MRS DHARAMSHILA LALL Vs. BIBI AMNA

JUDGEMENT

(1.) This second appeal, which is by the defendant, arises out of a suit in ejectment which has been decreed by both the Courts below. The defendant in the suit took a lease of a house situated in Exhibition Road, Patna, for a period of one year, commencing on 1-2-1948, and terminating on 31-1-1944. The Bihar House Rent Control Order, 1942 was extended to the area in which this house is situated by a notification issued on 24-4-1942. The plaintiff subsequently made an application to the Controller, and the Controller fixed the fair rent of the house at us. 90 a month. When, however, the house was let out to the defendant, the plaintiff agreed to accept a rent of Rs. 80 a month. The defendant did not, as she could have done, apply under Section 12 of the House Rent Control Order to have the period of her tenancy extended, the reason, I have no doubt myself, being that, rightly or wrongly, she was under the impression that the plaintiff had agreed, or would be prepared to agree, to her continuing in occupation as a tenant from month to month. The suit it is not without significance, was not instituted until near the end of 1944. The defendant, in her written statement pleaded that by reason of the provisions contained in Section 13 of the Order she was entitled to continue in possession and was not liable to be ejected. It is conceded that the defendant was ready and willing to pay the fair rent fixed by the Controller. She has, it appears, deposited, as it fell due, the rent which she contracted to pay under her lease and would have deposited also the difference between that rent and the fair rent if she had been permitted to do so. Mr. Sarjoo Prasad, for the respondent, suggested that the defendant had not performed the conditions of the tenancy as one of the Conditions of her lease was that she should yieldup possession of the premises on 31-1-1944. The expression "conditions ofthe tenancy," as it occurs in Section 13 of the Order, must, however, be construed as not including as condition, to yield up the premises demised on; the expiration of the term or on the service of as valid notice to quit. Unless the words are to be; construed in this way, it is obvious that the; provision would be rendered nugatory. The! same words occur in similar enactments in England and have been so construed there; see for instance, the observations of Astbury J. in Artizans, Labourers and General Dwellings Co. Ltd V/s. Whitaker (1919) 2 K.B. 301. The main contention put forward by Mr. Sarjoo Prasad, for the respondent, was, however, that Section 13 did not apply to decrees passed or orders made by civil Courts but to orders made by the Controller under the House Rent Control Order itself. On principle however, there is no reason to read into Section 13; such words as "by the Controller" which do not occur there. Moreover, it cannot, I think, be properly said that there is any provision in the House Rent Control Order which enables I the Controller to make an order for recovery of possession.

(2.) Under the proviso to Section 4(3) the Controller may no doubt, "direct the tenant to vacate the house" and under Section 12(2) he may "pass an order disallowing the extension demanded by the tenant." Again, under Section 4(2) and also under Section 12(8) the Controller is authorised, in certain circumstances, to direct a landlord, who has succeeded in obtaining possession, to vacate the premises and restore the tenant to possession. Possibly, orders and directions of this kind were, in practice, ordinarily obeyed t under the impression that disobedience to them amounted to an offence under the Defence of India Rules. Clearly, however, if they were not obeyed", the Controller could not enforce obedience to them by legal process. In the last resort, the person in whose favour the order was made had no alternative but to go to the civil Court and assert a statutory right to possession and obtain a decree, in execution of which he could ask for a writ for delivery of possession. This patent defect or lacuna in the House Rent Control Order was, apparently, recognised when that Order was replaced by the Bihar Buildings (Lease, Rent and Eviction Control) Ordinance, 1946, as Section 16 of the Ordinance provided that Orders made by the Controller should have the effect of a decree and should be executed as such by the civil Courts. The object of the Legislature in enacting the House Rent Control Order was, as I understand it, the same as the object which the Legislature in England had in enacting the various Rent Restrictions Acts which were passed in the second and third decades of this century, namely, to prevent tenants from being compelled to pay an excessive rent by threats of being evicted, in order to achieve this object, the Legislature, in effect, restricted by statute the rights which landlords had to eject their tenants and obtain possession of their premises in order to let them out to persons who were prepared to pay a rent which the existing tenants would not agree to pay and which was an excessive rent. It is obvious that the only way in which the tenant could, in the last resort, be protected against ejectment was by refusing the landlord the legal process to which he would, in the ordinary course of law, have been entitled. That this was intended to be done and was, in fact, done, is, I think, clear when the House Rent Control Order, was originally enacted, is examined. Section 4 of the Order did not then contain either Sub-section (2) or Sub-section (3) or the proviso to Sub-section (3). The functions of the Controller were thus confined to determining a fair rent and to deciding whether an application by a tenant whose term was about to expire for an extension of the term should be allowed or disallowed. The jurisdiction of the civil Courts to entertain suits in ejectment was in no way restricted. It was open to a landlord to institute a suit in ejectment on the ground that the term of the lease had expired or the tenancy had been determined by notice. In certain suits in ejectment the tenant was, however, enabled to set up a defence which, under the law as it stood prior to the enactment of the House Rent Control Order, was not open to him, namely, that by reason of the provisions contained in either Section 4(1) or Section 13 he was a statutory tenant or had a statutory right to continue in possession. Whether that defence was or was not a valid one was, of course, for the civil Court to determine. The position was not, I think, radically altered by reason of the successive amendments made in Section 4 by the notifications issued on 11.6-1942, and 23-6-1948. The result of these manly was that, if the Controller, on an application made to him by the landlord, decided that the landlord required the premises for his own use, the civil Court was debarred from entertaining a plea that the defendant was a statutory tenant, and, if the landlord, under the terms of the lease, was entitled to a decree, the civil Court was bound to decree the suit. When the House Rent Control Order came into operation, there must have been many landlords who bad already obtained decrees in ejectment but had not yet succeeded in ejecting their tenants. I think myself that Section 13 was advisedly drawn in such a. way as to enable a tenant to resist an application by the landlord for a writ for delivery of possession. Mandhar Lall J. in Surajnarain V/s. Jamil Ahmad A.I.R. 1946 Pat. 385 be expressed a contrary opinion on the ground that a Court executing a decree cannot go behind the decree. But in such a case, the Court was not asked to set the decree aside or modify it; it was asked to say that, in spite of there being in existence a valid decree, the tenant had, nevertheless, a statutory right to continue in possession, and, therefore, to resist an application by the landlord for the issue of a writ for delivery of possession. The decision in Surajnarain V/s. Jamil Ahmad A.I.R. 1946 Pat. 385 was strongly relied on by the learned advocate for the respondents and also by the trial Court, but it is not, in my opinion, directly in point. At the most, it is an authority for the proposition that, when a decree in ejectment has been passed, the judgment- debtor cannot set up a statutory right to continue in possession. It is no authority for the proposition that a defendant cannot successfully set up that plea in an ejectment suit. In fact, Das J. in his concurring judgment expressed the opinion that he could.

(3.) Finally, it was contended. by Mr. Sarjoo Prasad for the respondent, that, as the House Rent Control Order has expired and as there was no provision corresponding to Section 13 in the Bihar Buildings (Lease, Rent and Eviction Control) Ordinance, 1946, which replaced it, the suit should be decreed now, even if it should not have been decreed by the trial Court. This argument assumes that the defendant is still a tenant for a period of one year, which period has expired. This, however, is not so. When the term of her lease expired, she became a statutory tenant in the sense that she was entitled to-retain possession by reason of the provisions contained in Section 13 of the Order. Now, the word "tenant" has been defined in Clause (h) of Section 2 of the Ordinance as meaning "any person by whom, or on whose account, rent is payable for a building and includes a person continuing in possession after the termination of the tenancy in his favour". The Ordinance in its turn has expire but Bibar Act 8 of 1947, which has replaced it, contains the same definition of the word "tenant". The defendant thug still has a statutory right to continue in possession. The ground on which the plaintiff seeks to recover possession is, apparently, that she requires the premises in good faith for her own use or for the use of her dependents. Whether her claim [is or is. not a bona fide one is a matter which, under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, it is still for the Controller and not for the civil Court to determine. The plaintiff was, I think, ill advised to institute this suit. In my opinion, the appeal must be allowed and the suit must be dismissed with costs throughout. Bennett, J.