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PATNA HIGH COURT
V.Ramaswami and Raj Kishore Prasad JJ.
Chironjilal Poddar
Versus
Madhusudan Thakur
Miscellaneous Judicial Case No. 704 of 1955 ;
Decided On : NOVEMBER 21, 1956
BIHAR BUILDINGS (LEASE, RENT AND EVICTION) CONTROL ACT, 1947 - SEC. 11(1)(A) - NON-PAYMENT OF RENT - INTERPRETATION - IMPLIED AGREEMENT BETWEEN LANDLORD AND TENANT - WAIVER OF NOTICE - JURISDICTION OF CONTROLLER - FINALITY OF ORDER.
Fact of the Case:
The petitioner, a landlord, sought to evict the opposite party tenants under Sec. 11(1)(a) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, on the ground of non-payment of rent for 14 months. The Controller and Collector ordered eviction, but the Commissioner set aside the eviction order. The petitioner challenged the Commissioner's order by way of a writ petition.
Finding of the Court:
The court held that the Commissioner did not commit an error of law apparent on the face of the order. The court found that there was an implied agreement between the landlord and the tenants that the landlord would accept rent even after the expiry of each month. The court also held that the question of non-payment of rent was a question of fact within the jurisdiction of the Controller, and his decision was final under Sec. 18(3) of the Act.
Issues: 1. Whether there was non-payment of rent within the meaning of Sec. 11(1)(a) of the Act. 2. Whether the Commissioner erred in law in setting aside the eviction order.
Ratio Decidendi: 1. The court interpreted the words "non-payment of rent" in Sec. 11(1)(a) of the Act in light of the definition of "month to month tenant" in Sec. 2(a) of the Act. The court held that the time of payment of rent depends on the express or implied agreement between the parties. 2. The court held that the Commissioner had jurisdiction to determine the question of non-payment of rent and his decision was final under Sec. 18(3) of the Act.
Final Decision: The court discharged the rule and rejected the petitioner's application for a writ, holding that no case was made out for issuing any writ.
Raj Kishore Prasad, J.
1. In this case, the petitioner Chiranjilal Poddar, who is the landlord of a building in Muzaffarpur seeks a writ, in the nature of certiorari, under Article 226 of the Constitution to call us and to quash the order of the Commissioner, Tirhut Division, dated the 28th November, 1955, refusing the petitioners application for eviction of the opposite party tenants, under sec. 11(1) (a) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947).
2. Opposite party Nos. 1 to 3, who are the tenants, have shown cause against the rule, issued by the High Court on the application of the petitioner, under Articles 226 and ,227 of the Constitution, and have also filed a counter-affidavit in reply to the affidavit of the petitioner.
3. The opposite party were month to month tenants of the holding belonging to the petitioner on a monthly rental of Rs. 33/-. The opposite party did not pay rent for the period from Asarh, Sambat 2010 up to Sarawan, Sambat 2011, for a period of 14 months, corresponding to the 28th June, 1953, to the 14th August, 1954. The Petitioner therefore, on the 18th August, 1954, applied under section 11(1) (a) the Act before the Controller, Muzaffarpur for eviction of the opposite party, on the ground, inter alia of non-payment of rent. The Controller by an order dated the 24th January, 1955, ordered eviction of the tenants-opposite party on the ground that they had defaulted in payment of rent. An appeal, against the above order by the opposite party to the Collector, was dismissed on the 8th August, 1955, as he agreed that non-payment of rent had been established and, therefore, eviction must follow as a matter of course. A revision was taken to the Commissioner by the tenants, opposite party, and the learned Commissioner by his order dated the 28th August, 1955, set aside the order of the Collector ordering eviction, and disallowed the application of the petitioner for eviction of the opposite party. The Petitioner has moved this court and asked for an appropriate writ against this order of the learned Commissioner.
4. The only ground on which the order of the learned Commissioner has been attacked by Mr. Nandlal Untwalia, appearing for the petitioner, is that the opposite party, having admitted that they were month to month tenants, and, that they had not paid the rent for the period 28th of June 1953, to the 14th August, 1954, were liable to be evicted under sec. 11(1) (a) of the Act, and therefore, it was incumbent on the Commissioner to uphold the order of eviction passed by the first two courts; and by disallowing the petitioners application for eviction, he has thereby refused to exercise jurisdiction vested in him by law, and, as such there is a manifest error of law on the face of the proceedings, and, a writ must go to quash the order of the Commissioner.
5. In order to determine if the Commissioner has committed an error of law, which is apparent on the face of his order, it is necessary to know the case of the parties before the Controller.
6. The Petitioners case was that at times the opposite party tenants paid rent for four or five months on one date, but, the petitioner every time granted separate receipts for each month with a view to lay stress on the foot note of the receipt forms on which he used to grant receipts. One such receipt is annexure A to the affidavit. In the foot-note, it is mentioned that if the rent of the house was not paid for more than two months, in that event the landlord will have the right to get the house vacated and the tenants will have no objection to the same.
7. The case of the opposite party however, was that the landlord had been in the habit of taking rent for several months together, and as such there was an "implied agreement or arrangement that the petitioner would accept the rent if, and when, paid by the opposite party, even after expiry of each month. It was, therefore, contended that in view of the
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