- (1.) This is an appeal from a judgment and decree of the H. C. of Judicature at Patna reversing the appellate decree of a Subordinate Judge in suit instituted by the resps. The facts of the case are briefly these. The resps. have been in occupation as a monthly tenant of several blocks of premises belonging to the applts. at a monthly rental of Rs. 112. The rent for the months of March, April and May, 1947 having fallen into arrears, they remitted it along with the rent for June, on 28-6-1947, by means of two cheques. As the applts did not accept the cheques, on 4-8-1947, the resps. remitted the amount subsequently by postal money order. On 12-8-1947, the applts. maintaining that there was non-payment of rent and hence the resps. were liable to be evicted, under S. 11 (1) (a), Bihar Building (Lease, Rent and Eviction) Control Act, 1947 (III [3] of 1947), applied to the House Controller for the eviction of the resps. from the premises. Section 11 (1) (a) of the Act runs as follows: "Notwithstanding anything contained in any agreement or law to the contrary and Subject to the provisions of S. 12, where a tenant is in possession of any building, he shall not be liable to be evicted therefrom, whether in execution of a decree or otherwise, except- (a) in the case of a month to month tenant, for non-payment of rent or breach of the conditions of the tenancy, or for subletting the building or any portion thereof without the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment;"
(2.) On 30-8-1947, the resps. whose money order had in the meantime been returned by the applts. deposited the rent up to the month of June in the Office of the House Controller. Notwithstanding this deposit, the House Controller passed an order on 10th November, directing the eviction of the resps. by 10-5-1948, and holding that they had trade themselves liable to eviction by reason of non-payment of rent. The order of the House Controller was upheld by the Comr. on appeal on 27-4-1948, and there upon the resps. filed the present suit in the Patna Munsif's Ct. for a declaration that the order of the Controller dated 10-11-1947 was illegal, ultra vires and without jurisdiction. The suit was dismissed by the Munsif and his decree was upheld on appeal, but the H. C. decreed the suit holding that the order of the Rent Controller was without jurisdiction. The applts. were thereafter granted leave to appeal by the H. C. and they have accordingly preferred this appeal.
(3.) The H. 0. has delivered a somewhat elaborate judgment in the case, but it seems to us that the point arising in this appeal is a simple one. The main ground on which the resps. have attacked the order of eviction passed by the House Controller is that in fact there was no non-payment of rent, and since no eviction can be ordered under the Bihar Act unless non-payment is established, the House Controller had no jurisdiction to order eviction. On the other hand, one of the contentions put forward on behalf of the applts is that there was non-payment of rent within the meaning of that expression as used in the Act, since the rent was not paid as and when it fell due. It was pointed out that the rent for the month of March became due in April and the rent for April became due in May, but no step was taken by the resps. to pay the arrears until 28-6-1947. It appears that at the inception of the tenancy, the resps. had paid one month's rent in advance, and it had been agreed between them and the applts that the advance rent would be adjusted whenever there was default in payment of rent for full one month. It was however pointed out that the advance payment could be adjusted only for one month's rent, but, in the present case, the rent for three months had become due, and since in a monthly tenancy the rent is payable from month to month, the 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 S. 11 (1) (a) of the Act. The applts. also raised a second contention, namely, that having regard to the scheme of the Act, the House Controller was fully competent to decide 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 Ct, and the first appellate Ct. dealing with it observed as follows : "But the Buildings Control Act has authorised the Controller to decide whether or not there is non-payment of rent and it is only when he is satisfied that there has been non- payment of rent then he assumes jurisdiction. If the question of jurisdiction depends upon the decision of some fact or point of law and if the Ct. is called upon to decide such question then such decision cannot be collaterally impeached (vide Girwar Narayan v. Kamla Prasad, 12 Pat. 117: (A.I.R. (20) 1933 Pat. 104). In my opinion when the Controller assumed the jurisdiction on being satisfied that there was non-payment of rent and proceeded to pass an order of eviction I think the civil Ct, can have no jurisdiction to challenge the validity of such order.";