BHAGWAN DAS Vs. SM DULARI JAISWAL

JUDGEMENT

(1.) In this case the petitioner, Bhagwan Das, has moved the High Court for issue of a writ in the nature of certiorari for calling up and quashing the order of the Commissioner of Chotanagpur Division dated 9-9-1953 affirming an order of the Deputy Commissioner of Singh bhum dated 6-8-1952, directing the petitioner to vacate certain premises under the provisions of Section 11, Bihar Buildings (Lease, Rent and Eviction) Control Act (3 of 1947). In the alternative, the petitioner has prayed that the High Court may interfere with the order of eviction passed by the two tribunals under Article 227 of the Constitution.

(2.) The petitioner is a tenant in respect of a house in Mouza Dhatkidih of which opposite party No. 1 is the landlord. On 5-12-1950, the landlord filed an application before the House Controller for eviction of the tenant on the ground of personal necessity. The application was dismissed by the House Controller, and an appeal was taken to the Deputy Commissioner on behalf of the landlord. The appeal was allowed by the Deputy Commissioner on 23-1-1952. But in revision the Commissioner of Chotanagpur Division held that the application of the landlord should be dismissed. On 16-5-1952, the tenant deposited in Court the rent due for the house from 12-12-1950 to 12-5-1952. The Controller issued notice to the landlord to withdraw the deposit of rent. On 20-5-1952, the landlord filed an application before the House Controller for evicting the petitioner on the ground of non-payment of rent for the period from November, 1950 till May, 1952. The Controller dismissed the application on the ground that although the petitioner was liable to pay rent every month the petition for eviction should be rejected on the ground that on the date the application was uled there was actually no arrear of rent as the petitioner had deposited all the amount due. Against this order, an appeal was preferred by the landlord. The Deputy Commissioner of Singhbhum allowed the appeal holding that there was a default for over a long period and no payment was offered and the petitioner was, therefore, liable to be evicted. The Deputy Commissioner took the view that the petitioner was liable to be evicted since he was a month to month tenant and there was default in payment of rent on the dates the monthly rent became due. It was held by the Deputy Commissioner that even though there was, in fact, a deposit of the entire amount of rent before the date of the application, there was in the eye of law a non-payment of rent on the part of the petitioner and so the petitioner was liable to be evicted under the provisions of Section 11 of the statute. Against the order of the Deputy Commissioner, the tenant made an application in revision before the Commissioner of Chotanagpur Division. The Commissioner affirmed the order of the Deputy Commissioner holding, that the petitioner was a month to month tenant and "there has certainly been non-payment of rent in this case in which the landlord is entitled to be put in possession." In these circumstances, the petitioner has moved this Court for issuing a writ in the nature of certiorari or, in the alternative, for interfering with the order of the Deputy Commissioner and the Commissioner under the provisions of Article 227 of the Constitution.

(3.) In support of this application, Mr. B. C. Ghosh put forward the argument that in coming to a finding that there was non-payment of rent the two tribunals, namely, the Deputy Commissioner of Singhbhum and the Commissioner of Chotanagpur Division, have committed an error of law. It was pointed out by learned counsel that in this case the petitioner had deposited in the office of the House Controller the entire rent which was due for the period from November, 1950 to May, 1952. Counsel laid stress upon the circumstance that this fact has been accepted as correct by both the tribunals. The argument was that the Deputy Commissioner and the Commissioner of Chotanagpur were not justified in holding that there was non-payment of rent on the petitioner's part within the meaning of Section 11, Bihar Buildings (Lease, Rent and Eviction) Control Act (3 of 1947). Counsel also made submission that the eviction of the petitioner in spite of the fact that he had made deposit of the arrear rent was contrary to natural justice. But, in our opinion, the argument of learned Counsel cannot be accepted as correct. The reason is that this case falls directly within the principle enunciated by the Supreme Court in --'Brij Raj Krishna v. S.K. Shaw and Bros.', AIR 1951 SC 115 (A). The respondents in that case had been in occupation as monthly tenants of several blocks of buildings belonging to the appellants. It appears that the rent for the months of March, April, and May 1947 had fallen into arrears and the respondents had remitted the amount to the appellants by means of two cheques. The appellants refused to accept these cheques whereupon the respondents remitted the amount subsequently by postal money order. On 12-8-1947, the appellants filed an application with the Controller maintaining that there was non-payment of rent and praying that the respondents should be evicted from the premises of which they had taken lease. On 30-8-1947, the respondents, whose money order had been in the meantime returned by the appellants, deposited the rent up to the month of June in the office of the House Controller. Notwithstanding this deposit the House Controller passed an order on 10-5-1948, directing eviction of the respondents. The order of the House Controller was upheld by the Commissioner on appeal and thereafter the respondents filed a suit in the Civil Court for declaration that the order of the House Controller was illegal and without jurisdiction. The suit was dismissed by the Munsif, but in second appeal the High Court decreed the suit holding that the order of the House Controller was without jurisdiction. The judgment of the High Court was based upon the ground that the expression "non-payment of rent" in Section 11 must not be given an interpretation which would have the effect of enlarging the protection against forfeiture of tenancy enjoyed by a tenant under Section 111, Transfer of Property Act. It was held by the High Court that the intention of the Legislature was that a tenant should not be liable to be evicted if he brought into Court all the rent due from him before the order of eviction came to be passed. The following passage from the judgment of the High Court is important: