Untwalia, J. - (1.) DR. T. N. Banerjee, Chairman, Banerjee Trust, leased out a portion of a house, situated within the limits of Patna Municipal Corporation near the Gandhi Maidan, to a Company known as Bokaro and Ramgur Ltd. by a written agreement dated the 13th September, 1960. Under the terms of the lease the company had agreed that on its failure to pay rent for two consecutive months to the lessor, it would be liable to be evicted from the demised premises. The rent which was fixed by way of consolidated charges was to be paid by the company to the lessor by the 7th day of each month. According to the case of the lessor, the lessee failed to pay the rent for the months of June, July. August and September, 1961, in spite of repeated demands and so the former served a notice dated the 11th of September, 1961 on the latter terminating the lease and requesting it to vacate the house forthwith or latest by the 30th of September, 1961. Disputes arose between the parties in connection with the matter aforesaid, and they agreed to refer them to arbitration in accordance with the arbitration agreement incorporated in the deed of lease. Eventually, Shri Ayodhya Pd. Sinha, a retired subordinate Judge, was appointed as the sole Arbitrator to decide and determine the disputes between the parties.
(2.) THE contentious question which fell for determination before the Arbitrator was whether the lessee had defaulted in payment of rent and was liable to be evicted from the demised premises. THE arbitrator, after hearing the parties and taking evidence in the matter, came to the conclusion that there has been forfeiture of the lease because the rent for more than two consecutive months had not been paid by the lessee to the lessor. He, therefore, held that the former was liable to be evicted and made an award accordingly on the 6th of May, 1962. The award was filed in court by the Arbitrator on the 20th of August, 1962, whereupon miscellaneous case No. 64 of 1962 was registered and started. Notice of the filing of the award was given to each party. On the 10th of September, 1962 a petition was filed on behalf of the 1st party, namely, the lessor accepting the award. The 2nd partv. namely, the lessee-Bokaro and Ramgur Ltd. filed its first objection to the award on the 10th of November, 1962, within 30 days of the service of the notice of the filing of the award. By an order of the court dated the 21st of December, 1962, the miscellaneous case was directed to be converted into a title suit; eventually it was registered as title suit No. 3 of 1963. In the title suit Bokaro and Ramgur Ltd. which figured as the defendant filed a supplementary written statement on the 15th of January. 1963 taking many more objections to the award and to its being made a rule of the court. The learned Additional subordinate Judge, to whom the case was transferred for disposal, overruled all the obiections raised by the lessee and passed a decree on the basis of the award. The company went up in appeal under Section 39 of the Arbitration Act, 1940 (Central Act 10 of 1940) hereinafter called the Act--from the order of the learned Additional Subordinate Judge refusing to set aside the award. Only two objections to the award were pressed in the court of appeal below; the other objections were not pressed. The two points pressed there are:- (i) That the Arbitrator made his award beyond the period of 4 months after entering on the reference; such an award being invalid could not be made a rule of the court. (ii) That in view of the provision of law contained in Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947) the arbitrator had no jurisdiction to pass an order of eviction from the house as an order or decree to that effect could be made by a competent court only. The learned Additional District Judge who heard the appeal overruled both the objections and dismissed it. The company came in revision to this court under Section 115 of the Code of Civil Procedure. Dr T. N. Baneriee died during the pendency of the proceeding and his successor. Dr. Prasun Kumar Banerjee. Chairman of the Banerjee Trust, is the sole opposite party in the civil revision
(3.) THE civil revision came up for hearing before a Bench of this court consisting of Tarkeshwar Nath and Anwar Ahmad, JJ. THE only two points which had been pressed in the court of appeal below were urged before the Bench also. On the facts and in the circumstances of the case, which will be more fully dealt with hereafter in my judgment, in regard to the first point there appeared to be a conflict between the views taken in two Bench decisions of this court in Patto Kumari v. Upendra Nath Ghosh, 4 Pat LJ 265 = (AIR 1919 Pat 93) and Lakhmir Singh v. Union of India. AIR 1957 Pat 633. THE second point appeared to be of considerable importance, and their Lordships were pleased to direct by their order dated 15th of March, 1967, that the records of this case be placed before my Lord the Chief Justice for referring it to a Full Bench. THE Division Bench formulated the following two points for reference to the Full Bench: " (1) Whether a party who has participated in the proceeding before the arbitrator even after the expiry of the time for the submission of the award has waived its right and is estopped by its conduct from challenging the validity of the award on the ground that it was filed out of time, and (2) Whether the decree of a court under Section 17 of the Arbitration Act in terms of the award holding that a tenant was liable to eviction on account of default in the payment of rent for two months consecutively was a decree of the 'court' as envisaged by Section 11 read with Section 2(bb) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 " Since the points for reference arose in a civil revision, under Rule 4 of Chapter V of Part II of the Patna High Court Rules, the civil revision itself was placed before the Full Bench for decision. Mr. Lal Narain Sinha appearing on behalf of the company did not press the second point before us. Obviously the point had no substance as the award, if not invalid or set aside, is made the rule of the court which proceeds to pronounce judgment according to the award under Section 17 of the Act and upon the judgment so pronounced a decree follows. The decree for eviction, which has followed in this case, has become a decree of the court within the meaning of Section 11 of the Bihar Act 3 of 1947.;