KISHORI LAL POTDAR Vs. DEBI PRASAD KEJRIWAL

JUDGEMENT

(1.) This appeal is by the plaintiff, and arises out of a suit to eject the defendants, who are members of a joint Hindu family, from a house belonging to the plaintiff. The shop was let to the defendants at a monthly rental of Rs. 415 by a registered lease dated 19th December 1939. The lease was for a period of three years beginning from the date on which the lessees should take possession of the premises. There was, however, a provision that the defendants should be entitled to three months' notice if they should be required to quit. The lessees' occupation of the premises began on 23rd November 1940. On 9th November 1943, plaintiff served on them a notice stating, "I give you 3 months' notice to quit the premises," calling upon them, "kindly to vacate the same on the receipt of this notice." The lessees not having complied with the notice the plaintiff applied to the House-rent Control Officer to eject them, and an order for eviction was made on 17th January 1945 and was later confirmed by the Commissioner on appeal, who, however, gave the lessees three months' time to vacate the premises. The lessees, however, remained in occupation of the premises and instituted title suit No. 52 of 1945, in the Court of the Munsif of Bhagalpur for a decision that the eviction order was ultra vires the House-rent Control Officer on the ground that the House-rent Control Order applied only to monthly tenancies. This contention was accepted by the Munsif, and the suit was decreed on the ground that the lessees were not monthly tenants. An appeal preferred by the lessor was dismissed. The latter then served on the lessees a notice dated 14th December 1946, calling upon them "to vacate the said holding at once." A further notice calling upon them "to quit the house at once" was served on 14th December 1946. These notices not having been complied with, the lessor instituted the suit out of which this appeal has arisen praying for a decision that the defendants are trespassers and for a decree directing them to deliver the premises to the plaintiff. the suit was dismissed by the Additional District Judge of Bhagalpur. An appeal by the plaintiff came before Sinha and Mababir Prasad JJ. who made the following order :

(2.) Before considering these questions I propose to refer to the rule under which the reference has been made. It is Rule 3 of chap. 5 of the Rules of this Court. That rule is as follows:

(3.) The House-rent Control Order of 1942, which was issued in exercise of powers conferred by Rule 81, Defence of India Rules, was replaced on 1st October 1946, by the Bihar Buildings (Lease, Rent and Eviction Control) Ordinance (II of 1946), which was made in exercise of powers conferred by Section 88 (1), Government of India Act, 1935. This was replaced on 15th March 1947, by the Bibar Buildings (Lease, Rent and Eviction) Control Act (III of 1947). The Act is in pari materia with the Ordinance. Section 11 (1) of the Act provides that :