Decided on July 29,1952



Das, J. - (1.) This second appeal by the plaintiff raises the question whether an order of the Commissioner, dated the 2nd of November 1950, in an appeal preferred under Section 18 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, was without jurisdiction.
(2.) The question has arisen on the following facts. The respondent is the owner landlord of a double-storied house bearing holding No. 124, Circle No. 4, standing on the Sinha Library Road in the town of Patna. The appellant occupied three rooms on the ground-floor of the house. On the 17th of July 1948, the respondent applied to the Controller, under Sub-section (3) of Section 11 of the aforesaid Act, for an order of eviction against the appellant on the ground that he required the rooms in question reasonably and in good faith for his own occupation. For convenience this ground has been described as the ground of personal necessity. This application was dismissed by the Controller on the 23rd of December 1948. There was an appeal under Section 18 of the Act, and the Additional Commissioner of Patna Division upheld the order of the Controller on the 13th of May 1949, and rejected the appeal. On the 31st of October 1949, the respondent again applied to the Controller for an order of eviction against the appellant on three grounds, (a) non-payment of rent, (b) breach of a condition of the tenancy, and (c) personal necessity in accordance with the provisions of Sub-section (3) referred to above. By his order dated the 16th of May 1949, the Controller allowed the application on the ground that there was a breach of a condition of the tenancy, which gave the landlord the right to ask for eviction of the tenant. The learned Controller negatived the plea of nonpayment of rent. On the plea of personal necessity, the learned Controller held that his previous decision created the bar of 'res judicata'. There was then an appeal to the Commissioner by the present appellant against the order of eviction passed by the controller. This appeal was disposed of by the learned Commissioner by his order dated the 2nd of November 1950. The learned Commissioner upheld the contention of the appellant that there was no breach of the condition of the tenancy, which would give the landlord the right to ask for an eviction of the tenant. He, however, held that the learned Controller was wrong in his view that his previous decision on the plea of personal necessity created the bar of res judicata, and he expressed the view that personal necessity might change from time to time and would depend on the circumstances existing at the time. The operative portion of the order of the learned Commissioner was expressed in the following terms: "I would, therefore, remand the case for further enquiry and decision by the Controller on the point of personal necessity." We are told that the Controller then decided the case afresh, passed an order of eviction against which the appellant appealed unsuccessfully.
(3.) The present appellant then brought a suit for a declaration that the order of the Commissioner was without jurisdiction. The suit was dismissed by the learned Munsif. An appeal against the decision of the learned Munsif was dismissed by the learned Subordinate Judge.;

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