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HIGH COURT OF PATNA
S.J.Mukhopadhaya, J.
Md. Khaliquz Zaman - Petitioner
vs.
Shri H.C.Joshi - Opposite Party
Civil Revision No. 340 of 1994
Decided On : 3.4.1995
EXECUTION OF ORDER - CONTROLLER UNDER SECTION 5 OF BIHAR BUILDINGS (LEASE, RENT AND EVICTION) CONTROL ACT, 1982 - SECTIONS 2(D), 5, 16, 23, 24(3), 26 - ORDER PASSED BY CONTROLLER UNDER SECTION 5 OF THE ACT IS EXECUTABLE AS A DECREE UNDER SECTION 23 OF THE ACT - ORDER OF CONTROLLER FIXING RENT IS NOT A MERE DECLARATORY ORDER - ORDER OF CONTROLLER IS NOT LIABLE TO BE QUESTIONED IN ANY COURT EXCEPT BY WAY OF APPEAL OR REVISION AS MADE UNDER SECTIONS 24 AND 26 OF THE ACT.
Fact of the Case:
Petitioner-decree holder filed an execution case under Order 21, Rule 10 of CPC read with Section 23 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (BBC Act) to execute the order of the Controller fixing the rent of the house occupied by the judgment debtor-opposite party. The Munsif dismissed the execution case on the ground that there cannot be any execution with respect to an order passed under Section 5 of the BBC Act. The petitioner challenged the order of the Munsif in the High Court.
Finding of the Court:
The High Court held that the order passed by the Controller under Section 5 of the BBC Act is executable as a decree under Section 23 of the Act. The order of the Controller fixing the rent is not a mere declaratory order. The order of the Controller is not liable to be questioned in any court except by way of appeal or revision as made under Sections 24 and 26 of the Act.
Issues: Whether the order passed by the Controller under Section 5 of the BBC Act is executable as a decree under Section 23 of the Act?
Ratio Decidendi: The High Court relied on the following provisions of the BBC Act: * Section 2(d) defines "court" as the court having jurisdiction to entertain a suit by a landlord against a tenant for recovery or possession of a building in respect of which a suit or application is filed under the Act. * Section 23 provides that every order of the Controller passed under the Act, where no appeal against such order has been preferred under Section 24, every order of the appellate authority on appeal under Section 24 and every order of the Commissioner passed in revision under Section 26 shall be executed by the court as if such order were a decree passed by such court. * Section 24(3) stipulates that an order of the Controller, which becomes final, is not liable to be questioned in any court whether a suit or other proceeding except by way of appeal or revision as made under Sections 24 and 26 of the Act.
Final Decision: The High Court allowed the civil revision application and set aside the order of the Munsif dismissing the execution case. The court directed the Munsif to expedite the execution case immediately.
S.J.Mukhopadhaya, J.- The petitioner decree holder has challenged the impugned ORDER :dated 4th February, 1994 passed in Execution Case no. 7 of 1993, by Shri J.N.Jha, Munsif, Danapur.
2. By the impugned ORDER :, the learned Munsif has dismissed the execution case aforesaid on the ground that there cannot be any execution with respect to an ORDER :passed under Section 5 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the B.B.C. Act) and thereby the execution case is not maintainable.
3. Sri H.C.Joshi, JUDGMENT : debtor-opposite party is tenant of decree holder petitioner since the period of father of the petitioner. According to the petitioner, the JUDGMENT : debtor-opposite party was inducted as a tenant long back by his father for a meagre amount of rent, which was gradually enhanced time to time with mutual consent. Last rent was Rs. 100/per month, which the opposite party was paying since long. In the year 1990, because of devaluation of money, the petitioner has asked for enhancement of rent, on which the Opposite party refused. In such circumstances, he was forced to file a case under section 5 of the B.B.C. Act.
4. The Controller after due notice and on hearing the parties has fixed a rent @ Rs. 1791/- per month giving the same effective from 26th of July, 1990 i.e. the date of filing of the case. The finding of the Controller is Annexure-1. The JUDGMENT : debtor-opposite party filed B.B.C. Appeal on 6th February, 1991 before the Collector, Patna bearing B.B.C. Appeal No. 94 of 1991. Inspite of mandatory ORDER :for depositing arrears of rent and the month to month rent, at the rate fixed by the Controller, as provided under section 16 of the B.B.C. Act, the opposite party did not choose to deposit the same. Such ORDER :was passed by the learned Collector on 16th August, 1991. Thereafter the opposite party filed revision on 30th August,' 1991 before the Commissioner, Patna Division, bearing B.B.C. Revision Case No. 92 of 1991. The same was also dismissed on 7th April, 1992 for non-compliance of mandatory provisions of Section 16 of the B.B.C. Act. The B.B.C. appeal was also dismissed by the Collector, Patna on 22nd of March. 1993.
In the meantime, after decision of the Controller dated 22nd of January, 1991 (Annexure-1) and filing of the appeal by the opposite party before the Collector, the opposite party filed one Title Suit No. 63 of 1991. Curiously, in the said Title Suit, he denied the relationship of landlord and tenant and prayed for injunction to restrain the recovery of amount of rent fixed by the Controller. The same is pending.
5. On the part of the decree holder petitioner, he having not received the month to month rent, particularly on the basis of the rent fixed by the Controller, moved in the court of the learned Munsif, Danapur under the provisions of ORDER :21, rule 10 of C.P.C. read with section 23 of the B.B.C. Act, by filing one Execution Case NO.7 of 1993. As stated above, the same has been rejected by the impugned ORDER :dated 4th February, 1993, on the ground that the execution case is not maintainable with respect to an ORDER :passed under section 5 of the B.B.C. Act.
6. Counsel for the petitioner submitted that under section 23 of the B.B.C. Act, the court of Munsif was duty-bound to execute the ORDER :of the Controller, treating the ORDER :passed under section 5 of the B.B.C. Act, as a decree passed by such court. He argued that the execution case was maintainable and the court below has illegally passed the impugned ORDER :.
7. Counsel for the JUDGMENT : debtor opposite party submitted that the impugned ORDER :has been rightly passed by the learned Munsif, Danapur. According to him, the ORDER :passed by the Controller under section 5 of the B.B.C. Act is merely a declaratory ORDER :, declaring therein the rent of the house to be paid by the tenant. It was thereby argued that there was nothing to be executed by the court below, as there being
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