Md. Khaliquz Zaman vs Shri H.C. Joshi

S.J. Mukhopadhaya, J.—The Petitioner-decree holder has challenged the impugned order dated 4th February, 1994 passed in Execution Case No. 7 of 1993, by Shri J.N. Jha, Munsif, Danapur.

By the impugned order, the learned Munsif has dismissed the execution case aforesaid on the ground that there cannot be any execution with respect to an order passed u/s 5 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the B.B.C. Act) and thereby the execution case is not maintainable.

Sri H.C. Joshi, judgment debtor-opposite party is tenant of decree holder Petitioner since the period of father of the Petitioner. According to the Petitioner, the judgment debtor-opposite, party was inducted as a tenant long back by his father for a meagre amount of rent, which was gradually enhanced time to time with mutual consent. Last rent was Rs. 100/- per month, which the opposite party was paying since long. In the year 1990, because of devaluation of money, the Petitioner has asked for enhancement of rent, on which the Opposite party refused. In such circumstances, he was forced to file a case u/s 5 of the B.B.C. Act.

The Controller after due notice and on hearing the parties has fixed a rent @ Rs. 1791/- per month giving the same effective from 26th of July, 1990 i.e.the date of filing of the case. The finding of the Controller is Annexure-1. The judgment debtor-opposite party filed B.B.C. Appeal on 6th February, 1991 before the Collector, Patna bearing B.B.C. Appeal No. 94 of 1991. Inspite of mandatory order for depositing arrears of rent and the month to month rent, at the rate fixed by the Controller, as provided u/s 16 of the B.B.C. Act, the opposite party did not choose to deposit the same. Such order was passed by the learned Collector on 16th August, 1991. Thereafter the opposite party filed revision on 30th August, 1991 before the Commissioner, Patna Division, bearing B.B.C. Revision Case No. 92 of 1991. The same was also dismissed on 7th April, 1992 for non-compliance of mandatory provisions of Section 16 of the B.B.C. Act. The B.B.C. appeal was also dismissed by the Collector, Patna on 22nd of March, 1993.

In the meantime, after decision of the Controller dated 22nd of January, 1991 (Annexure-1) and filing of the appeal by the opposite party before the Collector, the opposite party filed one Title Suit No. 63 of 1991. Curiously, in the said Title Suit, he denied the relationship of landlord and tenant and prayed for injunction to restrain the recovery of amount of rent fixed by the Controller. The same is pending.

On the part of the decree holder Petitioner, he having not received the month to month rent, particularly on the basis of the rent fixed by the Controller, moved in the court of the learned Munsif, Danapur under the provisions of Order 21, Rule 10 of CPC read with Section 23 of the B.B.C. Act, by filing one Execution Case No. 7 of 1993. As stated above, the same has been rejected by the impugned order dated 4th February, 1993, on the ground that the execution case is not maintainable with respect to an order passed u/s 5 of the B.B.C. Act.

Counsel for the Petitioner submitted that u/s 23 of the B.B.C. Act, the court of Munsif was duty-bound to execute the order of the Controller, treating the order passed u/s 5 of the B.B.C. Act, as a decree passed by such court. He argued that the execution case was maintainable and the court below has illegally passed the impugned order.

Counsel for the judgment debtor opposite party submitted that the impugned order has been rightly passed by the learned Munsif, Danapur. According to him, the order passed by the Controller u/s 5 of the B.B.C. Act is merely a declaratory order, declaring therein the rent of the house to be paid by the tenant. It was thereby argued that there was nothing to be executed by the court below, as there being no order of recovery from the judgment debtor opposite party. Further, according to him, if the Controller would have passed some sort of order like awarding the cost and/or penalties, then only with respect to such type of orders, execution case should have been filed u/s 23 of the B.B.C. Act. It was ultimately argued by on behalf of the opposite party that the order of Controller which is to be executed u/s 23 of the B.B.C. Act does not include the order issued u/s 5 of the B.B.C. Act, as by such order only rent is fixed and no quantum of arrears being fixed by such order. It was contended further on behalf of the Opposite party that he has already filed a title suit denying the relationship of landlord and tenant on the ground that the house in question is inhabitable and thereby he cannot be treated to be a tenant. In such background also, the order of Controller cannot be executed u/s 23 of the B.B.C. Act. Further, according to him, the order u/s 5 of the B.B.C. Act cannot be treated to be a decree. In fact, the Petitioner should have moved in suit for arrears of rent and only after obtaining a proper decree from there, the Petitioner can move for execution of the same.

Having heard the parties, I feel that the argument of the Opposite party is misconceived. Section 2(d) of the B.B.C. Act gives the definition of court, which reads as follows:

Court means the Court having jurisdiction under the Code of Civil Procedure, 1908 (Act of 1908), to entertain a suit by a landlord against a tenant for recovery or possession of building in respect of which a suit or application is filed under this Ordinance;

Section 23 of the B.B.C. Act specifically provides that each and every order of the Controller/appellate authority and/or revisional authority is to be executed by the court, as if such order were a decree passed by such Court.

Section 23 reads, as follows: "Execution of orders of Controller and Commissioner.-Every order of the Controller passed under this Ordinance, where no appeal against such order has been preferred u/s 24, every order of the appellate authority on appeal u/s 24 and every order of the Commissioner passed in revision u/s 26 shall be executed by the Court as if such order were a decree passed by such Court." From plain reading of Section 23 read with Section 2(d) of the B.B.C. Act, it is manifestly clear that every order passed by the Controller; appellate authority u/s 24 and/or revisional authority u/s 26 of the B.B.C. Act, they are to be treated as a decree for all purpose and further the exe:ution of the same is to be made by such Court, in terms of Sections 2(d) of the B.B.C. Act, treating such order as decree. No distinction can be made between one or other type of order by the Controller, appellate authority and/or revisional authority. When there is no ambiguity in the language of the statute (here Section 23 of the B.B.C. Act), the same cannot be given some other interpretation than the language mentioned therein. Now with respect to an order passed by the Controller u/s 5 of the B.B.C. Act, it is to be tested as to whether the same is mere a declaratory order relating to rent of a particular house and/or the same can be executed or not, my findings are as follows.

The Controller, in the present case, has fixed the rent by, order dated 22nd January, 1991 (Annexure-1) to the extent of Rs. 1791/- per month and has fixed the same with effect from 26th'' July, 1990. Thereby, it is clear that the Opposite party is to pay such rent @ Rs. 1791/- with effect from 26th July, 1990 and arrears is to be calculated from the said date, at least upto the date of the judgment. Further it will be evident from Section 16 of the B.B.C. Act that if a person moved in appeal against an order of Controller, during the pendency of the appeal and/or revision, the tenant is required to pay the rent month to month at the rate fixed by the Controller, by the 15th day of the following month, together with arrears, if any. Such month to month rent, as fixed by the Controller and the arrears of rent to be deposited in the prescribed manner till the matter is settled between the parties by the appellate and/or revisional authority. In the present case, specific order was passed on 16th August, 199 u/s 16 of the B.B.C. Act by the appellate authority. Thereby, by virtue (sic) order dated 16th August, 1991 passed i(sic) B.B.C. Appeal No. 94 of 1991, the Op-posite party was duty-bound to pay the month to month rent on 15th day of eac(sic) subsequent month with arrears which was due since 26th July, 1990. The appealed having been dismissed and the revisi(sic) application order having been dismisse the order of Controller u/s 5 the B.B.C. Act become final. Thereby, it clear that the Opposite party was due bound to pay the rent month to month @ Rs. 1791/- with arrears with effect from 26th July, 1990, at least till appellate order was finalised. In fact, he is also liable to pay same rent even after final order of the appellate authority/revisional authority, both having been dismissed.

From the aforesaid facts, it is manifest and clear that the order passed by the Controller u/s 5 of the B.B.C. Act having become final, the execution court is to execute the same by taking action so that such rent including the arrears, at least till the date of filing of the execution case, is paid by the tenant in favour of the landlord. I thereby hold that the order passed u/s 5 of the B.B.C. Act by Controller is liable for execution in terms of Section 23 of the B.B.C. Act.

So far as pleading of the Opposite party that he has already filed a Title Suit No. 63 of 1991, questioning therein the relationship of landlord and tenant, I feel that the same has nothing to do with the execution of the order passed by the Controller u/s 5 of the B.B.C. Act, after its confirmation by the appellate/revisional authorities. Sub-section (3) of Section 24 of the B.B.C. Act clearly stipulates that an order of Controller, which becomes final, is not liable to be questioned in any Court whether a suit or other proceeding except by way of appeal or revision as made under Sections 24 and 26 of the B.B.C. Act. In that view of the matter, the landlord-tenant relationship having already been decided by the Controller u/s 5 of the B.B.C. Act by the order dated 22nd January 1991 as contained in Annexure-1, such order cannot be altered by any Civil Court.

From the aforesaid discussions, it is manifest that the impugned order dated 4th February, 1994 passed in Execution Case No. 7/93 is completely illegal and is thereby set aside. The Court below is directed to expedite the aforesaid execution case immediately. If necessary the Executing Court may make the calculation relating to the arrears of rent after hearing the parties.

The Civil Revision application is allowed with the aforementioned observa-tions and directions.