Decided on January 02,1952

TULSI DEI Appellant


Lakshmikanta Jha, C.J. - (1.) This application in revision is by a landlady who obtained an order of eviction against one Ramdas under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947). I think on merits the application must fail.
(2.) The petitioner, treating Ramdas as her tenant from month to month in respect of a building, started a proceeding under Section 11(1) (a) of the Act for his eviction for non-payment of rent. On 12-2-1947, a compromise petition was filed by the parties to the effect that the tenant be allowed to remain in occupation till 13-11-1947, and that he would vacate the house on 14-11-1947, failing which he may be forcibly evicted. Ramdas did not vacate the house on the specified date and thereupon on 19-12-1947, the petitioner filed a petition before the Controller for his eviction, and the Con troller having found that rent had not been paid for the year 1947 ordered him to vacate the house by 2-5-1948, and put the petitioner in possession. Ramdas, however, did not com ply with the order and thereupon under the provisions of Section 17 of the Act the petitioner commenced an execution proceeding in the court of the Munsif, 1st court, Gaya, seeking, his eviction. During the pendency of the peti tioner's application for execution, the opposite party, Satruhan, the son of Ramdas, filed a suit for declaration of his title and applied for a temporary injunction under the provisions of Order 39, Rule 1, and though an 'ad interim' injunction was granted the order was vacated by the learned Munsif on 25-4-1949. On 26-4-1949. Satruhan preferred a claim in respect of the house as a tenant from month to month un der Order 21, Rule 58, Civil P. C., in the execution proceeding pending in the Munsiff's Court and alleged that Ramdas, his father, was not the tenant thereof. The point for decision before the executing court was whether Satruhan was in possession of the house in dispute on his own account. Both parties led evidence on this point, and the learned Munsif, on a considera tion of the evidence, oral and documentary, was satisfied that Satruhan was in possession on his own account and not on account of his father, Ramdas. In deciding this question the learned Munsif did not act with material ir regularity in the exercise of his jurisdiction, nor did he assume jurisdiction which he did not possess, because under Section 17 of the Act he was empowered to execute the order of the Controller. Therefore, in the exercise of our revisional jurisdiction we cannot interfere with the order passed by him.
(3.) It is, however, contended that the learned Munsif, while executing the order of the Controller under the provisions of the special enactment, had no power to entertain a claim preferred under the provisions of Order 21, Rule 58, Civil P. C. I do not think there is any substance in this contention. The Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. which has been enacted to regulate the letting of buildings and the rent of such buildings to prevent unreasonable evictions of tenants therefrom, sets up a complete machinery for the investigation of those matters which fall within the jurisdiction of the Controller under the Act. Section 11 of the Act provides, 'inter alia', that a tenant from month to month may ba evicted from a building on an application by the landlord for non-payment of rent. In this particular case the petitioner did file an application for eviction of Ramdas on the ground that he was a tenant from month to month and that he did not pay rent regularly. The Controller passed an order on 19-12-1947, as already stated, asking Ramdas to vacate the house by a certain date. His order is final (subject to an appeal to the Divisional Commissioner as provided in Section 18) and is executable as a civil court decree under the provisions of Section 17 of the Act. But as the order of the Controller is to be executable as if it were a civil court decree, the relevant provisions of Order 21 of the Code relating to execution of decrees and orders must be held to be applicable in the absence of any provision in the Act barring the application thereof. . It was, therefore, in my opinion, within the power of the Munsif as executing court to decide the claim preferred by Satruhan, as the dispute falls within the provisions of Order 21, Rule 58, as amended by this Court, which runs as follows : "58. (1) When any claim is preferred to any property, the subject-matter of execution proceedings, or any objection is made to the attachment thereof, on the ground that the applicant has an interest therein which is not bound under the decree, or that such property is not liable to attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and. in all other respects, as if he was a party to the suit : Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) Where the property to which the claim or objection applies has been advertised for sale, the Court ordering the sale may in its discretion make an order postponing the delivery of the property after the sale pending the investigation of the claim or objection. And in no case shall the sale become absolute until the claim or objection has been decided." The remedy of the petitioner is to institute a suit under Order 21, Rule 63, to establish her case that Ramdas is her tenant or to treat Satruhan as her tenant and go back to the Controller to seek his eviction. In the absence of such a step the order of the learned Munsif is conclusive and Satruhan must be deemed to be the tenant under her in respect of the building. If the contention of the petitioner be right that the executing court cannot entertain an objection under Order 21, Rule 58, Civil P. C., it would be open to any landlord to start a collusive proceeding before the Controller treating a creature of his own as a tenant, and secure the eviction of a person who may be a 'bona fide' tenant from month to month on his own account by executing the Controller's order in the civil court. The Act, in my opinion, must be held to have avoided such a contingency by not barring the application of Order 21. Therefore, this argument of the learned counsel must also fail.;

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