# RAI BRIJ RAJ KRISHNA AND ANOTHER v. S. K. SHAW AND BROTHERS

- **Citation:** [1951] 1 S.C.R. 145
- **Court:** Supreme Court of India
- **Decided:** 1949-03-25
- **Bench:** Saiyid Fazl Ali, Meher Chand Mahajan, MuKHERJEA, CHANDRASEKHARA ArYAR JJ
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rai-brij-raj-krishna-and-another-v-s-k-shaw-and-brothers-170
- **Pages:** 9

## Headnote

Bihar Buildings (J..rau-, Rent and Eviction) Co11:trol Act (Ill
of 1947), s., 11-0rder of Controller for eviction on the ground of
non-payment of rent- Suit to set aside order-Jurisdiction of civil
cour:-Q11estion rtihc:her
there
was
non-payment-Finai1ty
of
Controller' 1 tleeision.
Section 11 of the Bihar Buildings (Lease, Rent and Eviction)
Control Act, 1947, has entrusted the Controller with a jurisdiction, which includes the jurisdiction to determine whether there
is non-payment of rent or not, as
well as the jurisdiction, on
finding that there is nor.-payment of rent, to order eviction of a
tenant. Therefore, even if a Controller has wrongly decided the
question whether there has been non-payment of rent, his order
for eviction on the ·ground that there has been non-payment of
rent cannot be questioned in a civil court.
Queen v. Comm_iuroners for Special Purposes of Income·To1t
(21 Q.B,D. 313) and Colonial Bank of Australasia v.
W1'llah (L.R.
S P.C. 417) relied on.
1951
Ramananitan Prasal
Narayan Singh
V•
Mahanth Kapildeo
RamJeeaud
Another
Chandrasekhara.
Aiyar J.
i95I
Feb. 2.
RaiBrij Baj
Kris/1110 aRd
Anothtr
...
.S. K. Shaw
.and Broth111.
146
SUPREME COURT REPORTS
[1951]
CIVIL
APPELLATE
)UR1so1cnoN:
Appeal from
a
judgment and decree of the Patna High Court dated
25th March, 1949, in A.S. 2280 of 1948 reversing an
appeallate decree of the Subordinate Judge ip Suit
No. 62 of 1948 .
Baldev
Sahay
(T. K. Prasad, with him) for the
appellant.
N. C. Chatterjee (H. f. Umrigar, with him) for the
respondent.
1951. February 2.
The
judgment of
the Court
was delivered by
FAZL Au J.-This is an appeal from
a judgment
and decree of the High Court of Judicature at Patna
reversing the appellate decree of a Subordinate
Judge
in a suit instituted by the respondents. The facts of
the case are briefly these. The respondents have been
in oceupation as a monthly tenant of several blocks of
premises belonging to the api)cllants at a monthly
rental of Rs. 112. The tent for the months of March,
ApriJ and May, 1942, having £alien into arrears, they
remitted it along with the rent for
June, on 28th
June, 1947, by means of two cheques. As the aJ?Pellants did not accept the cheques, on 4th August, 1947,
the respondents
remitted the amount subsequently by
postal money order. On 12th August, 1947, the appellants, maintaining that there was non-payment of rent
and hence the respondents were liable
to be evicted,
under section 11 ( 1) (a) of the Bihar Buildings (Lease,
Rent and Eviction) Control Act, 1947
(Bihar Act III
of 1947), applied to the House Controller for the· eviction of the respondents from the prqniscs.
Section 11
(l)(a) of the Act run& as follows :----.
''Notwithstanding
anything
contained
in
any
agreement or law to the contrary and subject to the
provisions of section 12, where a tenant is in possession Qf any building, he shall not
be
liable to be
evicted therefrom, whether in execution of .a decree or
otherwise, except-
}
S.C.R.
SUPREME COURT REPORTS
147
(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 landlod, or if he
is an employee of the landlord occupying the building
.as an employee, on his ceasing to be in such employment;"
On 30th August,
1947,
the.
respondents,
whose
money
had
in the
meantime
been returned
by
the, appellants, deposited the rent up to the month of
June in the Office of the House Controller. Notwith-
·standing this deposit, the House Controller passed an
<>rder on the 10th November, directing the eviction of
the respondents by 10th May, 1948, and holding that
they had made themselves liable to eviction by reason
of non-payment of rent. The order of the House Controller was upheld by the Commissioner on appeal on
the 27th April, 1948, and thereupon
the
respondents
filed the present suit in the Patna Munsif's Court for
a declaration that the order of
the
Controller dated
the

## Text

S.C.R.
SUPREME COURT REPORTS
145
acquiesced, during all these years in the construction
which the Patna High Court has been placing upon the
section from the very next year after the enactment
of the statute.
Having regard to the great obscurity
in the language employed in the relevant provisions
and the inaction of
the
Legislature, it is,
in
our
opinion, legitimate to infer that the view expressed by
the Patna High Court is in accord with the intention
of the Legislature.
The appeals fail and are dismissed with
costs,
only
one set in all of them together.
Appeals dismissed
Agent for the appellants: Tarachand Brij Mohanlal.
Agent for the respondent : R. C. Prasad.
RAI BRIJ RAJ KRISHNA AND ANOTHER
v.
S. K. SHAW AND BROTHERS.
(SAIYID FAZL ALI, MEHER CHAND MAHAJAN,
MuKHERJEA and CHANDRASEKHARA ArYAR JJ.J
Bihar Buildings (J..rau-, Rent and Eviction) Co11:trol Act (Ill
of 1947), s., 11-0rder of Controller for eviction on the ground of
non-payment of rent- Suit to set aside order-Jurisdiction of civil
cour:-Q11estion rtihc:her
there
was
non-payment-Finai1ty
of
Controller' 1 tleeision.
Section 11 of the Bihar Buildings (Lease, Rent and Eviction)
Control Act, 1947, has entrusted the Controller with a jurisdiction, which includes the jurisdiction to determine whether there
is non-payment of rent or not, as
well as the jurisdiction, on
finding that there is nor.-payment of rent, to order eviction of a
tenant. Therefore, even if a Controller has wrongly decided the
question whether there has been non-payment of rent, his order
for eviction on the ·ground that there has been non-payment of
rent cannot be questioned in a civil court.
Queen v. Comm_iuroners for Special Purposes of Income·To1t
(21 Q.B,D. 313) and Colonial Bank of Australasia v.
W1'llah (L.R.
S P.C. 417) relied on.
1951
Ramananitan Prasal
Narayan Singh
V•
Mahanth Kapildeo
RamJeeaud
Another
Chandrasekhara.
Aiyar J.
i95I
Feb. 2.
RaiBrij Baj
Kris/1110 aRd
Anothtr
...
.S. K. Shaw
.and Broth111.
146
SUPREME COURT REPORTS
[1951]
CIVIL
APPELLATE
)UR1so1cnoN:
Appeal from
a
judgment and decree of the Patna High Court dated
25th March, 1949, in A.S. 2280 of 1948 reversing an
appeallate decree of the Subordinate Judge ip Suit
No. 62 of 1948 .
Baldev
Sahay
(T. K. Prasad, with him) for the
appellant.
N. C. Chatterjee (H. f. Umrigar, with him) for the
respondent.
1951. February 2.
The
judgment of
the Court
was delivered by
FAZL Au J.-This is an appeal from
a judgment
and decree of the High Court of Judicature at Patna
reversing the appellate decree of a Subordinate
Judge
in a suit instituted by the respondents. The facts of
the case are briefly these. The respondents have been
in oceupation as a monthly tenant of several blocks of
premises belonging to the api)cllants at a monthly
rental of Rs. 112. The tent for the months of March,
ApriJ and May, 1942, having £alien into arrears, they
remitted it along with the rent for
June, on 28th
June, 1947, by means of two cheques. As the aJ?Pellants did not accept the cheques, on 4th August, 1947,
the respondents
remitted the amount subsequently by
postal money order. On 12th August, 1947, the appellants, maintaining that there was non-payment of rent
and hence the respondents were liable
to be evicted,
under section 11 ( 1) (a) of the Bihar Buildings (Lease,
Rent and Eviction) Control Act, 1947
(Bihar Act III
of 1947), applied to the House Controller for the· eviction of the respondents from the prqniscs.
Section 11
(l)(a) of the Act run& as follows :----.
''Notwithstanding
anything
contained
in
any
agreement or law to the contrary and subject to the
provisions of section 12, where a tenant is in possession Qf any building, he shall not
be
liable to be
evicted therefrom, whether in execution of .a decree or
otherwise, except-
}
S.C.R.
SUPREME COURT REPORTS
147
(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 landlod, or if he
is an employee of the landlord occupying the building
.as an employee, on his ceasing to be in such employment;"
On 30th August,
1947,
the.
respondents,
whose
money
had
in the
meantime
been returned
by
the, appellants, deposited the rent up to the month of
June in the Office of the House Controller. Notwith-
·standing this deposit, the House Controller passed an
<>rder on the 10th November, directing the eviction of
the respondents by 10th May, 1948, and holding that
they had made themselves liable to eviction by reason
of non-payment of rent. The order of the House Controller was upheld by the Commissioner on appeal on
the 27th April, 1948, and thereupon
the
respondents
filed the present suit in the Patna Munsif's Court for
a declaration that the order of
the
Controller dated
the 10th November, 1947, was illegal,
ultra vires and
without jurisdiction.
The suit was dismissed by the
·. Munsif and his decree was upheld on appeal, but the
High Court decre~d the suit holding that the order of
the Rent Controller was without jurisdiction.
The appellants were thereafter granted leave to appeal by the
High Court, and they havi: accordingly preferred
this
appeal.
The High Court 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 respondents
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 _ ihe
other hand, one of the contentions put forward on
behalf of the appellants 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
1951
Rai Brij /lJJj
Erunnaaad
Anothlr
v.
S. K. ShllllJ
and Brotn1ts •
!Faz;l Ali].
1951
Rai Brif Raj
Krishna and
Another
v.
S. Jr. Shaw
and Brothers1
Fad Ali].
148
SUPREME COURT REPORTS
[1951]
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
respondents to pay the
arrears until the 28th
June, 1947.
It appears that at the
inception of the
tenancy, the respondents had paid one month's rent in
advance, and it had been agreed between them and
the appellants that the advance rent would be adjusted
whenever there was default in payment of rent for full
one
month. It was however p_ointed 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 for 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 section 11 (1)
(a) of the Act. The appellants also raised
a second
contention, namely, that having regard to the
scheme
of the Act, the House Controller was
fully competent
to deciae 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 courts,
and the first appellate court dealing with it observed
as follows :-
"But the Buildings Countrol Act has
authorised the
Controller to decide whether or not
there
is
nonpayment of rent and it is only when he is satisfied that
there has been non-payment of rent that he assumes
jurisdiction. If the question of
jurisdiction depends
upon the decision of some fact or point of law, and if
the court is called upon to decide such question, then
such decision cannot be collaterally impeached ( vide 12
Patna 117). 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 Court can have no
jurisdiction to challenge the validity of such order."
The High Court did not however accepted this view
and after refering to section 111 of the T ra:nsfer of
S.C.R.
SUPREME COURT REPORTS
149
Property Act, proceeded to propound its
own view in
these words :-
"Regard being had to the circumstances in which
the Act under consideration was enacted and its object,
as
stated in the preamble as
being 'to prevent
unreasonable eviction
of
tenants' from
buildings,
it
would seem that the expression 'non-payment of
rent
in section 11 in the context in which it is used must
be given an interpretation which would have the effect
of enlarging the protection against determination of a
tenancy enjoyed by a tenant under the ordinary law.
The Legislature, therefore, by enacting that
a
tenant
shall not be liable
to
be
evicted
'except for nonpayment of rent' should be held
to
have intended to
protect a tenant from being evicted from a building in
his possession for being a defaulter in payment of rent,
if he brings into Court all
the rent due
from him
before the order of his eviction comes to be passed ..... .
If, as contended for on behalf of
the
respondents,
section 11 of the Act were to be construed as entitling
a landlord to apply for eviction of a tenant
on the
ground of irregular payment
of
rent
amounting to
'non-payment' of rent and as
empowering
the
Controller to determine as to whether
irregular
payment
of rent amounts to non-payment
of
rent
within the
meaning of sub-section (1) of section 11, and
subsection (3) of section 18 were to be construed as
making the decision of the Controller on
thi~ question
of law a final one, it will appear that not only this Act
will have conferred a right upon the landlord very
much in excess of the right that he enjoys under the
ordinary law in the matter of determination of tenancies, but that it will have conferred very
much larger
power on the Controller than that possessed by the
Civil Courts under the ordinary law in the matter of
passing decrees for eviction of tenants.
The principle
of law and equity on which relief against forfeiture for
'non-payment of rent' is based, will have been completely abrogated, and the protection of a tenant in
· possession of a building instead of being enlarged will
!95!
RaiBrij Raj
Krishna and
Another
v.
S. K. Shaw
and Brothers.
Fa:r.1 Ali].
195!
RaiBrijRoj
Krishna alCd
.Another
v.
S. Jr.Shau!
and Brother1.
Fad Ali].
150
SUPREME COURT REPORTS
[1951]
have been very much cunailcd.
A
construction
of
these provisions, which is calcul_ated
to . bring about
these consequences,· cannot and is not in accordance
with the circumstances to which this Act was intended
to apply and indeed cannot be accepted. The contention of Mr. Lalnarain Sinha on behalf of the respondent that the circumstances disclosed in the petition
raised the question for determination by the Controller
whether a case of non-payment of rent
in law was
established, and his decision of that question, even if
wrong in law, is not liable to be questioned in the
Civil Court must be over-ruled."
It seems to us that the view taken by the High
Court is not correct. Section 11 begins with the words
"Notwithstanding anything contained
in
any agreement or law to be contrary," and hence
any attempt
to import the provisions relating to the law of transfer
of property for the interpretation of the section would
seem to be out of place. Section 11 is a self-contained
section, and it is wholly unnecessary
to go outsiae the
Act for determining whether a tenant is liable to be
evicted or not, and under what conditions he can be
evicted. It clearly provides that a tenant is not liable
to be
evicted except on certain conditions, and one of
the conditions laid down for the eviction of a month
to month tenant is non-payment of rent.
Sub-section
(3) (b) of section 11 provides
that
the
"Controller
shall, if he is satisfied that the claim of the landlord
is bona fide, make an order directing the tenant to
put the landlord in possession of the building" and if
he is not so satisfied he shall make an order rejecting
the application. Section 16 empowers the Controller
to make enquiries and inspections and to summon and
enforce the attendance of witnesses and compel the
production of documents in the same manner as is
provided in the Code of Civil Procedure. Section 18
provides that any person aggrieved by an order passed
by the Controller may within 15 days of the receipt of
such order by him, prefer an appeal to the Commissioner of
the
Division,
and it
also prescribes the
procedure for the hearing of the appeal. Sub-section (3)
S.C.R
SUPREME COURT REPORTS
151
of this section st;ltes that "the decision of the Commissioner and subject only to such decision, an order
of the Controller shall be final, and shall not be liable
to be questioned in any Court of law whether in a suit
or other proceeding by way of appeal
or revision."
The Act thus sets. up a complete machinery for ~
investigation of those matters upon
which the
jurisdiction of the Controller to order eviction of a tenant
depends, and it expressly makes his
order
final and
subjec~ only to the decision of
the Commissioner. The
Act empowers the Controller alone to decide whether
or not there is non-payment of rent, and his decision
on that question is essential before an order can be
passed by him under section 11.
Such being the provisions of the Act, we have to see whether it is at all
possible to question the decision of the Controller on a
matter which the Act clearly empowers him to decide.
The law on. this subject has been very lucidly stated
by Lord Esher M._ R. in The Queen v. Commissioners
·for Special Purposes of the lncome-Tax(1),
in these
words:-
"When an inferior court or tribunal or body, which
has to exercise the power of deciding facts, is first
established by Act of Parliament, the
legislature
has
to consider
what powers it will give that tribunal or
body. It may in effect say that, if a certain state of
facts exists and is shown to such tribunal
or
body
before it proceeds to do certain things, it shall have
jurisdiction to
do such things, but not otherwise.
There it is not for them conclusively to decide whether
that state of facts exists, and if they
exercise
the
jurisdiction without its existence, what they do
may
be questioned, and it will be held that they have acted
without jurisdiction.
But there
is
another state
of
things which may exist.
The legislature may intrust
the tribunal or body with a jurisdiction, which includes
the jurisdiction to determine whether the preliminary
state of facts exists as well as the jurisdiction, on
finding that it does exist, to proceed further or do
(I) 21Q.B.D.313,at319.
20
1951
RaiBrjj Raj
Krishna on4
.4.Nothlr
v.
S.K.S/uzaJ
ant! Brotlu,s.
Fa1:l .4.li].
!95!
.Roi Brij Raj
Krishna and
.dnothu
v.
S.K.S/i4W
,and Brotlurs.
FazlAliJ.
152
SUPREME COURT REPORTS
[1951]
something more. When the legislature are establishing
such a tribunal or body with limited jurisdiction, they
also have to consider, whatever jurisdiction they give
them, whether there shall be any appeal from their
decision, for otherwise there will be none.
In
the
second of the two ·cases I have mentioned it is an
erroneous application of the formula to say that the
tribunal cannot give themselves jurisdiction by wrongly
deciding certain facts to exist, because the
legislature
gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which
the further exercise
of their jurisdiction depends ; and
if they were given jurisdiction so to decide, without
any appeal being given, there is no appeal from such
exercise of their jurisdiction."
On the same lines are the following observations of
Sir James Colville in The Colonial Bank of Australasia
v. Willan(1), which is a case dealing with
the
principles on which a writ of certiorari may be issued :-
"Accordingly, the authorities .... establish
that
an
adjudication by a
Judge having jurisdiction over the
subject-matter is, if no defect appears on the face of
it, to be taken as conl:!usive of the facts stated therein ;
and that the Court of Queen's Bench will not on certiorari quash such an adjudication on the ground that
any such fact, however essential, has been erroneously
found."
There can be no doubt that the present case falls
within the second category mentioned by Lord Esher,
because here the Act has entrusted the Controller with
a jurisdiction, which includes the jurisdiction to determine whether there is non-payment of rent or not, as
well as the jurisdiction, on finding that there is nonpayment of rent, to order eviction of a tenant. Therefore, even if the Controller may be assumed to have
wrongly decided the question of non-payment of rent,
which by no means is clear, his order cannot be
questioned in a civil court.
It seems
to us that on
this short ground this appeal must succeed, and we
(!)SP. C. 417, at P· 443.
S.C.R.
SUPREME COURT REPORTS
153
accordingly allow the appeal, set aside the judgment
and decree of the High Court and restore the decree of
the courts ·below. The appellants will be entitled to
costs throughout.
Appeal allowed.
Agent for the appellant : R. C. Prasad.
Agent for the respondent : S. P. Varma.
BADRI NARAIN JHA AND OTHERS
"·
RAMESHWAR DAYAL SINGH AND OTHERS.
rsAIYID FAZL Au, MEHAR CHAND MAHAJAN,
MuKHERJEA and CHANDRASEKHARA A1YAR JJ.]
Landlord and tenant-Merger-One of several ioint holders
of mokarrari interest acquiring portion of lakhra; interest-No
· merger-Partition amongst lessees
inter sc--lntegrity of lease,
qua lessor, not affected.
If a lessor purchases the whole of the lessee's interest, the
lease is extinguished by merger, but there can be no merger or
extinction where one of several joint holders of the mokarrari
interest purchases portion of the lakhraj interest.
A partition inter se amongst several mokarraridars does not
in any way affect the integrity of the tenancy or make each
holder of an interest in it a separate holder of a different tenancy,
and
notwithstanding
such partition
the mokarraridars remain
liable qua the lessor or the payment of the whole rent as one
tenant.
White v. Tyndall (13 App. Cas. 263) referred to.
CIVIL
APPELLATE
JuRismcnoN : Appeal from
a
judgment and decree of the High Court of Judicature
at Patna dated 14th February, 1946, in Appeal from
Original Decree No. 117 of 1942 arising out of Title
Suit No. 9 -0f 1939 : Civil Appeal No. 40 of 1950.
S. C. Misra for the appellant.
N. C. Chatterjee (P. B. Gangoli, with him) for the
respondent.
1951
Rai Brij Raj
Krishna and
Another
v.
S.K. Shaw'
and BrolhlTs.
19~1
Feb. 5.