HIRA LAL SAO Vs. RAMREKHA SAO

JUDGEMENT

(1.) The petitioner is the tenant of a gola, and the opposite party Ramrekha Sao is said to be the landlord of that gola. The petitioner has moved this Court for the quashing of the proceedings against him for an alleged contravention of an order passed by the Controller under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act (III [3] of 1947). The opposite party moved the Sub divisional Magistrate of Dinapore on 5th December 1947, for the eviction of the petitioner from the gola, and the Sub-divisional Magistrate issued a notice to the petitioner under the provisions of the aforesaid Act It was argued before the Sub-divisional Magistrate that no rent was due from the petitioner to the landlord; on the contrary, if the accounts were examined, then after adjustment of the amount due under the rent payable by the petitioner, there would be a sum due also from the landlord on account of the amount spent by the petitioner in the repairs of the gola. The Sub-divisional Magistrate spent the matter to another Magistrate, Mr. Tripathy, for enquiry and report as to this. In the report which Mr. Tripathy submitted on 3rd August 1943, it is said that; the landlord did not dispute the amount spent on repairs, but challenged the right of the tenant to make the repairs. On 24th August 1948, the Sub-divisional Magistrate after hearing the parties and considering the report of Mr. Tripathy held that the expenditure made by the petitioner was unauthorised. He directed the petitioner to put the landlord Ramrekha Sao in possession of the gola by 25th November 1948. Against this order, the petitioner appealed to the Commissioner of the Division under Section 18 of the Act, and the Commissioner affirmed the decision of the Sub-divisional Magistrate by his order dated 17th January 1949. The landlord, Ramrekha Sao, moved a petition before the Sub divisional Magistrate praying that the petitioner should be proceeded against for contravention of his order dated 24th August 1948. On 16th February 1949, the Sub divisional Magistrate ordered that summons should issue against the petitioner for an offence punishable under Section 20 of the Act. On 11th March 1949, the petitioner filed a suit before the Munsif at Patna for a declaration that the order of the Sub-divisional Magistrate dated 24th August 1948, was without jurisdiction and not binding upon him and praying for a permanent injunction against the opposite party restraining him from carrying into effect the order of the Sub-divisional Magistrate dated 24th August 1948, and evicting the petitioner. There was also a prayer for ad interim injunction. On 2lst March 1949, the Munsif issued notice on the opposite party to show cause why this prayer should not be allowed, fixing 2nd April 1949 for hearing. The Sub-divisional Magistrate, however, on 21st March 1949, issued summons against the petitioner for an offence punishable under Section 20 (2) of the Act. On 5th April 1949, the petitioner appeared before the Sub-divisional Magistrate in answer to the summons, but the case was adjourned to 29th April 1949. On 23rd April 1949, the Munsif passed an ad interim injunction restraining the opposite party from evicting the petitioner. On 29th April 1949, the petitioner moved the Sub-divisional Magistrate and produced before him a certified copy of the Munsif's order. No action, however, was taken by the Sub-divisional Magistrate on this date. On 6th May 1949, the Sub-divisional Magistrate was of the opinion that as the proceedings before him had not been stayed by a civil Court, the case against the petitioner should continue. The Munsif actually thereafter decreed the suit of the petitioner, and I am informed by the learned advocate for the opposite party Ramrekha Sao that an appeal is pending before the District Judge against that decision. It is in these circumstances that the petitioner prays that the present proceedings against him may be quashed.

(2.) Mr. Ghoshal for the opposite party Ramrekha Sao strongly contended that in the eye of the law an offence had been committed by the petitioner and there was no ground for the quashing of the proceedings. The utmost that could possibly be done in the circumstances of the present case was to stay the proceedings until the disposal of the appeal against the Munsif's decision, which was pending before the District Judge. I must say in fairness to Mr. Ghoshal that this latter submission of his was made with the greatest reluctance.

(3.) I am inclined to take the view that in the present circumstances the summons which was issued upon the petitioner was premature, and the proceedings should be quashed, subject of course to the right of the opposite party Ramrekha Sao to take such steps as he thinks he is entitled to in law when the appeal before the District Judge is disposed of and the proceedings before the civil Court are finally concluded. As I read Section 11 of the Act, Sub-section (1) is a general protective clause by which a tenant is protected from eviction except in certain circumstances. Sub-section (2) permits a landlord to evict his tenant in the circumstances stated in Sub-section (1), if he applies to the Controller for a direction in that behalf. The Controller may, after hearing the parties and if satisfied that the tenant is liable to be evicted under the provisions of Sub-section (1), make an order directing the tenant to put the landlord in possession of the holding. Sub-section (3) permits a landlord to apply to the Controller for an order directing' the tenant to put the landlord in possession of the building, if he requires it reasonably and in good faith for his own occupation or for the occupation of any person for whose benefit the building is held by him, and Clause (b) of this subsection authorises the Controller, if satisfied that the claim of the landlord is bona fide, to direct the tenant to put the landlord in possession of the building on such date as may be specified by him in his order. It will thus be seen that the provisions of Sub-section (3) of Section 11 refer to circumstances quite distinct from those mentioned in Sub-sections (1) and (2) of the section. Sub-section (4) of Section 11 will, in my opinion, have some relevancy for consideration in the present case. It provides that