HIRENDRA NATH BOSE Vs. SHYAMSUNDAR MISSER

JUDGEMENT

(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. 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 Section 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 :

(3.) But the difficulty in this case is, that there is no proper finding by the lower Appellate Court that the landlord is not bound to make the repairs within the meaning of Section 9 of the statute. The trial Court came to a different finding on this point and stated that, even though the contract of letting out (exhibit D) was not registered, there was a duty imposed upon the landlord to carry out the necessary repairs because it is the admitted case that "there has been a holding over under Section 116 of the Transfer of Property Act." We consider therefore that this case should go back on remand to the lower appellate Court for consideration of the question whether the landlord was bound to make repairs to the building either under the lease between the parties or under any other general provision of law. If the lower appellate court finds that the landlord was Under no obligation to make the repairs within the meaning of Section 9, then it must follow as a corollary that the order of the House Controller is not made with jurisdiction. If, on the other hand, the lower appellate court finds that the landlord was bound to make repairs to the building within the language of Section 9 of the statute then it is equally clear that the order of the House Controller must be held to be with jurisdiction.