The finding of the Controller on the question of non-payment of rent is a question of fact and cannot be questioned in a civil court.

Sinha, J.

1. This is an application for a writ of certiorari for recalling the record of Revision Case No. 556 of 1951 from the Commissioner of the Patna Division and for quashing the order made in that proceeding on 18-4-1952.

2. The petitioner is the landlord of a building bearing Holding No. l0c in circle No. 22 of the Patna City Municipality situated in Mahalla Muradpur, Police Station Pirbahore, in the town of Patna. Opposite Party l (hereinafter to be referred to as the opposite party) is the tenant of the said holding on a monthly rental of Rs. 55/- for the last several years. It is alleged that, according to the contract, the rent of the holding was payable on the expiry of each month on the 1st day of the succeeding month. The petitioner made an application on 3-4-1951, before the Sub-divisional Officer, Patna, the Controller under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Act 3 of 1947) for an order directing the opposite party to put the petitioner in possession of the said building on such date as the Controller might fix, on the ground the tenant was a habitual defaulter and was liable to eviction for non-payment of rent for the months of January, February and March, 1951.

3. After hearing the parties, the controller, by his order dated 21-7-1951, in B. B. A. Case No. 59 of 1951 rejected the application of the petitioner. There was an appeal to the Collector of Patna by the petitioner, and the Collector allowed the appeal, set aside the order passed by the Controller, by his order dated 20-8-1951, and directed eviction of the opposite party. The opposite party, thereupon, moved the Commissioner of the Patna Division in revision, and the learned Commissioner allowed the application, set aside the order made by the Collector, on appeal, and rejected the application of the petitioner for eviction of the opposite party, by his order dated 18-4-1952. It is against this order that the present application has been made.

4. Sir Sultan Ahmad. learned counsel appearing on behalf of the petitioner, has submitted that the order of the learned Commissioner should be quashed on the ground of an error of law apparent on the face of the record. Before I deal with this point, some further facts have got to be noticed which appear from the application filed by the opposite party in this Court showing cause as to why a writ. of certiorari should not issue. The facts mentioned in the said application were not controverted by any affidavit by the petitioner.

The petitioner had purchased the said holding in 1942 from the Co-operative Bank, to which the holding originally belonged, and the opposite party was the tenant of the holding since before the purchase by the petitioner. With a view to increase the rental, the petitioner started harassing the opposite party in various ways. In 1944, an application was made for eviction of the opposite party on the ground that the landlord needed the building for his own use. The case was, however, dismissed. In 1949 another case was started for the eviction of the opposite party on the ground of non-payment of rent, but ultimately the case was withdrawn lay the petitioner on 19-7-1949. In the aforesaid case it was shown by the opposite party that there was an arrangement between him and the petitioner to the effect that the rent would be collected on behalf of the landlord by one Hira Missir to whom the opposite party and other tenants were to make payment of rent.

The aforesaid Hira Missir was an authorised servant of the petitioner, and he used to come and collect the rent and grant receipts, whenever he so liked. There was never any fixed date for payment of rent, and sometimes rents were paid even in advance and sometimes in a lump for past arrears. The petitioner all the time pressed the opposite party to increase the rent, and the said Hira Missir did not collect rent during the period August, 1950 to December. 1950, and whenever the opposite party tendered r