Brindaban Bihari Lal vs Badri Prasad Mahaseth

Ramaswami, J.—The facts material for the decision of this appeal are not in dispute. The respondent, Badri Prasad Mahaseeth, was a tenant of Brindban Bihari Lal with respect to a house, holding No. 106, on the Exhibition Road, Patna, on the 30th January 1946; the landlord applied to the Controller under the House Bent Control Order, 1942, for evicting the respondent. The Controller asked the respondent to pay up the arrears of rent within a fortnight failing which he would order eviction. The respondent preferred an appeal. The Commissioner dismissed the appeal, and ordered the respondent to vacate the house. On 27th March 1917, the appellant applied under Act III [3] of 1947 for executing the order of the Commissioner passed on 2nd May 1946. The respondent objected that the order of the Commissioner was incompetent, and ought not to be executed. The Munsif disallowed the objection. In appeal, the Subordinate Judge held that the order of the Commissioner was illegal, and the execution ought not to proceed.

Against this order, the landlord has preferred this appeal.

On his behalf, learned advocate argued, in the first place, that no appeal lay from the decision of the Munsif; and the second appeal to this Court was incompetent. Reference was made to Raghubans Sahai v. Phool Kumari 32 Cal. 1130 in which Mookherjee J., in construing Section 19(2), Public Demands Recovery Act, held that Section 244 of the old CPC did not bar a suit for setting aside an auction sale on the ground of fraud. But that case must be manifestly distinguished, for Section 19, enacted that

every certificate may be enforced and executed in the manner provided by Chap. 19, Civil P. C, for the enforcement of decrees for money, and all the provisions of that Chapter and of Chap. 20 shall apply, so far as they are applicable.

The qualifying phrase (which is underlined [here italicized]) is absent in the present case. For appellant, reference was made to Mathura Prasad and Another Vs. Sheobalak, in which the learned Judges had to construe Section 42, Co-operative Societies Act (n [2] of 1912). They held that the policy of the Act was that matters arising under that Act should be settled without litigation in the Courts, and that if litigation were permitted, the whole object of the Co-operative Societies Act would be defeated. For this reason, the learned Judges were of opinion that no appeal lay from an order of the civil Court executing an award of the Registrar under the Act. In the present case, Section 17 of Act III [3] of 1947 states that

Every order of the Controller passed under this Act and every order of the Commissioner passed on appeal u/s 18 shall be executed by the Court having jurisdiction to entertain a suit for the recovery of arrears of rent in respect of the building in relation to which the order to be exeouted is passed, as if such order were a decree passed by such Court.

The phrase "as if such order were a decree passed by such Court" is unqualified, and ought to be properly construed in its context. In my opinion, the order of the Munsif u/s 17 of the Act would be appealable u/s 47, Civil P.C. In the present case, an appeal lay to the District Judge from the order impeached, and the second appeal also is competent.

The more important question then arises whether the order of the Commissioner, dated 2nd May 1946, could be executed by the civil Court u/s 17 of Act III [3] of 1947. Section 2S of the Act provides:

(1) The Bihar Buildings (Lease, Bent and Eviction Control) Ordinance, 1946, is hereby repealed.

(2) Any rule, order or direction made or given or deemed to be made or given under the said Ordinance and in force immediately before the commencement of the Act shall continue in force and be deemed to be an order or direction made or given under this Act; and anything done and any action taken in exercise of any power conferred by or under the said Ordinance shall be deemed to have been made, done or taken in exercise of powers conferred by or under this Act as if this Act had commenced on the 1st day of October 1946.

Section 22 of the repealed Ordinance II [2] of 1946 provided for the continuance of the orders made under the House Rent Control Order, 1942. That section enacted that

Every order or direction made or given under provisions of the Bihar House and Business Premises Control Order, 1942, in respect of any of the matters specified in this Ordinance shall, so far as it could validly have been made or given by the Provincial Government or the Controller, continue in force and be deemed to have been made or given under this Ordinance until it is superseded or modified by a competent authority under this Ordinance.

On these statutory provisions, it is manifest that the order of the Commissioner, dated 2nd May 1946, would continue in force only if it could validly have been made by the Provincial Government under that order.

The question, therefore, is whether the order of the Commissioner could validly have been made by him under the Bihar House Rent Control Order, 1942.

Section 4(1) of this order is headed "continuation of existing tenancies from month to month and bar against increase of rent." The section enacts that

Where a tenant is, on the date of the* commencement of this order, in possession of any house on a tenancy from month to month, he shall not be liable to be ejected except for non-payment of rent or breach of the conditions of the tenancy, and the landlord shall not be entitled to increase the rent which was, on the date of the commencement of this order, payable for such house.

The section does not in express terms confer any power on the Controller, much less on the Commissioner, to order eviction of a tenant on the ground of non-payment of rent. For the appellant, it was contended that Section 4(1)(a) conferred by implication jurisdiction on the Controller to eject a tenant on the ground of non-payment of rent. But we cannot assume or presume that such a jurisdiction is conferred, unless it is stated in express terms in the statute. In my opinion, the meaning of the section is plain, and the Controller was not granted any power or jurisdiction to order eviction of a tenant for non-payment of rent. In this context, reference may be made to the well-known rule that a statute conferring a new jurisdiction ought to be strictly construed: Flower v. Lloyd (1877) 6 Ch. D. 297 and Diss v. Aldrich (1877) 2 Q.B.D. 179. It is manifest, therefore, that the order of the Commissioner was illegal, and that it could not continue in force by application of the saving clause of Act III [3] of 1947.

In my opinion, the Subordinate Judge correctly held that the order of the Commissioner could not be executed u/s 17 of Act III [3] of 1947.

I should dismiss this appeal, but in the special circumstances of this case, there will be no order as to costs.

Sinha J.

I agree.