sao to take such steps as he thinks he is entitled to in law when the appeal before the District Judge is disposed of and the proceedings before the civil Court are finally concluded. As I read Sec.11 of the Act, Sub-section (1) is a general protective clause by which a tenant is protected from eviction except in certain circumstances. Sub-section (2) permits a landlord to evict his tenant in the circumstances stated in Sub-section (1), if he applies to the Controller for a direction in that behalf. The Controller may, after hearing the parties and if satisfied that the tenant is liable to be evicted under the provisions of Sub-section (1), make an order directing the tenant to put the landlord in possession of the holding. Sub-section (3) permits a landlord to apply to the Controller for an order directing the tenant to put the landlord in possession of the building, if he requires it reasonably and in good faith for his own occupation or for the occupation of any person for whose benefit the building is held by him, and Clause (b) of this subsection authorises the Controller, if satisfied that the claim of the landlord is bona fide, to direct the tenant to put the landlord in possession of the building on such date as may be specified by him in his order. It will thus be seen that the provisions of Sub-section (3) of Sec.11 refer to circumstances quite distinct from those mentioned in Sub-sections (1) and (2) of the section. Sub-section (4) of Sec.11 will, in my opinion, have some relevancy for consideration in the present case. It provides that "Where a landlord who has obtained possession of a building in pursuance of an order under Sub-section (3) does not himself occupy it within fifteen days of the date of obtaining possession, or having occupied it re-lets it within two months of the said date to any person other than the original tenant, the original tenant who has been evicted may, within three months of the said date, apply to the Controller for an order directing that he shall be restored to possession of the building and the Controller shall make an order accordingly." The reason why I have referred to these provisions is to emphasise the clear distinction between the provisions of Sub-section (3) and Sub-sections (l) and (2) of Sec.11 of the Act. It seems to me perfectly clear on the provisions of Sec.11 that whereas an order passed under Sub-section (3) authorises the Controller to direct a specific period within which the tenant should pub the landlord in possession, Sub-section (2) does not specifically direct the Controller to fix any period during which the tenant has to put the landlord in possession. Sec.18 of the Act provides for appeals against orders passed by the Controller. It seems to me that when the right to appeal is given, and the aggrieved party has appealed to the Commissioner of the Division to whom appeals lie under the section, then obviously the tenant is not bound to put the landlord into possession, as he is questioning the order itself. In the present case, the landlord had asked that the petitioner should vacate the gola on the ground of non-payment of rent, that is to say, in the circumstances stated in Sub-sections (l) and (2) of Sec.11 of the Act. The Sub-Divisional Magistrate would not have acted illegally if he had not fixed any definite period for the tenant to put the landlord into possession by his order which could only be mads under Sub-section (2) of Sec.11. The Sub-Divisional Magistrate would not have acted illegally if he had not fixed any definite period for the tenant to put the landlord into possession by his order which could only be mads under Sub-section (2) of Sec.11. After the appeal had been disposed of by the Commissioner, there is no doubt that the landlord had moved the Sub-Divisional Magistrate for proceedings to be taken against the petitioner for the commission of an offence punishable under Sec.20 of the Act. Summons, however, had not been issued till 21st Match 1949. In the meantime, on 11th March 1949, the petitioner had filed a suit before the Munsif of Patna for a declaration that the order of the Sub-Divisional Magistrate was without jurisdiction and not binding upon him. There was also a prayer for ad interim injunction. I think that in these circumstances the Sub-Divisional Magistrate ought to have recalled the summons particularly when he had been informed on 29th April 1949, and shown the order of the Munsif. It was highly technical for the Sub-Divisional Magistrate to have said that the proceedings had not been stayed by the civil Court. In my opinion, in the circumstances of the present case, the present proceedings must be quashed. When the suit of the petitioner has been finally disposed of by the civil Court in all stages, any circumstances arising therefrom which may entitle the opposite party, the landlord, to ask the Sub-Divisional Magistrate for the issue of a fresh summons upon the petitioner may be brought to the notice of the Magistrate having jurisdiction, who, no doubt, will take the necessary steps according to law. 4 I have been referring to the Sub-Divisional Magistrate in this case as the Sub-Divisional Magistrate, but it appears that he is the Controller under the Act under a notification of the Provincial Government. 5. The application is accordingly allowed. and the rule is made absolute. Jamuar, J. 6 I agree.