Patna High Court
Hakim Syed Shah Khurshed Ali vs Commr. Of Tirhut Division And Anr. on 13 December, 1954
Equivalent citations: AIR1955PAT198, 1955(3)BLJR47, AIR 1955 PATNA 198
JUDGMENT Ramaswami, J.
1. In this case the petitioner, Hakim Syed Shah Khurshed All, has moved the High Court under Articles 226 and 227 of the Constitution for quashing the order of the Commissioner of Tirhut Division dated 27-2-1953 refusing to evict the opposite party under the provisions of Section 11, Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947.
2. The case of the petitioner is that there was a building located on plot No. 3816 and part of plot No. 3817 of Khata No. 285 in the town of Siwan. The petitioner had purchased the land and the building from one Raghunath Prasad by a registered sale deed dated 1-5-1948. Subsequently the petitioner had leased the land and the building to Ameer Mian, opposite party No. 2, on payment of a monthly rental of Re. 1/4/-. As the rent was not paid the petitioner instituted a suit in the Court of the Munsif of Siwan for eviction of Ameer Mian from the land and the building. The suit was decreed by the Munsif on 5-8-1949 in favour of the petitioner. An appeal was taken to the Subordinate Judge by Ameer Mian and on 19-1-1951 the Subordinate Judge allowed the appeal holding that Section 11, Bihar Act, was a bar.
It should be stated in this context that Ameer Mian had argued before the Subordinate Judge that the suit was not maintainable because under Section 11 of the Bihar Act the House Controller had exclusive jurisdiction to evict tenants from buildings. This plea of Ameer Mian was successful and the Subordinate Judge acting upon that plea allowed his appeal and dismissed the suit holding that Section 11 was a bar.
Thereafter the petitioner applied before the House Controller for evicting Ameer Mian. The grounds, taken by the petitioner was that there was non-payment of rent and that the petitioner required possession of the house as a matter of personal necessity. The House Controller found that these conditions were established and ordered that opposite party No. 2 should be evicted. An appeal was preferred before the Collector on behalf of opposite party no. 2 but the appeal was dismissed by the Collector and the order of the House Controller was affirmed. Opposite party No, 2 then moved the Commissioner of Tirhut Division in revision. On 27-2-1953 the Commissioner allowed the revisional application and dismissed the application of the petitioner for evicting the tenant.
The basis of the order of the Commissioner was that the lease granted to opposite party No. 2 was lease of the land and not of the building in which opposite party No. 2 was residing.
3. In suport of this application Mr. B. C. Ghosh put forward trie submission that opposite party No. 2 is estopped from making out an inconsistent plea in the proceeding under the Bihar Buildings (Lease, Rent and Eviction) Control Act. Counsel pointed out that the plea of opposite party No. 2 in. the Civil Court was that Section 11 of the Bihar Act was applicable and the House Controller had no jurisdiction to decide the matter of eviction of the tenant from the premises and land in question. Opposite party No. 2 had succeeded in the Civil Court on this plea and the argument of Mr. B, C. Ghosh is that having suc-ceeded in the Civil Court on such a plea it was not open to opposite party No. 2 to raise a different and quite an inconsistent plea, before the House Controller.
In my opinion the argument of the learned counsel must be accepted as correct. As a matter of principle a party denying the jurisdiction of a particular tribunal and succeeding in that plea cannot deny the truth of that plea in subsequent proceedings before another tribunal. That, is a matter of principle and there are authorities of different High Courts which support this view (see, for instance, -- 'Mahadeo Singh v. Pudai Singh', AIR 1931 Oudh 123 (A); -- 'Bhagirathi Dass v. Baleshwar Bagarti', AIR 1914 Cal 143 (B); and, 'Umeshananda Dut v. Mohendra Prasad', 11 Ind Cas 280 (Cal) (C). If that is the correct legal position it is manifest that the Commissioner of Tirhut Division ought not to have permitted the tenant to iaise the plea that the House Controller had no jurisdiction.
The effect of this legal error is that the Commissioner of Tirhut Division has declined to exercise the jurisdiction vpsted in him under the Bihar Buildings (Lease, Rent and Eviction) Control Act Of 1947.
4. I think that the more appropriate article to be applied in this case is Article 227 of the Constitution and not Article 226. As I have already said the Commissioner of Tirhut Division has refused to exercise the jurisdiction vested in him by the statute because he wrongly entertained a plea of the tenant which he ought not to have entertained. Exercising, therefore, the authority conferred by Article 227 of the Constitution I would set aside the order of-the Commissioner dated 7-2-1953 and direct that the Commissioner of Tirhut Division should dispose of the revisional application afresh after giving a hearing to the parties in accordance with law.
5. I would accordingly allow the application with costs; hearing fee Rs. 50.
Misra, J.
6. I agree.