GAURISHANKAR AGARWALA Vs. GANGA PRASAD

JUDGEMENT

(1.) This is an appeal by the landlord for ejectment of the defendant from a house. The questions which are sought to be raised as to the applicability of the Bihar House Rent Control Order, 1942, have been decided adversely to the appellant. My attention has been drawn to the Division Bench decision of this Court in Dharamshila Lall V/s. Bibi Amma A.I.R. 1948 Pat. 269 which suggests the view taken by the Court below.

(2.) It was then argued by Mr. Rajkishore Pd. that bis right to go to the Controller to satisfy him that the plaintiff requires the house in good faith for his own use or for the use of his dependents should be preserved, and he has drawn my attention to the observations of Shearer J. at page 6 of the judgment. I think his contention is correct, and it will be made clear that if the plaintiff requires the house reasonably and in good faith for his own occupation pr for the occupation of any person for whose benefit the building is held by him within the meaning of Section 11. Bihar Buillings(Lease, Rent and Eviction) Control Act, 1947, he can apply to the Controller for an order directing the tenant to put the landlord in possession of the building. It is obvious that this application will only be entertained upon the proof of facts showing that on the date of the application the landlord requires the house for his own occupation, etc.

(3.) Mr. Rajkishore Pd. also argued that in this case as the defendant did not deposit the rent right up to date of the decision of the trial Court, the plaintiff was entitled to have a decree for ejectment, and relied upon A.I.R 1946 Cal. 81 Keshab Mttter V/s. Mrs. P. Ghose. But this was a case under the Calcutta House Rent Control Order 1943, and the question to be considered related to the terms of clause 9 of that Order. In the present case, the terms of Clause 13 are wider and protect the defendant from ejectment so long as he is willing to pay rent. In the present case, the defendant sent rent for February 1944 to February 1945 by money order, but it was refused by the landlord. I do not think that the intention of the law can be that the defendant should be forced to make useless offer or send money to the landlord by money order which would(without doubt be refused. See the case of Hunterv Daniel (1845) 4 Hare's Rep. 420 the following passage of which was quoted with approval in the case of Chalikani Venkatarayanim Garu V/s. Shree Rajah Vatsavaya Venkata Subadrayamma Jagatpati A.I.R. 1923 P.C. 26. The practice of the Courts is not to require a party to make a formal tender where from the facts stated in the Bill or from he evidence it appears the tender would have been a mere form and that the party to whom it was made would have refused to accept the money. To the same effect is the observation of Sir Montague Smith in Alexander John Forbes V/s. Luchmeeput Singh 14 M.I.A. 330, at the bottom of page 343 Moreover, there is a finding of the appellate Court that the defendant is willing to pay rent.