Rai Brij Raj Krishna vs S. K. Shaw

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1951 Supreme(SC) 8

SUPREME COURT OF INDIA
2nd February 1951
FAZL ALI, MAHAJAN B.K. MUKHERJEA AND CHANDRASEKHARA AIYAR JJ.
Rai Brij raj Krishna and onother - appellants
Versus
Messrs. S. K. Shaw and Brothers -Respondents.
Civil Appeal No. 88 of 1950
Advocates appeared
Shri Baldev Sahay. Senior Advocate (Shri T.K.Prasad, Advocate, with him) instructed by Shri R.C. Prasad, Agent-for Applts.; Shri N. C. Chatterjee, Senior Advocate (Shri H. J. Umrigar, Advocate, with him) instructed by Shri S. P. Verma, Agent -for Respts.

Advocates:
BALDEV SAHAY, H.J.Umrigar, N.C.CHATTERJI, R.C.Prasad, S.P.Varma, T.K.PRASAD

Headnote:Bihar Buildings (Lease, Rent and Eviction) Control Act (III of 1947), S. II (I)(a)-Controller ordering eviction for nonpayment of rent-Jurisdiction of Civil Court to question order. Bihar Buildings (Lease, Rent and Eviction) Control Act (III of 1947), S. U(I) (a)-Controller ordering eviction for non-payment of rent-Jurisdiction of a Civil Court to question order.
       Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, provides:
       "Notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of S. 12, where a tenant is in possession of any building, he shall not be liable to be evicted therefrom whether in execution of a decree or otherwise, except-
       (a) in the case of a month to month tenant, for non-payment of rent or breach of the conditions of the tenancy, or for subletting the building or any portion thereof without the consent of the landlord, or if he is an employ of the landlord occupying the building as an employee, on his ceasing to be in such employment."
       The respondents were in occupation as a monthly tenant of several blocks of premises belonging to the appellants at a monthly rental of Rs. 112. The rent for the months of March, April and May 1947, having fallen into arrears, they remitted it along with the rent for June, on 28th June, 1947, by means of two cheques. As the appellants did not accept the cheques, on 4th August, 1947, the respondents remitted the amount subsequently by postal money order. On 12th August, 1947, the appellants, maintaing that there was non-payment of rent and hence the respondents were liable to be evicted, under section 11 (1) (a) of the said Act applied to the House Controller for the eviction of the respondents from the premises. On 30th August, 1947, the respondents whose mon ey order had in the meantime been returned by the appellants, deposited the rent up to the month of June in the Office of the House Controller. Notwithstanding this deposit, the House Controller passed an order on the 10th November, directing the eviction of the respondents by 10th May, 1948, and holding that they had made themselves lia.ble to eviction by reason of non-payment of rent. This order was upheld by the Commissioner on appeal. Thereupon the respondents filed a suit in the Patna Munsifs Court for a declaration that the order of the Controller dated the 10th November, 1947, was illegal, ultra vires and without jurisdiction. The suit was dismissed and the decree was upheld on appeal, but the High Court decreed the suit holding that the order of the Rent Controller was without jurisdiction. On appeal to the Supreme Court, it was contended by the appellants that having regard to the scheme of the Act, the House Controller was fully competent to decide whether the condition precedent to eviction had been satisfied, and once that -decision had been arrived at, it could not be questioned in a civil court.
       Held: Section 11 is a self-contrained section. It clearly provides that a tenant is not liable to be evicted except on certain conditions, and one of the conditions laid down for the eviction of a month to month tenant is non-payment of rent. Sub-section 3(b) of S. II provides that the
       "Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building"
       and if he is not so satisfied he shall make an order rejecting the application. Section 16 empowers the Controller to make enquiries and inspection and to summon and enforce the attendance of witnesses and compel the production of documents, in the same manner as is provided in C.P.C. Section 18 provides that any person aggrieved by an order passed by the Controller may within IS days of the receipt of such order by him, prefer an appeal to the Commissioner of the Division, and it also prescribes the procedure for the hearing of the appeal.
       Sub-section (3) of this section states that
       "the decision of the Commissioner and subject only to such decision, an order of the Controller shall be final and shall not be liable to be questioned - in any Court of law whether in a suit or other proceeding by way of appeal or revision".
       The Act thus sets up a complete machinery for the investigation of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depends, and it expressly makes his order final and subject only to the decision of the Commissioner. The Act empowers the Controller alone to decide whether or not there is non-payment of rent, and his decision on that question is essential before an order can be passed by him under S. II. Even if the Controller may be assumed to have wrongly decided the question of non-payment of rent, this order cannot be questioned in a civil court. Appeal must therefore be accepted.

Judgment

Fazl Ali, J. :- This is an appeal from a judgment & decree of the H. C. of Judicature at Patna reversing the appellate decree of a Subordinate Judge in suit instituted by the resps. The facts of the case are briefly these. The resps. have been in occupation as a monthly tenant of several blocks of premises belonging to the applts. at a monthly rental of Rs. 112. The rent for the months of March, April & May, 1947 having fallen into arrears, they remitted it along with the rent for June, on 28-6-1947, by means of two cheques. As the applts did not accept the cheques, on 4-8-1947, the resps. remitted the amount subsequently by postal money order. On 12-8-1947, the applts. maintaining that there was non-payment of rent & hence the resps. were liable to be evicted, under S. 11 (1) (a), Bihar Building (Lease, Rent & Eviction) Control Act, 1947 (III [3] of 1947), applied to the House Controller for the eviction of the resps. from the premises. Section 11 (1) (a) of the Act runs as follows: "Notwithstanding anything contained in any agreement or law to the contrary & Subject to the provisions of S. 12, where a tenant is in possession of any building, he shall not be liable to be evicted therefrom, whether in execution of a decree or otherwise, except- (a) in the case of a month to month tenant, for non-payment of rent or breach of the conditions of the tenancy, or for subletting the building or any portion thereof without the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment;"

2. On 30-8-1947, the resps. whose money order had in the meantime been returned by the applts. deposited the rent up to the month of June in the Office of the House Controller. Notwithstanding this deposit, the House Controller passed an order on 10th November, directing the eviction of the resps. by 10-5-1948, & holding that they had trade themselves liable to eviction by reason of non-payment of rent. The order of the House Controller was upheld by the Comr. on appeal on 27-4-1948, & there upon the resps. filed the present suit in the Patna Munsif s Ct. for a declaration that the order of the Controller dated 10-11-1947 was illegal, ultra vires & without jurisdiction. The suit was dismissed by the Munsif & his decree was upheld on appeal, but the H. C. decreed the suit holding that the order of the Rent Controller was without jurisdiction. The applts. were thereafter granted leave to appeal by the H. C. & they have accordingly preferred this appeal.

3. The H. 0. has delivered a somewhat elaborate judgment in the case, but it seems to us that the point arising in this appeal is a simple one. The main ground on which the resps. have attacked the order of eviction passed by the House Controller is that in fact there was no non-payment of rent, & since no eviction can be ordered under the Bihar Act unless non-payment is established, the House Controller had no jurisdiction to order eviction. On the other hand, one of the contentions put forward on behalf of the applts is that there was non-payment of rent within the meaning of that expression as used in the Act, since the rent was not paid as & when it fell due. It was pointed out that the rent for the month of March became due in April and the rent for April became due in May, but no step was taken by the resps. to pay the arrears until 28-6-1947. It appears that at the inception of the tenancy, the resps. had paid one month s rent in advance, & it had been agreed between them & the applts that the advance rent would be adjusted whenever there was default in payment of rent for full one month. It was however pointed out that the advance payment could be adjusted only for one month s rent, but, in the present case, the rent for three months had become due, & since in a monthly tenancy the rent is payable from month to month, the rent for each month becoming due in the subsequent month, non-payment of that rent a

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