The amount payable by the petitioners was interest on the mortgage money and not rent for use and occupation of the mortgaged properties, and therefore, they could not be described as tenants within the meaning of the Bihar Buildings Control Act, 1947.

Sahai, J.

1. This is an application under Article 226 of the Constitution of India for issue of an appropriate writ, quashing the order of the Commissioner of the Patna Division in a case under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. No relief has been claimed against the State of Bihar which appears to have been unnecessarily impleaded as opposite party No. 2.

2. It appears that the petitioners took a loan of Rs. 20,000.00 from opposite party No. 1 and executed a rehan deed on 5-7-1945, giving in mortgage their houses, godown and orchard etc. On 7-7-1945, the petitioners took back the rehan pro-"perties on lease on the basis of karayanama wherein it was stipulated that the petitioners would, pay Rs. 100.00 per month as rent to opposite party No. 1. The rate of interest for the loan advanced on the basis of the rehan was -/8/- per hundred per month and the total interest on Rs. 20,000.00 came to Rs. 100.00 per month. Under another rehan deed executed on 14-9-1945, the petitioners took a further loan of Rs. 14,500.00 from opposite party no. 1 and gave the same properties, in rehan. The total interest on this amount came to Rs. 72/8/-per month. Thereafter, the petitioners executed a fresh Kerayanama in respect of the lease of these properties, stipulating to pay Rs. 172/8/- instead of Rs. 100.00 per month to opposite party no. 1 with effect from 1-10-1945. All these facts are mentioned in the kerayanama itself.

3. Opposite party no. 1 filed an application under Sec.11, Bihar Buildings Control Act, 1947, before the House Controller for an order of eviction of the petitioners on the ground that the petitioners had not paid rent for the period from 15-9-1945 to 15-10-1947 and that they had sublet portions of the house without his permission. By his order dated 27-12-1950, the House Controller ordered the petitioners to vacate the house. The petitioners filed an appeal before the Collector, who, by his order dated 25-G-1951, set aside the House Controllers order on the ground that the petitioners were not tenants under opposite party No. 1, because the amount which they had agreed to pay as rent was in the nature of interest on the money advanced to them by opposite party No. 1. Opposite Party no. 1 filed an application for revision before the Commissioner, Patna Division. By his order dated 19-4-1952, the Commissioner set aside the Collectors order on the ground that he had acted beyond his jurisdiction in dealing meanings into the kerayanama which were different from the clearly stipulated terms. He also directed the petitioners to vacate the house. The petitioners have prayed for quashing of this order.

4. The point which has been taken before us on behalf of the petitioners is that no application under Sec.11, Bihar- Buildings Control Act, 1947 could be entertained at all, because the petitioners are not tenants within the meaning of that Act. The word "tenant" has been defined in Sec.2(h) of the Act as follows :

"(h) tenant means any person by whom, or on whose account, rent is payable for a building and includes a person continuing in possession after the termination of the tenancy in his favour." The contention on behalf of the petitioners is that the amount which was payable by the petitioners to opposite party No. 1 was really the interest which they had to pay on the mortgage money advanced to them and not rent for the houses, godown, orchard, etc., which were taken in lease by them. The word rent has not been defined in the Act, but it certainly connotes a thing or an amount of money payable for use and occupation of lands or buildings."

The second kerayanama executed by the petitioners itself shows that the amount which they agreed to pay as rent was Rs. 100/-, because the total interest payable at the stipulated rate of -/8/-per hundred per month on the sum of Rs. 20,000.00 borrowed by them came to Rs. 100.00 per month. It further shows that they agreed to pay Rs. 172/8/-per month becau