Raj Kishore Prasad, J.

(1) In this case, the petitioner Chiranjilal Poddar, who is the landlord of a building in Muzaffarpur seeks a writ, in the nature of certiorari, under Article 226 of the Constitution to call us and to quash the order of the Commissioner, Tirhut Division, dated the 28th November, 1955, refusing the petitioners application for eviction of the opposite party tenants, under section 11(1) (a) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947).

(2) Opposite party Nos. 1 to 3, who are the tenants, have shown cause against the rule, issued by the High Court on the application of the petitioner, under Articles 226 and ,227 of the Constitution, and have also filed a counter-affidavit in reply to the affidavit of the petitioner.

(3) The opposite party were month to month tenants of the holding belonging to the petitioner on a monthly rental of Rs. 33/-. The opposite party did not pay rent for the period from Asarh, Sambat 2010 up to Sarawan, Sambat 2011, for a period of 14 months, corresponding to the 28th June, 1953, to the 14th August, 1954. The Petitioner therefore, on the 18th August, 1954, applied under section 11(1) (a) the Act before the Controller, Muzaffarpur for eviction of the opposite party, on the ground, inter alia of non-payment of rent. The Controller by an order dated the 24th January, 1955, ordered eviction of the tenants-opposite party on the ground that they had defaulted in payment of rent. An appeal, against the above order by the opposite party to the Collector, was dismissed on the 8th August, 1955, as he agreed that non-payment of rent had been established and, therefore, eviction must follow as a matter of course. A revision was taken to the Commissioner by the tenants, opposite party, and the learned Commissioner by his order dated the 28th August, 1955, set aside the order of the Collector ordering eviction, and disallowed the application of the petitioner for eviction of the opposite party. The Petitioner has moved this court and asked for an appropriate writ against this order of the learned Commissioner.

(4) The only ground on which the order of the learned Commissioner has been attacked by Mr. Nandlal Untwalia, appearing for the petitioner, is that the opposite party, having admitted that they were month to month tenants, and, that they had not paid the rent for the period 28th of June 1953, to the 14th August, 1954, were liable to be evicted under section 11(1) (a) of the Act, and therefore, it was incumbent on the Commissioner to uphold the order of eviction passed by the first two courts; and by disallowing the petitioners application for eviction, he has thereby refused to exercise jurisdiction vested in him by law, and, as such there is a manifest error of law on the face of the proceedings, and, a writ must go to quash the order of the Commissioner.

(5) In order to determine if the Commissioner has committed an error of law, which is apparent on the face of his order, it is necessary to know the case of the parties before the Controller.

(6) The Petitioners case was that at times the opposite party tenants paid rent for four or five months on one date, but, the petitioner every time granted separate receipts for each month with a view to lay stress on the foot note of the receipt forms on which he used to grant receipts. One such receipt is annexure A to the affidavit. In the foot-note, it is mentioned that if the rent of the house was not paid for more than two months, in that event the landlord will have the right to get the house vacated and the tenants will have no objection to the same.

(7) The case of the opposite party however, was that the landlord had been in the habit of taking rent for several months together, and as such there was an "implied agreement or arrangement that the petitioner would accept the rent if, and when, paid by the opposite party, even after expiry of each month. It was, therefore, contended that in view of the arrangement between the parties it was clear that there had been no non-payment of rent within the meaning of Section 11(1) (a) of the Act.

(8) The admitted position is that the arrears of rent were tendered on the 19th August, 1954, the very next day of the filing of the application for eviction by the petitioner and on the refusal of the petitioner, the entire rent, to the extent of Rs. 462/- was deposited with the Controller on the 26tb August, 1954, by a Chalan dated the 19th August, 1954. There is, therefore, at present, admittedly no rent due to the petitioner from the opposite party.

(9) It is now well settled, by the decision at the Supreme Court in Brij Raj Krishna v. S. K. Shaw and Brothers AIR 1951 SC 115 [LQ/SC/1951/7] (A), and by a Division Bench decision of this Court in Bhagwan Das v. Dulari Jaiswal AIR 1955 Pat. 142 [LQ/PatHC/1954/91] (B), that an irregular payment of rent may be tantamount to "non-payment of rent" within the meaning of Section 11 (1) (a) of the Act. The question whether irregular payment of rent amounts to non-payment of rent, or No. within the meaning of Clause (a) of Sub-section (1) of Section 11 of the Act, would, therefore, depend on the facts of each particular case.

(10) The meaning and effect of the words "non-payment of rent" occurring in Clause (a) of Sub-section (1) of Section 11 of the Act can be better learned from the provisions of the Act itself. The words "month to month tenant" have been defined in Section 2 (a) of the Act as meaning a tenant holding a lease of a building from month to month, Or for an unspecified period. We have, therefore, to determine the meaning of the words "non-payment of rent" with reference to the definition of "month to month tenant". The Act does not provide the time of payment. The point of time, from which, under the Act, the right of the landlord to apply for eviction of his tenant is to accrue, is which the arrear of rent becomes due, which would mean the date when there has occurred non-payment of rent". In most cases, no doubt, the point of tune at which rent becomes due is the close of the period in respect of which it is to be paid. But this is not necessarily- always the case. Special contract, either "express or implied may make a rent due at a point of time different from the close of the period in respect of which it is to be paid. What, therefore, should be the time of payment would depend upon the express agreement between the parties, or on an implied agreement as evidenced by the conduct of the parties in course of their dealing, inter se after the inception of the tenancy.

(11) In the present case it was admitted that the landlord used to accept rent in one lump after four months, or sometime even after five months, although no doubt he used to grant receipts for each month separately. It is clear, therefore, that he waived the notice which was mentioned at the foot note of his rent receipts. The very fact that in the foot-note he mentioned that in default of payment of rent, for more than two months the tenants would be liable to be evicted clearly goes to show that the landlord agreed to accept the rent not at the close of every month, nor at the close of even two months, but thereafter. The conduct of the landlord also clearly supports the arrangement agreed to between the parties, and, as such it cannot be said that there had been, in the special circumstances of the present case, a non-payment of rent within the meaning of Section 11(1)(a) of the Act.

(12) 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 non-payment of rent to order eviction of a tenant The Act empowers the Controller alone to decide whether "or not there is non-payment of rent, and it expressly makes his order final, subject only to the decision of the Commissioner. Therefore, even if the Commissioner may be assumed to have wrongly decided the question of non-payment of rent, which by no means is clear, hig order cannot be questioned. Such a question is essentially a question of fact, and therefore, the finding on the question of non-payment of rent by the Commissioner, being within the ambit of his jurisdiction, is a finding of fact which cannot be questioned, even if wrong. His decision is final under Section 18 (3) of the Act, and, therefore, it cannot be questioned even by a writ of certiorari. This view was taken by a Division Bench of this Court in Satyanarain Jhunjhunwala v. Mustafa Kamal Mohiuddin Akhtar, AIR 1954 Pat 24 [LQ/PatHC/1953/120] (C).

(13) The Supreme Court decision in Waryam Singh v. Amarnath, 1954 SCR 565 [LQ/SC/1954/7] : (AIR 1954 SC 215 [LQ/SC/1954/7] ) (D), relied upon by Mr. Untwalia has absolutely no application to the facts of the present case, as in that case it was admitted by the defendant that there was non-payment of rent but he pleaded that it was due to the fact that he was waiting for the fixation of fair rent by the Rent Controller, and, as such there was not enough ground for ejectment. In such circumstances it was held by the Supreme Court that the lower courts realised the legal position but in effect, declined to do what was incumbent on them Jo do and order eviction, and thereby refused to exercise jurisdiction vested in them by law.

(14) The contention of Mr. Lal Narain Sinha, who appeared for the tenants opposite party that the landlord waived the printed notice at the foot note of the printed receipts, and, permitted the tenants opposite party to pay according to their convenience, and that such a question was purely a question of arrangement between the parties, must therefore, be upheld.

(15) Mr. Sinha raised a further point that it was admitted by the Petitioner that the original rent was Rs. 18.00 per month, but it was increased to Rs. 24.00 in 1947, which also was further increased to Rs. 33.00 in 1948, and, therefore, he contended relying on Section 4 of the Act, that such an enhancement of rent was illegal, and, therefore, on proper accounting, there can be no non-payment of rent. This question, however, was not raised before any of the courts below, and, as such, at this late stage, it would not be proper to take notice of such a plea, which being a question of fact cannot be investigated by this Court, in a proceeding under Article 226, or Article 227 of the Constitution.

(16) I would, accordingly, discharge the rule, and reject the application of the petitioner, as no case has been made out for issuing any writ whatsoever. In the circumstances of the case, there will be no order for costs.