P L D 1960 Dacca 755 (PLP)

The trial Court decreed the suit but disallowed the plaintiff's claim for arrears of rent, compensation and mesne profits holding that the defendant was technically a defaulter within the meaning of section 17 (5) of the East Bengal Premises Rent Control Act, 1953. On appeal, however, the learned Subordinate Judge took the view that as the defendant was all along ready and willing to pay the rent, he was not a defaulter. Hence the decree of the trial Court was set aside and the plaintiff's suit was dis missed. The Cross‑Appeal filed by the plaintiff in respect of the arrears of rent was also dismissed as the plaintiff had with drawn the rents, deposited with the Rent Controller, after the institution of the suit. On second appeal to this Court, our learned brother Asir, J. upheld the decision of the Court below and dismissed the appeal with costs but granted leave under Clause 15 of the Letters Patent to the plaintiff‑appellant. The main question of law that was argued before our learned brother and has now been argued before us is that the Civil Court should have accepted as conclusive the finding of the Rent Controller, arrived at in the proceedings for permission to sue for ejectment, that the defendant was a defaulter and should not have gone into the question over again. Our learned brother, Asir, J., has after considering the relevant provisions of the East Bengal Premises Rent Control, Act, 1953, come to the conclusion that "the Civil Court before granting a decree for ejectment has to be satisfied as to whether the tenant concerned has paid rent due by him in respect of such premises to the full extent allowable by the Act within the time fixed in the contract as provided in the Act itself, just as a Civil Court has to be satisfied as 'to the question of requirement for bona fide use and occupation." In support of this view reliance has also been placed on two decisions of this Court in the cases of Satish Chandra Pal v. Mst. Mazidan Begam reported in (P L D 1958 Dacca 541) and Hamidunnessa Bibi v. Faizur Rahman and others reported in (P L D 1958 Dacca 547). Both these cases dealt with the question as to whether the Rent Controller's decision about the bona fide requirement of the premises is final. In the first case Chowdhury, J., as he then, was took the view that the Civil Court can in spite of the permission granted by the Rent Controller, refuse the decree for ejectment. In the second case also Nandi, J., took the same view and held that the Civil Court is not absolved of the duty of investigating into the bona fide requirement of the landlord. Since then a Division Bench of this Court has also in the case of Kazi Altaf Hussain v. The House Rent Controller and others, reported in (P L D 1960 Dacca 400) pointed out that "the decision of the Rent Controller as to the bona fide requirement of the house will not preclude the alleged tenant to agitate the said question during hearing of the suit in ejectment. The Rent Controller's decision merely removes the bar to the entertain ment of the suit." It, has, however, been argued before us that whatever might be the case, where the question of bona fide require ment is involved, so far as default is concerned, the provisions of the East Bengal Premises Rent Control Act, 1953 appear to to make a distinction, for, under section 19 (2) of the said Act, the Rent Controller is required to be satisfied as to the non‑compliance with the provisions of the Act with regard to the payment or deposit of rent by the tenant before granting the permission to sue and since the scheme of the said Act is that the decisions of the Rent Controller are only subject to appeal on review by the District Judge in accordance with the provisions contained in the Act itself, there can be no question of that finality being disturbed by some other Court or Tribunal outside the scheme of the statute. We are unable to accept this contention. We see no difference in principle between the provisions contained in section 18 and those in section 19 of the said East Bengal Premises Rent Control Act, 1953. Under section 18 also the permission of the Rent Controller is a condition precedent to the institution of the suit. The Rent Controller is equally required to be satisfied with regard to the existence of any of the grounds specified in Clauses (b) and (e) of the proviso to section 17 (1) of the said Act. Clause (e) is the Clause which deals with the bona fide requirement of the landlord. These provisions, therefore, make it equally incumbent upon the Rent Controller to decide whether the requirement of the landlord is really a bona fide one or for the purposes mentioned in the said clause. The finality given by the provisions of the East Bengal Premises Rent Control Act, subject to the right of appeal or review by the District Judge, attaches with equal force to that decision also. Nevertheless, not only this Court but also the Courts in India, when dealing with similar provisions, have held that notwithstanding the decision of the Rent Controller the matter has to be re‑investigated into by the Civil Court when the suit comes up for hearing there. This conclusion also appears to be supported by the language of section 17 (1) of the Act itself which provides that no order or decree for the recovery of possession of any premises shall be made as long as the tenant pays rent to the full extent allowable by this Act and performs the condi tions of the tenancy." The order or decree for possession is not made by the Rent Controller but is made by the Civil Court and it is the Civil Court which has to pass the order of decree, then before doing so it has also to be satisfied in accordance with these provisions that the tenant has not paid rent to the full extent allowable by this Act or performed the conditions of the tenancy. The scheme of the Act appears to be to add a further impediment in the way of the landlord coming to Court and asking for a decree for the recovery of possession and this impediment is the obtaining of the prior permission of the Rent Controller. The rent Controller is not vested with the jurisdiction to pass the decree for eviction itself but what he, is required to do is to be satisfied that a prima facie case exists for the granting of the permission to sue and nothing more. The use of the words "as along as" in section 1.7 (1) of the said Act, in our view, further confirm our reading of these provisions. These words seems to indicate that the point of time at which it has to be decided whether the tenant has paid the rents allowable under the Act to the full extent or not is the point of time at which the order or decree for evic tion is to be made and this must inevitably be much later then the permission for the filing of the suit granted by the Rent Controller. This duty, therefore, could not possibly have been cast on the Rent Controller nor could the legislature have intended that the decision of the Rent Controller should be final and conclusive even in the Civil Court which, under the scheme of Rent Control Act, still remains the only Court competent to pass the decree for recovery of possession. Indeed, had it really been the intention of the legislature to give to the decision of the Rent Controller the finally sug gested by the learned Advocate appearing in support of this appeal, it appears to us that it would be entirely redundant to prolong the proceedings further by requiring that the land lord should still file a suit for recovery of possession in the Civil Court. The legislature could well have given the power to the Rent Controller himself to pass the order of eviction. For these reasons, we are in agreement with the view taken by our learned brother Asir, J., and dismiss this appeal with costs. SATTAR, J.‑I agree. K. B.A. Appeal dismissed.