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1951 DIGILAW 87 (PAT)

Ramchandra Ram v. Ram Ratan Prasad

1951-07-20

CHATTERJI

body1951
Judgment Chatterji, J. 1. This is an appeal by the defendant in a suit brought by. the plaintiffs for a declaration that the order passed by the learned Additional Commissioner of Patna & Trihut for ejectment of the defendant (sic) from a house was without jurisdiction and not binding on the plaintiffs. 2. The plaintiffs are monthly tenants of a house of which the defendant is the landlord. The plaintiffs had taken lease of the house from the previous owner from whom the defendant purchased the proprietary interest in March, 1944. After some previous unsuccessful attempts to eject the plaintiffs, the defendant filed an application under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, before the Subdivisional Officer for eviction of the plaintiffs on the ground of non-payment of rent. After enquiry, the learned Sub-divisional Officer, by his order dated the 19th May 1949, rejected the defendants application and allowed the plaintiffs to deposit the rent of the house in Court. Against that order the defendant preferred an appeal to the Commissioner. This appeal was heard by the learned Additional Commissioner who by his order dated the 26th July, 1949 directed the plaintiffs to vacate the house by 27h October 1949. He found that there was non-payment of rent and, therefore, the plaintiffs were liable to be evicted. 3. On 17th September 1949, the plaintiffs brought the present suit for a declaration that the said order dated the 26th July 1949 of the learned Additional Commissioner was without jurisdiction and not binding on them. It was alleged that the plaintiffs never defaulted in payment of rent and in fact there was no nonpayment of rent for which they could be evict- ed under the provisions of Bihar Buildings Control Act. 4. The defence was that there was in fact non-payment of rent, as found by the learned Additional Commissioner, and that his order could not be questioned by the civil Court. 5. The learned Munsif who tried the suit held that in fact the plaintiffs did not pay some arrears of rent and that the learned Additional Commissioner was justified in passing the order for eviction. He further held that under Section 18 (3) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, the order of the learned Additional Commissioner could not be questioned by the civil Court. He accordingly dismissed the suit. He further held that under Section 18 (3) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, the order of the learned Additional Commissioner could not be questioned by the civil Court. He accordingly dismissed the suit. 6. Against his decision the plaintiffs preferred an appeal to the district Court. The learned Subordinate Judge, who heard the appeal, upon a consideration of the evidence, came to the finding that the plaintiffs never defaulted in payment of rent and they were never in arrears and that, therefore, the order dated the 26th July 1949 "passed by the learned Additional Commissioner was without jurisdiction and as such not binding on the plaintiffs. Hence this second appeal by the defendant. 7. The learned Subordinate Judge, in deciding that the order of the learned Additional Commissioner dated the 26th July 1949 was without jurisdiction, relied on the decision of this Court in S.K. SHAW AND BROS. V/s. BRIJ RAJ, AIR (36) 1949 Pat 474. In that case it was held: "Reading Sec.18(3) of the Act, in this context, it is clear what it excludes is the jurisdiction of the civil Court to question the order of the Controller, provided the fact for which the order is made is not non-existent. It certainly does not exclude the jurisdiction of the civil Court to examine into cases where the order is made in the absence of the fact, on the existence of which alone depends the jurisdiction of the Controller." But this decision was reversed on appeal, by the Supreme Court in BRIJ RAJ KRISHNA V/s. S. K. SHAW AND BROS., AIR (38) 1951 S C 115. Their Lordships of the Supreme Court after referring to the relevant provisions of the Bihar Buildings (Lease Rent & Eviction) Control Act of 1947, said: ".....the Act has entrusted the Controller with a jurisdiction, which includes the jurisdiction to determine whether there is nonpayment of rent or not, as well as the jurisdiction, on finding" that there is non-payment of rent, to order eviction of a tenant. Therefore even if the Controller may be assumed to have wronglv decided the question of nonpayment of rent, which by no means is clear his order cannot be questioned in a civil Court." 8. Mr. Therefore even if the Controller may be assumed to have wronglv decided the question of nonpayment of rent, which by no means is clear his order cannot be questioned in a civil Court." 8. Mr. Ganesh Sharma on behalf of the respondent relies on Privy Council decision in SECRETARY OF STATE V/s. MASK AND CO., 67 Ind App 222 (PC), in which it was laid down: "It is settled law that the exclusion of the jurisdiction of the civil Court is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil Courts have 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." But this very passage from the Privy Council decision was referred to and relied Upon by this Court in the aforesaid case S.K. SHAW AND BROS V/s. BRIJ RAJ, AIR (36) 1949 Pat 474. 9 The said decision of the Supreme Court is exactly in point and it is binding on this Court. In the face of this decision of the Supreme Court, it is impossible to hold that where the Rent Controller orders eviction of a tenant on the finding that there was non-payment of rent, his decision can be questioned in the civil Court. It, therefore, follows that the order of the learned Additional Commissioner dated the 26th July 1949 was passed with full jurisdiction and it cannot be questioned in the civil Court. 10. The appeal is accordingly allowed, the decision of the learned Subordinate Judge is set aside and that of the trial Court restored. The appellant will be entitled to his costs in this Court as well as in the lower appellate Court.