Ramananitan Prasal v. S. K. SHAW AND BROTHERS

fell due. month of March became due in April and the rent for April became due in May, but no step was taken by the arrears until the 28th to pay inception of the It appears that at the June, 1947. tenancy, the respondents had paid one month's rent advance, and it had been agreed between them and the appellants that the advance rent would be adjusted whenever there was default in payment of rent for full It was however p_ointed out that the one month. advance payment could be adjusted only the rent for month's rent, but, in the present case, three months had become due, and since in a monthly tenancy the rent is payable for month rent for each month becoming due in the subsequent month, non-payment of that rent at the proper time was sufficient to attract the provisions of section 11 (1) (a) of the Act. The appellants also raised a second contention, namely, that having regard to the scheme fully competent of the Act, the House Controller was to deciae whether the condition precedent to eviction had been satisfied, and once that decision had been arrived at, it could not be questioned in . a civil court. This contention was accepted by the first two courts, and the first appellate court dealing with it observed as follows :- to month, If the question of "But the Buildings Countrol Act has authorised the Controller to decide whether or not is non payment of rent and it is only when he is satisfied that there has been non-payment of rent that he assumes jurisdiction. jurisdiction depends upon the decision of some fact or point of law, and if the court is called upon to decide such question, such decision cannot be collaterally impeached ( vide 12 In my opinion when the Controller assu Patna 117). jurisdiction on being satisfied that there was med the rent and proceeded to pass an order non-payment of the Civil Court can have no I of eviction. the validity of such order." to challenge jurisdiction The High Court did not however accepted this view the T ra:nsfer of and after refering to section 111 of !95! RaiBrij Raj Krishna and Another v. S. K. Shaw and Brothers. Fa:r.1 Ali]. S.C.R. SUPREME COURT REPORTS 149 Property Act, proceeded to propound these words :- its own view in stated tenants' from buildings, the preamble as being the expression 'non-payment of "Regard being had to the circumstances in which the Act under consideration was enacted and its object, 'to prevent unreasonable eviction of would seem in section 11 in the context in which is used must be given an interpretation which would have the effect of enlarging the protection against determination of a tenancy enjoyed by a tenant under the ordinary law. tenant The Legislature, therefore, by enacting that a shall not be liable for non payment of rent' should be held to have intended to protect a tenant from being evicted from a building in his possession for being a defaulter in payment of rent, if he brings into Court all from him before the order of his eviction comes to be passed ..... . to be evicted the rent due 'except empowering (3) of section 18 were If, as contended for on behalf of respondents, section 11 of the Act were to be construed as entitling a landlord to apply for eviction of a tenant on the rent amounting to ground of irregular payment of 'non-payment' of rent and as the Con irregular payment troller to determine as to whether rent within the of rent amounts to non-payment of meaning of sub-section (1) of section 11, and to be construed as section making the decision of the Controller on thi~ question of law a final one, it will appear that not only this Act will have conferred a right upon landlord very much in excess of the right that he enjoys under the ordinary law in the matter of determination of tenan cies, but that it will have conferred very much larger power on the Controller Civil Courts under the ordinary law in the matter of passing decrees for eviction of tenants. The principle of law and equity on which relief against forfeiture for 'non-payment of rent' is based, will have been com tenant in pletely abrogated, and the protection of a · possession of a building instead of being enlarged will that possessed by 195! RaiBrijRoj Krishna alCd .Another v. S. Jr.Shau! and Brother1. Fad Ali]. 150 SUPREME COURT REPORTS [1951] construction of have been very much cunailcd. A to . bring about these provisions, which is calcul_ated in accordance these consequences,· cannot and is not with the circumstances to which this Act was intended to apply and indeed cannot be accepted. The conten tion of Mr. Lalnarain Sinha on behalf of the respon in the petition dent that the circumstances disclosed raised the question for determination by the Controller law was whether a case of non-payment of rent established, and his decision of that question, even wrong in law, is not liable to be questioned Civil Court must be over-ruled." to us It seems taken by the High the view Court is not correct. Section 11 begins with the words any agree "Notwithstanding anything contained ment or law to be contrary," and hence any attempt to import the provisions relating to the law of transfer of property for the interpretation of the section would seem to be out of place. Section 11 is a self-contained section, and it is wholly unnecessary to go outsiae the Act for determining whether a tenant is liable to be evicted or not, and under what conditions he can be It clearly provides that a tenant is not liable evicted. to be evicted except on certain conditions, and one of the conditions laid down for the eviction of a month to month tenant is non-payment of rent. Sub-section "Controller (3) (b) of section 11 provides shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing put the landlord in possession of the building" and if he is not so satisfied he shall make an order rejecting the application. Section 16 empowers the Controller to make enquiries and inspections and to summon and the attendance of witnesses and compel the enforce in the same manner as is production of documents provided in the Code of Civil Procedure. Section 18 provides that any person aggrieved by an order passed by the Controller may within 15 days of the receipt of such order by him, prefer an appeal to the Commis sioner of procedure for the hearing of the appeal. Sub-section (3) the Division, and it also prescribes tenant 1951 RaiBrjj Raj Krishna on4 .4.Nothlr v. S.K.S/uzaJ ant! Brotlu,s. Fa1:l .4.li]. S.C.R SUPREME COURT REPORTS 151 of this section st; ltes that "the decision of the Com missioner and subject only to such decision, an order of the Controller shall be final, and shall not be liable to be questioned in any Court of law whether in a suit or other proceeding by way of appeal or revision." The Act thus sets. up a complete machinery for ~ investigation of those matters upon which diction of the Controller to order eviction of a tenant depends, and it expressly makes his order final and subjec~ only to the decision of the Commissioner. The Act empowers the Controller alone to decide whether or not there is non-payment of rent, and his decision on that question is essential before an order can be passed by him under section 11. Such being the pro visions of the Act, we have to see whether it is at all possible to question the decision of the Controller on a matter which the Act clearly empowers him to decide. The law on. this subject has been very stated by Lord Esher M._ R. in The Queen v. Commissioners ·for Special Purposes of the lncome-Tax(1), words:- lucidly to do the power of deciding facts, "When an inferior court or tribunal or body, which is first has to exercise established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or It may in effect say that, if a certain state of body. tribunal or body facts exists and is shown to such before it proceeds to do certain things, it shall have jurisdiction such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and if they jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there another state of things which may exist. The intrust jurisdiction, which includes the tribunal or body with a the preliminary state of jurisdiction, on finding that it does exist, to proceed further or do jurisdiction to determine whether facts exists as well as legislature may exercise (I) 21Q.B.D.313,at319. 20 !95! .Roi Brij Raj Krishna and .dnothu v. S.K.S/i4W ,and Brotlurs. FazlAliJ. 152 SUPREME COURT REPORTS [1951] jurisdiction there will be none. something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they they give also have to consider, whatever them, whether there shall be any appeal from their decision, for otherwise is an second of the two ·cases I have mentioned it erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, in cluding the existence of the preliminary facts on which the further exercise of their jurisdiction depends ; and if they were given to decide, without jurisdiction so any appeal being given, there is no appeal from such exercise of their jurisdiction." In On the same lines are the following observations of Sir James Colville in The Colonial Bank of Australasia v. Willan(1), which the prin ciples on which a writ of certiorari may be issued :- is a case dealing with the authorities .... establish that an "Accordingly, adjudication by a Judge having jurisdiction over the subject-matter is, if no defect appears on the face of it, to be taken as conl:!usive of the facts stated therein ; and that the Court of Queen's Bench will not on cer tiorari quash such an adjudication on the ground that any such fact, however essential, has been erroneously found." There can be no doubt that the present case falls within the second category mentioned by Lord Esher, because here the Act has entrusted the Controller with a jurisdiction, which includes the jurisdiction to deter mine whether there is non-payment of rent or not, as well as the jurisdiction, on finding that there is non payment of rent, to order eviction of a tenant. There fore, even if the Controller may be assumed to have wrongly decided the question of non-payment of rent, which by no means is clear, his order cannot be questioned in a civil court. to us that on this short ground this appeal must succeed, and we It seems (!)SP. C. 417, at P· 443. S.C.R. SUPREME COURT REPORTS 153 accordingly allow the appeal, set aside the judgment and decree of the High Court and restore the decree of the courts ·below. The appellants will be entitled to costs throughout. Appeal allowed. 1951 Rai Brij Raj Krishna and Another v. S.K. Shaw' and BrolhlTs. Agent for the appellant : R. C. Prasad. Agent for the respondent : S. P. Varma. BADRI NARAIN JHA AND OTHERS "· RAMESHWAR DAYAL SINGH AND OTHERS. rsAIYID FAZL Au, MEHAR CHAND MAHAJAN, MuKHERJEA and CHANDRASEKHARA A1YAR JJ.] 19~1 Feb. 5. Landlord and tenant-Merger-One of several interest acquiring portion of lakhra; of mokarrari · merger-Partition amongst qua lessor, not affected. lessees inter sc--lntegrity of ioint holders interest-No lease, If a lessor purchases lease is extinguished by merger, but there can be no merger or joint holders of the mokarrari extinction where one of several interest purchases portion of the lakhraj interest. the whole of the lessee's interest, A partition inter se amongst several mokarraridars does not in any way affect the tenancy or make each integrity of the holder of an interest in it a separate holder of a different tenancy, and notwithstanding remain liable qua the rent as one tenant. lessor or the payment of the mokarraridars such partition the whole White v. Tyndall (13 App. Cas. 263) referred to. CIVIL APPELLATE JuRismcnoN : Appeal from a judgment and decree of the High Court of Judicature at Patna dated 14th February, 1946, in Appeal from Original Decree No. 117 of 1942 arising out of Title Suit No. 9 -0f 1939 : Civil Appeal No. 40 of 1950. S. C. Misra for the appellant. N. C. Chatterjee (P. B. Gangoli, with him) for the respondent.