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1952 DIGILAW 75 (PAT)

Sagarmal Jain v. Ramjiwan Sah

1952-07-15

S.K.DAS, V.RAMASWAMI

body1952
Judgment Ramaswami, J. 1. In this case the petitioner has obtained a rule calling upon the opposite party, Ramjiwan Sah, to show cause why a writ in the nature of certiorari or mandamus should not be issued and the execution proceedings pending in the court of the Subdivi-sional Officer, Deoghar, should not be quashed. Cause was shown against the rule by Mr. Lal Narain Sinha on behalf of Ramjiwan Sah upon whom the notice of the rule was directed to be given. 2. The petitioner is a tenant of a cinema house located in holding No. 26, ward No. 6, of the Deoghar Municipality, of which the opposite party, Ramjiwan Sah, is the proprietor. In the year 1943, there was a verbal lease with respect to the holding on the basis of which the petitioner was put in possession. On the 14th of November 1944, a written lease was executed and registered for a period of five years from the 1st of November 1944 to the 31st of October 1949. On the 2nd of November 1950, the opposite party made an application under Section 11(1)(b) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, for evicting the petitioner on the ground that the period of tenancy had expired. After notice to the parties the Rent Control Officer made an order on the 8th of January 1951, evicting the petitioner from the building in the suit. The petitioner preferred an appeal to the Commissioner, Bhagalpur Division, but the appeal was dismissed and the order of the Rent Control Officer was affirmed. Thereafter, the petitioner instituted a suit, namely, Title Suit No. 16 of 1951, in the court of the Subdivisional Officer of Deoghar, asking for a declaration that the order of the Rent Control Officer dated the 8th January, 1951, and the order of the Commissioner of Bhagalpur Division were without jurisdiction and ultra vires. The petitioner also asked for a permanent injunction restraining the opposite party from executing the order of eviction passed by the House Control Officer. The petitioner also prayed for certain other reliefs which are not material for the disposal of the present case. After the suit was instituted before the Subordinate Judge the petitioner filed an application for an order of temporary injunction restraining the opposite party from executing the order of the Rent Control Officer. The petitioner also prayed for certain other reliefs which are not material for the disposal of the present case. After the suit was instituted before the Subordinate Judge the petitioner filed an application for an order of temporary injunction restraining the opposite party from executing the order of the Rent Control Officer. The Subordinate Judge refused to grant temporary injunction on the 30th of April 1951. Against the order of the learned Subordinate Judge the petitioner preferred an appeal to the High Court. The appeal was dismissed and the High Court refused to grant temporary injunction restraining the opposite party from executing the order of eviction passed by the Rent Control Officer. The order of the High Court was passed on the 4th of May 1951. 3. The petitioner thereafter filed an objection under Sec. 47, Civil P. C., in the court of the Subordinate Judge of Deoghar where the opposite party had applied for executing the order of the Rent Control Officer. The petitioner objected on the ground that the court of the Subdivisional Officer of Deoghar had no jurisdiction to proceed with the execution under Sec.17 of the Bihar Buildings (Lease, Rent and Eviction) Control Act 1947, since the pecuniary jurisdiction of the Subdivisional Officer extended only to Rs. 500.00 whereas the annual rent reserved under the lease was Rs. 2000/-. The objection was rejected by the Subdivisional Officer who held that he had jurisdiction to execute the order of the Rent Control Officer dated the 8th January 1951. Not satisfied with the decision of the Subdivisional Officer of Deoghar, the petitioner preferred an appeal to the Deputy Commissioner of the Santal Parganas who dismissed the appeal. The petitioner then moved the Commissioner of Bhagalpur Division, but the revision application was dismissed on the 29th of February 1952 and the decision of the Sub-divisional Officer was affirmed. 4. In support of this rule it is argued on behalf of the petitioner that the Subdivisional Officer of Deoghar had no jurisdiction to proceed with the execution case and the High Court should issue a writ in the nature of certiorari under Article 226 of the Constitution. 4. In support of this rule it is argued on behalf of the petitioner that the Subdivisional Officer of Deoghar had no jurisdiction to proceed with the execution case and the High Court should issue a writ in the nature of certiorari under Article 226 of the Constitution. The argument is based under Sec.17 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, which states; "Every order of the Controller passed under this Act and every order of the Commissioner passed on appeal under Sec.18 shall be executed by the Court, having jurisdiction to entertain a suit for the recovery of arrears of rent in respect of the building in relation to which the order to be executed is passed, as if such order were a decree passed by such Court." It was argued by Mr. Lala Atul Chandra that the annual rent of the building under the lease was Rs. 2000.00 and since the Subdivisional Officer had jurisdiction to entertain suits for rent only up to Rs. 500.00 the proceedings for execution ought not to have been instituted in his court. It is, however, important to notice that Sec.17 speaks only of a Court having jurisdiction to entertain a suit for the recovery of arrears of rent in respect of the building". As observed by Reuben J. (as he then was) in -- Dasrathi Rai V/s. Kali Charan, AIR 1951 Pat 372 , it is always possible that only a small portion of the rent is in arrear, however high the rent of a particular building may be, and the court of the Munsif will always come under this description. All that the executing court has to ask is whether it has jurisdiction to entertain "a suit" for the recovery of arrears of rent in respect of the building, and if it has, whether it is the court of the lowest jurisdiction which can do so. My learned brother, who was the other member of the Bench which decided that case, was of the opinion that in a case where there is no outstanding arrear of rent a notional arrear has to be resorted in order to give effect to the words used in Sec.17. My learned brother, who was the other member of the Bench which decided that case, was of the opinion that in a case where there is no outstanding arrear of rent a notional arrear has to be resorted in order to give effect to the words used in Sec.17. In that case the arrears then would be one months rent, if a monthly tenancy, or one years rent, if an annual tenancy, or periodical rent, if the tenancy is created for a particular period. With great respect, I think the construction placed by Reuben J. on Sec.17 is the more correct one. In my opinion the words "a suit" in the, clause "court having jurisdiction to entertain a suit" are the dominant words and it is imma-terial what is the actual amount of arrear of rent or actual amount of the monthly or periodical rent. It would follow that in the present case the Subdivisional Officer of Deoghar had jurisdiction to entertain the execution proceedings. Even applying the test adopted by my learned brother, the Subdivisional Officer, Deoghar, had jurisdiction for according to Clause (2) of the registered lease, out of the annual rental of Rs. 2000.00 a sum of Rs. 1000/-had to be paid by the lessee to the lessor every year in quarterly instalments at the rate of Rs. 250.00 per quarter. Clause (3) states that the lessee had advanced Rs. 5000.00 towards rent which was being spent by the lessor for improvements, additions and alterations of the cinema house and the said sum of Rs. 5000/-would be set off towards the annual rent at the rate of Rs. 1000.00 per year. Therefore, even according to the test propounded by my learned brother in -- Dasrathi Rai Chaudhurys case, AIR 1951 Pat 372 it is manifest that the Sub-divisional Officer of Deoghar had jurisdiction to entertain the proceedings for the execution of the order of the rent Control Officer. The argument of Mr. Lala Atul Chandra that the execution proceedings were without jurisdiction must therefore fail. 5. On behalf of the opposite party Mr. Lal Narain Sinha pointed out that in the present case the petitioner preferred an appeal against the order of the Subdivisional Officer of Deoghar holding that he had jurisdiction to entertain the execution proceeding. The appeal was dismissed by the Deputy Commissioner who held that the Subdivisional Officer had jurisdiction. 5. On behalf of the opposite party Mr. Lal Narain Sinha pointed out that in the present case the petitioner preferred an appeal against the order of the Subdivisional Officer of Deoghar holding that he had jurisdiction to entertain the execution proceeding. The appeal was dismissed by the Deputy Commissioner who held that the Subdivisional Officer had jurisdiction. The revision application preferred by the petitioner before the Commissioner of Bhagalpur Division met with a similar fate. On the basis of this fact it was contended by Mr. Lal Narain Sinha that the appellate court in a case which properly comes on appeal is fully competent to decide whether the trial court had or had not acted with jurisdiction, & the appellate court has jurisdiction to decide the matter rightly as well as wrongly. If the appellate court affirms the order of the trial court and thereby decides wrongly, the trial court had jurisdiction to proceed with the execution. It cannot be said, so the argument runs, that the appellate court had acted without jurisdiction and, therefore, the order cannot be treated as a nullity. In support of this argument, Mr. Lal Narain Sinha referred to -- Janardhan Reddy V/s. State of Hyderabad. AIR 1951 SC 217 , wherein it was held by Fazl Ali J. that as regards case No. 17 the charge-sheet was never properly made over to the Tribunal and the trial of the accused in that case was therefore, without jurisdiction. But the learned Judge took account of the fact, that the conviction and sentence had been upheld on appeal by a court of competent jurisdiction. Thus on the principle of constructive res judicata, which applies to civil cases, and finality of judgment, which applies to criminal as well as to civil cases and is implicit in every system of jurisprudence the learned Judge held that the order of the appellate court cannot be treated as a nullity and a writ of habeas corpus cannot be issued. At page 225 of the report Fazl Ali J. states: "The trend of decisions thus seems to be in favour of the view that if it should appear on the face of the return that a person is in detention in execution of a sentence on indictment on a criminal charge, that would be a sufficient answer to an application for a writ of habeas corpus. Assuming, however, that it is open even in such cases to investigate the question of jurisdiction, as was held in --In re Authers, (1889) 22 QBD 345 : 58 LJMC 62 (supra), it appears to us that the learned Judges who decided that case went too far in holding that notwithstanding the fact that the conviction and sentence had been upheld on appeal by a Court of competent jurisdiction the mere fact that the trial Court had acted without jurisdiction to justify interference treating the appellate order also as a nullity. Evidently, the appellate Court in a case which properly comes before it on appeal, is fully competent to decide whether the trial was with or without jurisdiction, and it has jurisdiction to decide the matter rightly as well as wrongly. If it affirms the conviction and thereby decides wrongly that the trial Court had the jurisdiction to try and convict it cannot be said to have acted without jurisdiction and its order cannot be treated as a nullity. It is true that there is no such thing as the principle of constructive res judicata in a criminal case, but there is such a principle as finality of judgments which applies to criminal as well as civil cases and is implicit in every system, wherein provisions are to be found for correcting errors in appeal or in revision. Sec. 430, Criminal Procedure Code and Sec.355 of the Hyderabad Criminal Procedure Code have given express recognition to this principle of finality by providing that "Judgments and orders passed by an appellate court upon appeal shall be final, except in cases provided for in Sec. 417 and Chapter XXXII". Applying the ratio of this case to the admitted facts of the present ease it is clear that the petitioner cannot be granted a writ in the nature of certiorari or of any other nature under Article 226 of the Constitution of India. 6 For the reasons which I have expressed I think that this application fails and must be dismissed with costs. Hearing fee, five gold mohurs. Das, J. 7 I agree. I wish merely to add that, whatever view of Sec.17 is taken, in this case the Subdivisional Officer of Deoghar had jurisdiction, to execute the order of eviction. There is no evidence as to what were the outstanding arrears of rent. Hearing fee, five gold mohurs. Das, J. 7 I agree. I wish merely to add that, whatever view of Sec.17 is taken, in this case the Subdivisional Officer of Deoghar had jurisdiction, to execute the order of eviction. There is no evidence as to what were the outstanding arrears of rent. If a notional arrear is to be taken, it will be the quarterly rent of Rs. 250.00 in view of the terms of the contract between the parties; therefore the Subdivisional Officer of Deoghar had jurisdiction to deal with a suit for recovery of rent in respect of the building in question. 8. The application must fail on this short ground only.