JUDGMENT
B.N. Agrawal, J.
1. This appeal by the plaintiff arises out of judgment of affirmance passed in an appeal which was taken against judgment and decree passed in a suit for eviction and arrear of rent.
2. The case of the plaintiff, in short, is that the tenant was a defaulter as he failed to pay the rental from July, 1976 till before the filing of the suit which was failed in the year 1979. The further ground for eviction was subletting and personal necessity.
3. The case of the defendant, in short, is that he was not a defaulter as he had remitted the rent from July, 1976 till April, 1977 as the landlord refused to accept the rent. Thereafter in House Central Case No. 44 of 1976-77 under the order of the House Controller, dated 9-5-1977 passed Under Section 13 (2) of the Bihar Buildings (Lease, Rent and Eviction) Control Act 1947 (hereinafter referred to as ‘the Act’) the defendant has been making deposit in Treasury within the statutory period and deposited the rent till April, 1979. Thereafter he has been again in remitting the rental by postal money order to the landlord which was being refused by him. The defendant denied the other two grounds, namely, subletting and personal necessity.
4. The trial court after considering the oral and documentary evidence adduced on behalf of the parties dismissed the suit. So far the ground of subletting is concerned, the said ground was not pressed in that court, but so far as the ground of personal necessity is concerned, the trial Court decided the same against the plaintiff. The ground of default was also decided against the plaintiff by the trial Court after recording a finding that there was a bona fide dispute between the landlord as required Under Section 13 (2) of the Act, as such the deposite made pursuant to the order of the House Controller was valid in law.
5. Against the judgment and decree of the trial Court the plaintiff preferred an appeal which was dismissed by lower appellate Court and the judgment and decree passed by the trial Court were affirmed. While recording the finding on the question of default the lower appellate Court has held that there was no bona fide dispute as to the person who is entitled to receive the rent. As such the order of the House Controller Under Section 13 (2) of the Act was invalid in law but even after recording that finding it has affirmed the finding of the trial Court on the question of default on the ground that the deposit was made in the treasury by the defendant due to the mistake of the House Controller in passing the order for making the deposit Under Section 13 (2) of the Act.
6. Thereafter the plaintiff has preferred this appeal in which at the time of admission the following substantial question of law was framed:
Whether in the facts and circumstances of this case, the defendant will be deemed to be a defaulter within the meaning of the Bihar Buildings (Lease, Rent and Eviction) Control Act ?
7. Sri Sankat Haran Singh, learned Counsel appearing on behalf of the appellant in support of the appeal contended that in the eye of law the defendant was a defaulter and he was entitled to a decree for eviction on the ground that the deposit of rental in the treasury from May 1977, till April, 1979 was invalid in law even according to the finding of the court of appeal below. In support of his contention, learned Counsel has placed reliance upon a judgment of the Supremo Court in the Case of Sadanand Dass v. Md. Hussaln 1986 P.L.J.R. 45 S.C, in which the matter had gone to the Supreme Court from this Court. I called for the file of the connected second appeal from the office of the Court on perusal of which it transpires that on refusal by the landlord to accept the rental the tenant deposited the same for the months of June to August, 1965 in treasury on 11-9-1965. This shows that the defendant became defaulter for June and July, 1965 as the rental for those months which was required to be paid by 31st August, 1965 was deposited after the expiry of the said period on 11-9-1965. In that case on 9-8-1953 according to Section 13(1) of the Act as it then stood the House Controller passed an order permitting the tenant to deposit the rental in treasury as the landlord refused to accept the rent. Thereafter Section 13 (1) of the Act was amended with effect from 16th August, 1955 where it was laid down that when the landlord refuses to accept the rent the tenant may remit such rent and continue to remit any subsequent rent by postal money order to the landlord. It appears that even after 16-8-1955 the tenant continued to deposit the rental in treasury. No order Under Section 13 (2) of the Act was obtained for making the deposit in treasury on the ground that there was any bona fide dispute as to the person who is entitled to receive the rent. The deposit of rental in that case in treasury for the months of June to August, 1965 was per se invalid as there was no order obtained Under Section 13 (2) of the Act from the House Controller. In those circumstances, it was held that the deposit in treasury was invalid and the tenant was a defaulter.
8. The aforesaid case of the Supreme Court has no application to the facts of the case in hand as in this case the rental was deposited after containing an order Under Section 13 (2) of the Act which order was passed in presence of the landlord. The order of the House Controller, dated 9-5-1977 (Ext. H) shows that in a proceeding for fixation of fair rent on an application being made by the tenant, he was permitted to deposit the rental in treasury from the month of May, 1977. Thereafter by an order, dated 27-3-1979 (Ext. H/l) the House Controller disposed of the main proceeding for fixation of fair rent from which it would appear that the order, dated 9-5-1977 referred to above was passed on an application Under Section 13 (2) of the Act.
9. The order of the House Controller passed Under Section 13 (2) of the Act was appealable Under Section 18 and revisable Under Section 18-B of the Act. Sub-section (3) of Section 18 which is quoted below lays down that the order of the House Controller subject to the appellate and revisional order shall be final and it shall not be open to any party to challenge the same in a suit:
18…..
(3) Subject to the provisions of Section 18-B, the decision of the appellate authority and subject only to such decision where an appeal lies 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.
Upon a reading of the aforesaid provision it becomes clear that the order of the House Controller, dated 9-5-1977 which was passed Under Section 13 (2) of the Act was final as no appeal or revision had been taken against the same and it was not open to the Landlord in the present suit for eviction to challenge the correctness thereof.
10. learned Counsel for the appellant contended that the order of the House Controller, dated 9-5-1977 was wholly without jurisdiction as the same was passed without giving any opportunity of hearing to the landlord. I find from the order (Ext. 14) that prior to the passing of the order, dated 9-5-1977 the House Controller had issued notice to the landlord who pursuant thereto did appear in the proceeding and made a prayer for time which was rejected and thereafter only the order Under Section 13(?.) of the Act was passed on that day. Thus, the order of the House Controller, dated 9-5-1977 cannot be treated to be an order wholly without jurisdiction. It is true that if the order is wholly without jurisdiction in spite of the bar Under Section 21 (3) of the Act the jurisdiction of the Civil, Court is attracted Under Section 9 of the Code of Civil Procedure and even in a collateral proceeding a court could record a finding that the order is wholly without jurisdiction. Since the order of the House Controller was passed after giving notice to the respondent, the same cannot be said to be wholly without jurisdiction. Even if it is assumed that the bar imposed Under Section 18 (3) does not apply to such an order, the correctness of the same cannot be challenged collaterally in the present suit for eviction and the only remedy to the landlord was to file a suit for declaration that the House Controller, dated 9-5-1977 was invalid in law and in the case in hand no suit had been filed challenging the correctness of the order of the House Controller. Therefore, in the present suit it was not open to the courts below to go into the merit of the order of the House Controller and consider whether the circumstances did exist for passing the order Under Section 13 (2) of the Act. Therefore, the courts below were not justified in going into the controversy in the present suit. I may make it clear that in this case even if 1 would have laid down that in this suit it is open to the Civil Court to examine the correctness of the order of the House Controller I would have remanded the matter to the court of appeal below for reconsideration as the final court of fact has recorded its finding without considering the material evidence on the question which weighed with the trial Court in deciding the question as to whether there was any bonafide dispute between the landlord and tenant at the time the order Under Section 13 (2) of the Act was passed by the House Controller.
11. This matter can be examined from another angle as well which has been done by the court of appeal below. The order passed by the House Controller Under Section 13 (2) shall be treated to be an order passed by the court as if such orders were decree passed by the court. The court as defined under the Act is the court which is competent to entertain a suit for eviction. It will be useful to quote Section 17 and Section 2 (bb) of the Act which are as follows:
17. Execution of orders of Controller and Commissioner. Every order of the Controller passed under this Act where no appeal against such order bas been preferred Under Section 18, every order of the appellate authority on appeal Under Section 18 and every order of the Commissioner passed in revision Under Section 15-B shall be executed by the Court, as if such order were a decree passed by such court.
2 (bb). ‘Court’ means the Court having jurisdiction under the Code of Civil Procedure, 1908, to entertain a suit by a landlord against a tenant for necessary of a building respect of which a suit or application is filed under this, Act;
12. It appears that on 9-5-1977 an order was passed by the House Controller permitting the tenant to deposit the rental Under Section 13 (2) of the Act beginning from the month of May, 1977 and pursuant to that order the defendant tenant went on depositing the rental regularly every month within the statutory time till April, 1979. In case the House Controller would not have passed the order, dated 9-5-1977 the tenant could have remitted the rental by money order to the landlord. Therefore, the deposit has been made by him by an order of the House Controller which is a court. In case there was any mistake in passing the order Under Section 13(2) of the Act by the House Controller and the party acting thereupon has made the deposit, he cannot be allowed to suffer and held to be a defaulter as it well settled that no party shall suffer because of the mistake of the court. I find that the lower appellate court has rightly placed reliance upon a judgment of the learned Single Judge of this Court in Kishori Lal v. Gopal Tulsyan 1978 S.B.C.J. 168 wherein it was held that no party can be allowed to suffer because of the mistake of that court In the case on the 15th day an application was made for extention of time for making deposit Under Section 11-A of the Act and the said prayer was allowed on the 15th day and the time for making deposit was extended within which time the rental was deposited it was contended that the court had no jurisdiction to extend the time, therefore, the order was wholly jurisdiction and the defence was liable to be struck off and in those circumstances it was held that if the prayer for extension of time could have been refused on the 15th day the tenant could have arranged for money and deposited the same even on the last day, but did not deposit the same in view of the fact that on the last day time was extended, It is well settled that for the mistake of the court a party cannot be allowed to suffer and for this reason as well the defendant cannot be held to be a defaulter.
13. learned Counsel for the appellant has placed reliance upon two Bench decisions of this Court in the case of Rameshwar Modi v. Harihar Bhagat 1963 B.L.J.R. 370 and in the case of R.M. Mazumdar v. C. K. Lal 1963 S.L.J.R. 614, which are in line with the aforesaid judgment of the Supreme Court. In those cases also like the Supreme Court case no order Under Section 13 (2) of the Act was passed and the tenant deposited the rental in treasury as the landlord refused to accept the rental. In those circumstances, it was held that the tenant was a defaulter. Thus, in my view all the three decisions cited by the learned Counsel for the appellant are distinguishable and the law laid down therein does not apply to the facts of the present case. Consequently, I hold that the findings of the courts below that the tenant was not a defaulter are not vitiated in law and the plaintiff is not entitled to a decree for eviction on the ground of default. So far as the findings of the course below on other grounds for eviction are concerned, the same have not been assailed before me. As such, it is not necessary for me to examine the correctness thereof.
14. No other points having been raised, the appeal is dismissed, but in the circumstances of the case there shall be no order as to cost.