P L D 1952 Dacca 194 (PLP)

GUHA, J.‑--This appeal by the defendant arises out of a simple suit in ejectment with respect to the premises in hold ing No. 50, ward No. 4, within the Mymensingh Municipality. This suit filed on the 22nd September, 1943, has been dismissed by the Courts below and hence this second appeal. The material facts are as follows :‑The defendant Jadav Chandra Saha Banik was a monthly tenant under the pro forma defendant Monmohan Saha in respect of holding No. 50 in ward No. 4 of Mymensingh Municipality on 14th December, 1942, the plaintiff purchased the pro forma defendant's interest by a registered Kabala. In early Bhadra, 1350 B. S., i.e., towards the end of August, 1943, the plaintiff served a notice upon the defendant asking him to vacate the premises on the expiry of the month of Bhadra, 1350 B. S., but in spite of service of notice the defendant did not quit and, therefore, the plaintiff instituted the suit seeking eviction mainly on the ground that she requires the premises for her own use and occupation. The defendant contested the suit inter alia that the case was not governed by the Transfer of Property Act as the premises had been held from long before the passing of that Act, that the suit was not maintainable in view of the pro visions in the Bengal Non‑Agricultural (Temporary) Pro visions Act, that the notice to quit was insufficient and was not properly served, that the suit was not properly valued and sufficiently stamped, that the plaintiff did not acquire any title by her purchase and, therefore was not entitled to maintain the suit for eviction and even if the plaintiff was entitled to evict, the defendant was entitled to compensation. When the suit was instituted, the Bengal House Rent Control Order, 1942, was in force and no permission of the Rent Controller was necessary for institution of such a suit : but during the pendency of the suit there was an amendment of the Bengal House Rent Control Order by Order No. 11658‑L. R., dated the 3rd July, 1944, published in the Calcutta Gazette, dated the 6th July, 1944, and provisions similar to those of the Calcutta House Rent Control Order, 1943, were introduced. By that amendment permission of the Rent Controller was made imperative in a case like the present one. The said amendment provided that while any such suit or proceeding by landlord was pending in any Court on the 6th July, 1944, and in which the landlord wanted to evict the tenant on any of the grounds specified in, clause (c) of the proviso to sub‑paragraph (1) of paragraph 10 had been taken as a ground for such eviction no decree or order for the recovery of possession of the house in respect of which such suit or proceeding was pending should be made by such Court unless the landlord had been permitted by the Controller by an order in writing under sub‑paragraph (3) of paragraph IO‑A to institute such suit or proceeding or to prosecute the suit or proceeding so pending and had produced before such Court proof that such permission had been granted. Accordingly on the 31st July, 1944, the plaintiff filed an application (Exh. 20) to the Rent Controller asking for his permission to prosecute the suit. To that application the defendant filed an objection (Exh. 21). The Rent Controller granted the application and accorded permission by his order dated the 15th January, 1945, which ran as follows:‑ "15‑1‑45 S. R. of process not received. Opposite party files a petition praying for time. It seems he did not pay rent to his landlady the petitioner for a very long time, i.e., since the purchase of the house which happened in Agrahayan, 1349 B.S., and hence he is not entitled to get any benefit under the Bengal House Rent Control Order. The petition for time is rejected and permission to sue in the Civil Court is allowed." This order is Exh. 17 (b) in the case. The defendant took an appeal to the District Judge but it was dismissed on the 19th appeal could be taken against that order. Next it is argued that it is not an order of remand under Order 41, Rule 25, Civil Procedure Code, and even if it was. no appeal was provided for in the Code. Therefore the order was one under section 151, Civil Procedure Code, and in that case no appeal lay. Therefore, the order of remand could not be challenged by appeal. So, Mr. Pakrasi argues that reading sections 104 and 105 (1) of the Code of Civil Procedure together, it is permissible to challenge that order in this second appeal, as no appeal provided for in the Code against such an order of remand. Mr. Pakrasi in support of his argument refers to me the decision of Page and Graham JJ. in Jogothari v. Medini Mohan (1927) 31 C W N 887, for the proposition that no appeal lies if such a case. But the preponderance of authorities in the Calcutta High Court and in the Allahabad and Madras High Courts are to this effect that in such a case an appeal lies. But as that question need not be decided in this appeal, I need not cite the various authorities, which are numerous, where it has been held that an appeal lies. Assum ing that an appeal did not lie, the defendant, could have corrected that order by revision but he did not do so whereas he submitted to the order of the learned Additional District judge and contested the suit after remand. It is now well -established that once the party aggrieved by an erroneous order of remand submits to the order, he is precluded from challenging that remand order in an appeal at a subsequent stage. Sree Madhu Sudhan Sen v. Kania Kanta Sen (1905) I L R 32 Cal. 1023 and Sheik Salim v. Hajira Bibi (1927) 1 L R 55 Cal.

506. Apart from this, the order of remand passed by the learned Additional District Judge of Mymensingh on the 15th July, 1947, was not only submitted to by the defendant in the trial Court after remand but he did not raise any objection thereto and went into trial on the new issues sent down for hearing in that Court and the decision of the trial Court was against him on those issues and then he took an appeal to the lower appellate Court and even in that Court he did not make any grievance about the order of remand, where the decision of the trial Court was contested only on three grounds mentioned before. It is for the first time in this Court, the defendant makes a grievance about the afore said remand order. In these circumstances and in view of the principles referred to above, I am of opinion that the first contention of Mr. Pakrasi is without any substance and must be rejected. The second contention of Mr. Pakrasi is that as the application for permission to sue has not been in accordance with instructions contained in paragraphs 4 and 6, which are executive instructions for the guidance of Controllers and appellate authorities under the Bengal House Rent Control Order, so the permission is void and ineffective. The argu ment of Mr. Pakrasi is that the petition for permission is not verified and it has not been properly presented as it has been filed by a Pleader who was appointed by a Wakalatnama duly executed by the petitioners, bearing a Court‑fee of rupee one only. Mr. Pakrasi argues by referring to paragraphs 4 and 6 of executive instructions that all applications should be presented ‑ before the Controller either by the applicant personally or by an agent of the applicant duly authorised in writing in his behalf and the written authority given to an agent to appear is chargeable with stamp duty of Rs. 2 as a power‑of‑attorney under Article 48‑C, Schedule I‑A of the Idian Stamp Act. For determination of this contention of Mr. Pakrasi, I need set out below some of the relevant provisions of the Bengal House Rent Control Order, 1942, as they stood after amendment. "Para 10 (1) No order or decree for the recovery of possession of any house shall be made so long as the tenant pays rent to the full extent allowable by this order and performs the conditions of the tenancy :" "Provided that nothing in this sub‑paragraph shall apply:‑ (c) Where the house is bona fide required by the landlord either for purposes of building or rebuilding, or for his own occupation or for the occupation of any person for whose benefit the house is held, or where the landlord can show any cause which may be deemed satisfactory by the Court." (4) No tenant shall be entitled to the benefit of this paragraph in respect of any house unless he pays the rent due by him in respect of such house to the full extent allowable by this order within the time fixed in the contract, with his landlord or in the absence of any such contract. by the fifteenth day of the month next following date for which the rent is payable and, where, any rent has accrued due before the sixth day of July 1944, also unless he has paid within three months of the said date, all arrears of rent due by him in respect of such house to the full extent allowable by this order." "10‑A (1) No suit or proceeding by a landlord against a tenant in possession of a house for eviction of such tenant thereform in which any of the grounds specified in clause (c) of the proviso to sub‑paragraph (1) of paragraph 10 has been taken as a ground for such eviction shall be entertained by any Court, or where any such suit or proceeding by a landlord is pending in any Court on the sixth day of July 1944, no decree or order for recovery of possession of the house in respect of which such suit or proceeding is pending shall be made by such Court on any of the grounds specified in the said clause (c) unless the landlord has been permitted by the Controller by an order in writing under subpara graph (3) to institute such suit or proceeding so pending, as the case may be, and has produced before such Court proof that such permission has been granted." "(3) A landlord wishing to obtain from the Controller (a) any order referred to in sub‑paragraph (1) permitting him to institute a suit or proceeding against a tenant in possession of a house for evicting such tenant there from or permitting him to prosecute any such suit or proceeding pending in any Court." "Shall apply in writing to the Controller in that behalf, and if on receipt of such application the Controller after giving the tenant in possession of the house an opportunity of showing cause against the application and considering all the circumstances of the case is satisfied‑(i) in the case referred to in clause (a) that there is sufficient cause to hold that any of the grounds specified in clause (a) of the proviso to sub‑paragraph (1) of paragraph 10 which has been taken by the landlord as a ground for eviction of the tenant in the suit or proceeding referred to in the said clause (a) exists", and * * * * *** the Controller shall for reasons to be recorded in writing make the order applied for, and if the Controller is not so satisfied he shall also for reasons to be recorded in writing make an order rejecting the application. In this case the suit was filed on the 22nd September, 1943, when no permission was necessary but by the amended order dated the 3rd July, 1944, it was provided that in a case where the landlord required the house bona fide for his own occupa tion he shall have to obtain permission of the Rent Controller in order to eject the tenant in occupation as provided for in paragraphs 10 and 10‑A of the Bengal House Rent Control Order. The plaintiff landlord, therefore, filed an application (Exh. 20) on the 21st July, 1944, for such permission of the Rent Controller and that permission was granted' to the plaintiff on the 15th January, 1954, and an appeal against that order by the defendant had been dismissed by the learned District judge on the 19th March, 1945. The Bengal House Rent Control Order did not authorise framing of any rules under that order according to which the application shall be made. But certain executive instructions for the guidance of Controllers and appellate authorities appointed under the Bengal House Rent Control Order, 1942, were made and instructions Nos. 1, 4 and 6 relevant for the decision of the question before me are as follows :‑ (1) "The Bengal House Rent Control Order is an instance of executive act, pure and simple. The procedure laid down in the Order, is, therefore, an executive procedure as distinguished from judicial procedure and the Controllers or the appellate authorities appointed under the Order act not as Courts but as executive officers. * * *" (4) "All applications should be presented before the Controllers either by the applicants themselves personally or by agents of the applicants duly authorised in writing in their behalf." (6) "The written authority given to an agent to appear on behalf of an applicant or the other party in accordance with instructions 4 and 5 above or in pursuance of any notice referred to in instruction 5 above, is chargeable with stamp duty of Rs. 2 as a powers‑of‑attorney under article 48 (c) Schedule I‑A of the Indian Stamp Act." No form has been prescribed under the Bengal House Rent Control Order for an application for permission under para graph 10‑A (3). It is provided there that the landlord shall apply in writing to the Controller for permission. In this case the landlady filed an application for permission before the Rent Controller through a Pleader appointing him as her agent by a duly executed Vakalatnama [Exh. F (1)] stamped with a Court‑fee of rupee one. This petition (Exh. 20) does not con tain any verification, Mr. Pakrasi argues that as the applica tion is not verified, there has been no proper presentation of the application for permission and, therefore, the order of the Controller granting permission is without jurisdiction. I must reject that contention because the application is in terms of paragraph 10‑A (3) in writing and that is all that the order provided for and as there is no prescribed form of an applica tion in the Order, it cannot be held that simply as there has been no verification of the application, therefore, there has been no valid presentation. Even if it be assumed that a verification of the application is required, omission to verify could not debar the Rent Controller to entertain the application and even then the ommission of verification was a mere irregu larity and that itself did not oust the jurisdiction of the Rent Controller to entertain the application. Mr. Pakrasi then argues that as the plaintiff: filed the application before the Controller through a Pleader, who acted for her on the authority of a Vakalatnama which was stamped with a Court‑fee of, rupee one, the Rent Controller had no jurisdiction to entertain that application which was improperly presented and so the order for permission to sue was without jurisdiction and a nullity. The argument of Mr. Pakrasi is based on executive instructions Nos. 4 and 6 quoted above. In my opinion there is no substance in this contention of Mr. Pakrasi. The Bengal House Rent Control Order merely prescribes that there shall be an application for permission. It has been made clear by instructions for guidance of Controllers that the procedure laid down in the Order, is an executive procedure as distinguished from judicial procedure. Instructions Nos. 4 and 6 are merely for guidance of the Controllers. In this case it is admitted that the plaintiff filed the application for permission through a Pleader, who acted on the authority of a Vakalatnama stamped with a Court‑fee of rupee one for the plaintiff. There can be no manner of doubt that the Pleader represented the landlady before the Controller as her agent and his authority was derived from the duly executed Vakalatnama instead of a special power‑of‑attorney; but that did not in any way take away the Pleader's authority to represent the plaintiffs before the Rent Controller for which purpose he was specifically engaged. Next it is argued that the power was insufficiently stamped; but how can that debar the Rent Controller from entertaining the application ? The Rent Controller might have impounded the document, if he so desired. It is said that the Rent Con troller should have impounded the document, but merely be cause he has failed to do what was his duty, it cannot be said that he had no right to entertain the application and pass an order thereon and the order that has been passed is a nullity. The Rent Controller retains his jurisdiction in dealing with such an application and what has been done is at best an irre gularity and a defect in procedure, which cannot affect the jurisdiction of the Rent Controller to entertain the application and the order passed on such an application after hearing can not be said to be without jurisdiction and a nullity. Again certain omission in following executive instructions cannot in any way amount to take away the jurisdiction of the Rent Controller in giving permission to sue on such an application. The learned Advocate for the appellant cited in support of his argument Sakina Bibi v. Charujit Singh A I R 1915 Lah. 369 and Mst. Indarwati v. Hari Ram and another A I R 1937 Lah.

318. In the first case, where an application for permission to sue as a pauper was presented under the authority of a power‑of- attorney granted by the plaintiff to two Pleaders and a duly certified Mukhtear ; it was held that as the legal practitioners were not specially authorised for the presentation of such an application, this was not a due presentation within the meaning of Rule 3 of Order 33 of the Code of Civil Procedure because "authorised agent" in Rule 3 of Order 33 must be specially authorised to present the application and must fulfil the other conditions detailed in Rule

3. So, that case is no authority for the proposition sought to be made out by Mr. Pakrasi. The second case simply follows the first one and it is held there that where an agent is authorised by a power‑of‑attorney only to conduct an appeal, such an agent has no power to file an appli cation in forma pauperis on behalf of the appellant. So, the second decision also is of no avail to the appellant before me. Again if it be held that the order of the Rent Controller is a judicial order, it should be held that the order of the Controller is not in contravention of law for it is an elementary rule for construction of judicial orders that wherever practicable, they should be so interpreted as to be consistent with and not in contravention of law. See Brojo v. Tara (1905) 3 C L J 188, and Kartik Chandra v. Hara Govind (1914) 21 C L J 75, p.

78. In this view of the matter the order of the Rent Controller cannot be held to be without jurisdiction and a nullity. So the second contention‑of Mr. Pa krasi fails. The third contention of Mr. Pakrasi is that the permission granted to the plaintiff is a nullity and without jurisdiction, firstly, because no reason has been given, and secondly, the reason, given is not applicable. I shall take up the first branch of the third contention of Mr. Pakrasi, namely, that the permission granted to the plaintiff is without jurisdiction and a nullity; because the Rent Contr6l ler has not recorded any reason as he is required to under clause (3) of paragraph 10‑A of the Bengal House Rent Control Order. The order of the Rent Controller, dated the 15th January, 1945 [Exh. 17 (b)] is as follows:‑"S. R. of process not received. Opposite party files petition praying for time. It seems he did not pay rent to his landlady, the petitioner, for a very long time, i.e. since the purchase of the house which happened in Agrahayan, 1349 B. S., and hence he is not entitled to get any benefit under the Bengal House Rent Control Order. The petition for time is rejected and permission to sue in the Civil Court is allowed." From the petition (Exh. 20) it will appear that the plaintiff applied for permission to sue on the ground that the house was bona fide required for her own occu pation and the application was under clause (3) of paragraph 10‑A of the Bengal House Rent Control Order and under that clause the Controller shall for reasons to be recorded in writing, make the order applied for. It is argued by the learned Advo cate for the appellant that the order does not give reasons, therefore, the order is without jurisdiction and a nullity. I shall have to examine this question rather minutely. There cannot be any question that a decree or order passed without jurisdiction is a nullity. The distinction between a judgment of a Court which has no jurisdiction and a judgment where the Court having jurisdiction acts wrongly in disregard of the law has not always been kept in view and this has resulted in some amount of confusion. The distinction between defect in jurisdiction and error or irregularity in procedure has been pointed out by Hawes on the jurisdiction of Courts in these words :‑"In the former case the whole proceeding is Caram non judice and void; in the latter the proceeding cannot be impugned in a collateral action, even though it be erroneous upon its face, and even though it relates to a fact which in a former stage of the proceeding might have been essential to confer jurisdiction. It is examinable only on a direct proceed ing as, by an appeal or by a proceeding in the nature of an appeal and where there is no remedy of that kind, it concludes for ever". In Hukam Chand's Law of Resjudicata at page 473, the rule is stated as follows:‑"It is only when a Court of general jurisdiction undertakes to grant a judgment in an action or proceeding where it has not jurisdiction of the parties or the subject matter of the action, and it appears from the record by its terms or necessary implication or by absence of something essential, that the judgment will be absolutely void and have no effect. When jurisdiction attaches in the original case everything done within the exercise of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties, and no order which a Court is empowered, under any' circumstances in the course of a proceeding over which it has jurisdiction to make, can be treated as a nullity, merely because it was made improvidently or in a manner not war ranted by law or the previous state of the case". In the case of Malkarjan v. Narhari (1900) L R 27 I A 216, where it was contended that certain execution proceedings were a nullity, where the executing Court had served notice of the proceed ings on the wrong person, and on receiving his protest that he was not the right person decided wrongly that he was the right person and so proceeded with the execution, Lord Hobhouse at page 225 of the report observed : "In so doing the Court was exercising its jurisdiction. It made a sad mistake it is true; but a Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wrong party can only take the course prescribed by law for setting matters right. ; and if that course is not taken the decision, however, wrong, cannot be dis turbed". To the same effect is the decision of Stratchey C. J., in the case of Caston v. Caston (1600) I L R 22 All. 270 F. B. The proposition of law is that if some essential preliminary is required before a Court can entertain a suit or a proceeding and that does not exist, then the judgment or order of the Court is a nullity. See Nusserwanji Pestonji v. Meer Mynoodeen (1855) 6 M I A 134, and Raghnath Das v. Sunder Das (1914) L R 41 I A

251. But where the Court has jurisdiction to entertain and decides the matter erroneously without having regard to the provisions of law, the judgment is not a nullity but must be given due weight and effect, if it be not set aside by appropriate proceedings. See Rewa Mahton v. Ram Kishen (1886) L R 13 I A 106 ; Mungal Purshad v. Girija Kanta (1881) L R 8 I A 123; Malkarjan v. Narhari (1.900) L R 27 I A 216 and Raja of Ramnad v. Velusami (1920) L R 48 I A

45. In the case before me there is no doubt that the Rent Controller had jurisdiction to entertain the application for permission to sue with reference to the subject matter and the parties and it had jurisdiction to pass the order in that case. The law provides that the Court in passing its order must give its reasons. The only question is if in passing the order, the Court disregards the provision of the law in not recording its reasons in writing whether the jurisdiction of the Rent Controller is ousted 7 In my opinion the principle which can be gathered from the auth orities is that such an order may be in appropriate proceedings as erroneous but it cannot be said to have been without juris diction and that such an order is a nullity. Such a view finds support in the decisions of Ashutosh v. Behari (1907) I L R 3 55 Cal. 61 F B ; Haridoynath v. Ramchandra (1920) I L R 48 Cal. 138 F B and Garachand v. Profulla (1925) I L R 53 Cal. 166 , F B. The jurisdiction is the authority and powers to hear and decide a case and does not depend upon the regularity of the exercise of that power or the correctness of' the decision, since the power to decide carries with it the power to decide rightly or wrongly; in other words, the jurisdiction cannot be said to be non‑existent, because it has been irregularly exercised or because there has been a failure to comply with some direction as to the procedure which shall be followed. Failure to comply with a procedure does not deprive the Court of its jurisdiction which it possesses to pass a decree or order; but such a decree or order can be challenged in a proper proceeding but it cannot be impugned collaterally in a subsequent proceedings, and until this is done, it is binding and operative between the parties. It is manifestly clear that if such an order or decree is allowed to be assailed upon such grounds, serious consequences will ,arise and the inevitable result will be to greatly increase litigation, which the Courts have always endeavoured to check. Compare Baijnath v. Jamal Brothers Ltd. (1923) 28 C W N 1029 P C, where it has been held that omission by the registering auth ority when registering a document to note why executant of the document was unable or refused to register, was a defect in procedure not vitiating registration. In this case, therefore, the omission to record reasons did not ipso facto make the order of the Rent Controller void and a nullity. Moreover it cannot be said in this case that the Rent Controller gave no reason whatsoever for granting permission, because the order itself shows that he applied his mind to the case and gave some reasons though it might be that he had not stated specifically that the plaintiff required the house for her own occupation. But since the plaintiff prayed for permission on the ground of her own occupation and the permission was granted, it follows that the Rent Controller granted the permission as he was satisfied that the plaintiff required the premises for her own occupation and the omission to specifically record that reason did not render the permission nugatory and that at worst was an irregularity which did not affect the jurisdiction of the Rent Controller. Moreover it is an elementary rule of construction that a judicial order should be interpreted to be consistent with and not in contravention of law. Kartik v. Har Govind (Supra). I am, therefore, of opinion that there is no substance in the first branch of the third contention of Mr. Pakrasi and it fails. As regards the second branch of the third contention of Mr. Pakrasi that the reason given in the order for permission is not available, because the ground in the order is default in payment of rent. At the time of filing of the suit, no permission was necessary but during the pendency of the suit the Bengal House Rent Control Order was amended and permission was made necessary when landlord wanted Khas possession on the ground of her own requirements, and so the application was filed before the Rent Controller. In the application the plaintiff incidentally mentioned that the defendant was a defaulter but from paragraphs 9, 13 and 14, it would be clear that the plaintiff required the house for her own occupation. Therefore, the question before the Rent Controller was not whether the defendant was in arrears but whether the plaintiff required the house bona fide for her own occupation. I am, therefore, of opinion that since the Rent Controller granted permission to the' plaintiff to sue in the circumstances it must be held that the permission was granted to the plaintiff because she required the premises for her own occupation and the reference in the order that the tenant was in arrears was made incidentally and that the permission was not given on the ground for default of the tenant in paying rent. So the second branch of the third contention of Mr. Pakrasi also fails. Then again the defendant preferred an appeal against the order of the Rent Controller and‑ that appeal was dismissed on the 19th March, 1945. Clause (3) of paragraph 12 of the Bengal House Rent Control Order, 1942, provides that " the decision of the District judge and subject only to such decision, an order of the Controller shall be final". Therefore, it is not open to the defendant to challenge the order of the Rent Controller. In Secretary of State v. Mask Co. (1940) L R 67 I A 222, Lord Thankerton observed in dealing with a case under the Sea Customs Act as follows: " Section 188 provides that every order passed in appeal under this section shall, subject to the power of revision conferred by section 191, final. By sections 188 and 191 a precise and self‑contained code of appeal is pro vided in regard to obligations which are created by the statute itself, and it enables the appeal to be carried to the supreme head of the executive Government. It is difficult to conceive what further challenge of the order was intended to be excluded other than a challenge in the Civil Courts. The determination of this question must, rest on the terms of the particular statute which is under consideration, and decisions on other statutory provisions are not of material assistance, except in so far as general principles of constructions are laid down". Applying the aforesaid general principle, I am clearly of opinion that the provisions in paragraph 12 of the Bengal House Rent Control Order by clear implication, if not expressly, excluded the jurisdiction of the Civil Court to determine the question whether or not the permission granted by the Rent Controller was rightly granted. I, therefore, hold that all the three contentions raised by the defendant‑appellant must be overruled, as they are not tenable and substantial. The result, therefore, is that this appeal fails and is dismis sed with costs. Leave under clause 15 of the Letters Patent is asked for but refused. Civil Rule 612 (5) 1950 has now become infructu ous and is discharged with costs. A.H. Appeal dismissed.