The jurisdiction of the Controller to make an order under Section 9 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, depends upon the preliminary condition that the landlord had failed to make the repairs which he was bound to make to the building.

1. In the suit, which is the subject-matter of these appeals, the plaintiff prayed for a declaration that the order of the House Controller in case No. 79 of 1948 was ultra vires and without jurisdiction and also for an injunction restraining the defendant from making repairs ia pursuance of the aforesaid order. The plaintiff alleged that he was the owner of a house standing on the 29 Church Road, Bhagalpur. The property belonged to the estate of M.B. Morrison and was under the receivership of Loknath Dhandhania who let put the house to the defendant, Shyamsundar Misser, who happens to be the Headmaster, Secretary and proprietor of the Shyamsundar Institution, which is a local High English School, At the instance of the defendant, the Controller made an order under section 9 of Bihar Act III of 1947 holding that the landlord was intentionally neglecting repairs to the building and so permitting the defendant-tenant to carry on the necessary and urgent repairs to the building. But there was a direction of the Controller that "the cost should not exceed the limits prescribed by law." The order of the Controller is dated the 23rd of December. 1949. Both the lower courts have not accepted the case of the plaintiff and dismissed the suit on the ground that the order of the House Controller made under section 9 of Bihar Act III of 1947 was final and the Civil Court had no jurisdiction to test the legality of that order or to say that the order of the House Controller was made without jurisdiction. In reaching this conclusion the lower courts have relied upon the decision of the Supreme Court in Brij Raj Krishna V/s. Messrs S.K. Shaw and Brothers, AIR 1951 SC 115 (A), where it was stated by Fazl Ali J., that the Act had entrusted the Controller with a jurisdiction which includes the jurisdiction to determine whether there was non-payment of rent or not, as well as the jurisdiction, on finding that there was non-payment of rent, to order eviction of a tenant.

It was further stated in that case that even if the Controller wrongly decided the question of non-payment of rent and ordered eviction of the tenant, his order could not be questioned in a Civil Court.

2. On behalf of the appellants in these two appeals, Mr. Mazumdar put forward the contention that the lower courts have misdirected themselves in law in holding that the principle of the decision, of the Supreme Court in AIR 1951 SC 115 (A), applied to this case. It was argued by the learned Counsel that the Controller had no jurisdiction to make an order under section 8 of the statute unless the preliminary condition Imposed by the section was satisfied. The preliminary condition was that the landlord failed to make the repairs which he was bound to make to the building within a reasonable time after notice was given by the tenant.

In our opinion, the contention of the learned counsel is well founded and the lower courts have misdirected themselves in law in applying the principle laid down by the Supreme Court in AIR 1951 SC 115 (A), with regard to the scope and construction of Sec.11 of the same statute. It is true that in that case the Supreme Court has laid down that the decision of the Controller in the question of non-payment of rent was final and it was not open to review in a Civil Court and was not a judiciable issue. But that does not mean that under the provision of Section 8 of Bihar Act III of 1947 the order of the Controller is not open to review in a civil court on the ground of lack of jurisdiction. Section 9 of the statute is in the following terms : "9. If a landlord fails to make the repairs, which he is bound to make to the building within a reasonable time after notice is given by the tenant, it shall be competent for the Controller to direct, on application by the tenant, that such repairs may be made by the tenant and that the cost thereof may be deducted from the rent which is. payable by him."

In our opinion, the jurisdiction of the Controller to