Mahabir Prasad, J.This appeal is by the plaintiffs from a decision of a Subordinate Judge of Patna, affirming a decision of the Munsif of the same place, dismissing the suit of the plaintiffs.

2. It raises the question whether it is open to a civil Court to declare that an order of eviction of a tenant u/s 11, Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III [8] of 1947), to be referred to hereafter as the Act) passed by the House Controller is ultra vires and in excess of the special jurisdiction conferred by the Act on him to pass such an order.

3. The facts are not in dispute. It appears that the plaintiffs have been in occupation, as tenants from month to month, of several blocks of premises belonging to the defendants at a monthly rental of Rs. 112. One months rent seems to have been paid in advance which was to be adjusted towards the rent of the last month before the termination of the tenancy. The rents for the month of March, April and May 1947, fell into arrears. The plaintiffs remitted by means of two cheques the rent for these months along with the rent of June 1947, on 28th June 1947, to the defendants. The defendants refused to accept the payment. On 4th August 1947, the plaintiffs then remitted the amount covered by those cheques by a postal money order which was also refused. The rent of July also had by that time become due. On 12th August 1947, the defendants applied to the Building and House Controller u/s 11(1)(a) of the Act for the eviction of the plaintiffs from the premises, on the ground of irregular payment of rent, which, they submitted in their petition, amounted to non-payment of rent and a breach of condition of the tenancy. On 13th August 1947, it appears, the defendants refused to accept the rent sent by the postal money order. On 13th August 1947, the plaintiffs deposited the amount of rent up to August 1947, in the Court of the House Controller. On 10th November 1947, the House Controller passed an order directing the plaintiffs to vacate the premises on the ground of non payment of rent. This order was confirmed by the Commissioner on appeal on 27th April 1948. The plaintiffs then filed this suit on 7th Say 1948, for a declaration that the order of the House Controller, directing the plaintiffs to vacate the premises was illegal, ultra vires and without jurisdiction and for a permanent injunction restraining the defendants from executing the said order.

4. The learned Munsif held that the order of eviction passed by the House Controller was final, and by reason of the provisions of Sub-section (3) of Section 18 of the Act, was not liable to be questioned in any Court of law whether in a suit or other proceeding by way of appeal or revision, and dismissed the suit. On appeal, the learned Subordinate Judge affirmed the decision of the learned Munsif. Hence, the second appeal.

5. What falls to be determined, therefore, is within what limits, if any, the Controller can pass an order of eviction of a tenant under the Act, and whether in the circumstances of the present case, the Controller in passing the order of eviction in question has gone beyond those limits, and has acted in excess of his jurisdiction.

6. That it is open to the civil Court to examine the cases whether the Courts of special jurisdiction have not complied with the provisions of the statute creating them or have not acted in conformity with the fundamental principles of judicial procedure, is well established. Exclusion of jurisdiction of the civil Court is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied: AIR 1940 105 (Privy Council) . What is further well settled is that on principles it is for the civil Court to determine in the last resort the limits of the powers of a Court of special jurisdiction: AIR 1938 219 (Privy Council) .

7. Mr. P.R. Das on behalf of the appellants contends that if it is established that on the date of the order of eviction there was no "non-payment of rent," the plaintiffs either having actually paid or offered to pay or having actually deposited all the rent due from them, before the date of such order, the order of the Controller evicting the plaintiffs cannot but be in excess of the powers conferred by Section 11 of the Act. In other words, what he argues is that Section 11 of the Act, by plain implication, forbids eviction of a tenant either in execution of a decree of a civil Court or of the order of the Controller, if the tenant at the time of the passing of the order is not, in fact, in arrear of rent, having either already paid or offered to pay or deposited the rent due from him. As, on the admitted facts and findings of the Courts below, the plaintiffs had in the present case offered to pay all the rents due from them even before the application for their eviction was filed before the Controller and had actually deposited the full amount of rent due from them in the Court of the Controller before the order of eviction in question was passed, they were not in arrear and there was no "non-payment of rent" within the meaning of Section 11 of the Act. The Controller, in the circumstances, had no jurisdiction to pass the order of eviction, and the civil Court has jurisdiction to review such order and declare that the act of the Controller was ultra vtres. He relies on the decisions of the Privy Council in the cases of Secretary of State v. Srimati Fahemidunnissa Begum 17 I.A. 40 and Balkishen Das v. Simpson 25 I.A. 151 and other cases, which held that the civil Court was entitled to hold that decisions and orders of revenue Courts subjecting lands found by the civil Court as having been included in the permanent settlement to an additional assessment, or selling the estates which were not, as determined by the civil Court, in arrears of Government revenue, were ultra vires, and a suit for a declaration to that effect was not excluded from the cognizance of the civil Court.

8. Mr. Lalnarain Sinha for the respondents, on the other hand, contends that on a proper construction of Sections 11 and 18(3) of the Act there is no escape from the conclusion that it is for the Controller to decide whether the grounds on which a tenant is liable to be evicted have been made out, and his decision that the tenant is liable to be evicted under the provisions of Section 11(1)(a) even if wrong in fact and in law, is final, and any challenge to such a decision in a Court of law by a suit or otherwise is expressly excluded by Section 18(3) of the Act. On the allegation of the defendants before the Controller that the plaintiffs were not paying rent regularly month by month which amounted to "non-payment of rent" and was a breach of the condition of the tenancy, the Controller was called upon to decide if, on the facts stated and proved, the plea of "non-payment of rent" was established and the plaintiffs were liable to be evicted. In other words, his contention is that assuming that the allegation in the petition or the facts established did not make out a case of "non-payment of rent" in fact, the circumstances disclosed in the petition did raise the plea of "nonpayment of rent" in law, and the Controller was clearly within his jurisdiction in deciding that question. His decision may be wrong in law but that is no ground for holding that he assumed, in so deciding the question, an unjustifiable jurisdiction. He relies on an observation made by the Judicial Committee in the case of AIR 1940 82 (Privy Council) in repelling the argument that the action of the Local Government was ultra vires as it was founded on the wrong interpretation of the phrase "gross annual profit" occurring in Sub-clauses (iii) and (iv) of Section 8, U.P. Court of Wards Act.

9. What, therefore, requires to be considered a as to what is the true scope of Sections 11 and 18(3) of the Act, and to what extent they abrogate or alter the existing law relating to duration and determination of tenancies and the jurisdiction of civil Courts to decree ejectment of a tenant on such determination of a tenancy, and then what powers they confer on the Controller in the matter of ordering eviction of a tenant in possession of a building.

10. Relevant provisions of Sections 11 and 18(3) of the Act are:

11. (1) Notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of Section 12, where a tenant is in possession of any building, he shall not be liable to be evicted therefrom, whether in execution of a decree or otherwise, except (a) in the case of a month to month tenant, for non-payment of rent or breaoh of the conditions of the tenancy, or for sub-letting the building or any portion thereof without the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment; and (b) in the case of any other tenant, on the expiry of the period of the tenancy, or for non-payment of rent, or for breach of the conditions of the tenancy.

(2) A lordlord who seeks to evict his tenant under Sub-section (1) shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant is liable to be evicted under the provisions of Sub-section (1), he shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application.

18(3). The decision of the Commissioner and subject only to such decision, 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.

11. The existing law relating to duration and determination of tenancies is to be found in Sections 106, 111 and 114, T.P. Act.

12. Section 106, T.P. Act is:

In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days notice expiring with the end of a month of the tenancy.

Every notice under this section must be in writing signed by or on behalf of the persons giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.

13. It will be seen that Sub-section (1) of Section 11 of the Act abrogates Section 106 to the extent that a tenancy from month to month shall not be "terminable, on the part of either lessor or lessee, by fifteen days notice expiring with the end of a month of the tenancy."

14. Section ill provides how a tenancy is determined:

A lease of immovable property determines (a) by efflux of the time limited thereby; (b) where such time is limited conditionally on the happening of some event by the happening of such event; (c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happenings of any event by the happening of such event; (d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right; (e) by express surrender ; that is to say, in case the lessee yields up his interest under the lease, to the lessor by mutual agreement between them; (f) by implied surrender; (g) by forfeiture, that is to say, (1) in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter; or (2) in case the lessee renounces his character as such by getting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease; (h) on the expiration of a notice to determine the lease or to quit, or of intention to quit, the property leased, duly given by one party to the other.

15. It will be seen that where the tenant does not expressly or impliedly surrender the tenancy, it is determinable under Clause (a) or Clause (g) of the section which provisions are not abrogated. In other words, determination of a tenancy by the efflux of the time limited by the lease or by forfeiture caused by breach of an express condition which provides that on breach thereof the lessor may re-enter remains intact. A further mode of determination of a tenancy, not contemplated by Section 111, T.P. Act, is introduced by Section 11, namely, by "non-payment of rent". Under the general law as enacted in the Transfer of Property Act, unless it is stipulated between the parties that non-payment of rent will bring about forfeiture of the tenancy, non-payment of rent could not determine the tenancy.

16. But where there is such a stipulation, and there has occurred forfeiture on account of non-payment of rent, Section 114, T.P. Act provides for relief against such forfeiture the terms of which are:

Where a lease of immovable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.

Relief against forfeiture is based upon the principle that as a right of re-entry was intended merely as a security for rent, the lessor by the lessees bringing the rent into Court, recovered full compensation and was put in the same situation as if rent had been paid to him when it was originally due. This relief, of course, has been made discretionary with the Court hearing the suit for ejectment of the tenant. The proper rule, however, as established by judicial decisions, seems to be this. If at the time the relief is asked for, the position has been altered so that the relief cannot be given without causing injury to third parties, relief will be refused. But if the position is not altered so that no injustice will be done, there is no real discretion and the Court should make the order: Debendra Lal Khan Vs. F.M.A. Cohen, . It has also been held that a condition in a lease which enables the landlord to re-enter on non-payment of rent is regarded as penal and should be relieved against by the Court even though the case does not fall under the Transfer of Property Act: Vaguran v. Rangayyangar 15 Mad. 125 .

17. The question is whether Section 11 of the Act by providing for eviction of a tenant for "non-payment of rent" while abrogating the law against non-payment of rent operating to determine the tenancy by forfeiture in the absence of a contract to that effect, also does away with the application of principle of granting relief against forfeiture. It is evident that the section does by its terms neither expressly provide for relief against forfeiture nor exclude the application of the principle on which granting of such relief is based. If the expression "for non-payment of rent" be construed to mean failure to pay rent regularly when it falls due, it will be seen that it will not only make the law relating to eviction of a tenant harsher and more stringent against a tenant, but will take away what protection he has under the general law against being penalised for having agreed to the terms in the lease for his eviction for non-payment of rent. If, on the other hand, the expression "nonpayment of rent" in the section is given the meaning not paying all the rent due on or before the date of the order, the Act will have made granting of relief against forfeiture for nonpayment of rent compulsory, instead of discretionary, in that it will have provided against determination of tenancy by forfeiture for nonpayment of rent except in a case when the total amount of rent due from the tenant remains in fact unpaid on the date of the order.

18. It has to be remembered" as observed by Lord Porter in AIR 1940 82 (Privy Council) .

that a right construction of the Act can only be attained if its whole scope and object together with an analysis of its wording and the circumstances in which it is enacted are taken into consideration.

Regard being had to the circumstances in which the Act under consideration was enacted and its object, as stated in the preamble as being "to prevent unreasonable eviction of tenants" from buildings, it would seem that the expression "non-payment of rent" in Section 11 in the context in which it is used must be given an interpretation which would have the effect of enlarging the protection against determination of a tenancy enjoyed by a tenant under the ordinary law.; The Legislature, therefore, by enacting that a; tenant shall not be liable to be evicted "except for non-payment of rent" should be held to have intended to protect a tenant from being evicted from a building in his possession for being a defaulter in payment of rent, if he brings into Court all the rent due from him before the order of his eviction comes to be passed. The analysis of the wording of the section indicates that the Act, in the first place, creates a complete bar against an eviction of a tenant, and secondly, in order to prevent this bar from operating to the extreme prejudice of a landlord, it specifies by way of exceptions certain reasons which, if exist, will disentitle the tenant to the benefit of the bar imposed by this section against his eviction. It will be seen that the section by its wording does not entitle the landlord to evict a tenant on the ground of his having defaulted in payment of rent; in other words, it does not confer an additional right on the landlord to claim eviction of a tenant on the ground of his being guilty of non-payment of rent. It will be remembered that Section 13, Bihar House Rent Control Order, 1942, the provisions of which were intended to be incorporated in the present Act, by its terms provided:

No order for the recovery of possession of any house shall be made so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by this Order and performs the condition a of the tenancy. The Legislature undoubtedly by wording of Section 11, has intended to give effect to the express provisions of Section 13 of the law which it was replacing.

19. Examining the question now from the point of view as to whether the civil Court can at all deal with the matter of eviction of tenants, it will be seen that there is no exclusion of jurisdiction of the civil Court to entertain a suit or pass a decree for eviction of a tenant. All that the section seems to provide is that execution of such a decree shall not be allowed unless the Controller, on an application made in that behalf, directs under Sub-section (2), that the tenant shall put the landlord in possession of the building. The wording "where a tenant is in possession of any building, he shall not be liable to be evicted there from, whether in execution of a decree or otherwise, except" in Sub-section (1) and a landlord who seeks to evict his tenant under Sub-section (1), shall apply to the Controller for a direction in that behalf" in Sub-section (2) seems clearly to imply that a landlord may institute a suit for eviction of a tenant in a civil Court and obtain a decree to that effect, but before be puts the decree into execution, he has to apply for and obtain an order of the Controller permitting eviction of the tenant in execution of that decree. The only reason for enacting such a provision seems to be to give one further opportunity to the tenant to pay up the rent due from him in the Court of the Controller and thus prevent the decree of eviction from being executed against him, although he may have failed to avail himself of the opportunity of being relieved against forfeiture by the civil Court before the passing of the decree in question.

20. In view of these considerations, it must be held that before a tenant can be said to have incurred the liability to be evicted under the provisions of Sub-section (1), he must have failed or is not willing or unable to pay the rent due from him. In other words, if the tenant against whom a decree for eviction has been passed and a direction from the Controller to execute that decree is applied for brings in the Court of the Controller all the rent due from him up to that date, there is no longer the fact of "non-payment of rent" in existence, or if the tenant has committed a breach of a condition of the tenancy and the decree of the civil Court evicting him is founded upon that ground, and the breach is such as can be remedied and has been remedied by the tenant, the reason for which the Controller is empowered to pass the order of eviction ceases to exist, and consequently, the power conferred upon the Controller by Sub-section (2), to evict the tenant ceases to exist, and he will be acting ultra vires in making the order of eviction, The position is just the same in a case where the landlord without going to the civil Court applies to the Controller for eviction of a tenant. There is nothing to prevent a tenant from depositing in the Court of the Controller all the rent due from him before the order of eviction is actually made and ousting the jurisdiction of the Controller to pass the order by making the fact, on which his jurisdiction is founded, non-existent.

21. When an application is made to the Controller under Sub-section (2), all that the Controller has to be satisfied about before giving the direction required seems to be whether the reasons specified in Sub-section (1), disentitling a tenant to the absolute protection against eviction given by that Sub-section exist in fact. If the tenant against whom an order of eviction is sought, has in the meantime removed the particular cause on which the application for his eviction is founded, the Controller cannot but make an order rejecting the application. The complicated questions of law relating to determination of tenancies entitling the landlord to evict a tenant are not intended to fall for determination by the Controller. His jurisdiction under the Act must be construed to be strictly limited to the existence as fact of one of the reasons disentitling the tenant to the protection given under Sub-section (1). His jurisdiction is very much like jurisdiction of the Local Government under the U.P. Court of Wards Act to declare a person disqualified to manage his own property under Clause (d)(ii) of Section 8, which as Lord Porter, in the case of AIR 1940 82 (Privy Council) , says, "exists only provided the proprietor has been in fact convicted of a non-bailable offence, and if that fact is non-existent, the Local Government would be acting ultra vires in making a declaration."

22. Reading Section 18(3) of the Act, in this context, it is clear what it excludes is the jurisdiction of the civil Court to question the order of the Controller, provided the fact for which the order is made is not non-existent. It certainly does not exclude the jurisdiction of the civil Court to examine into cases where the order is made in the absence of the fact, on the existence of which alone depends the jurisdiction of the Controller.

23. If, as contended for on behalf of the respondents, Section 11 of the Act were to be construed as entitling a landlord to apply for eviction of a tenant on the ground of irregular payment of rent amounting to "non-payment of rent" and as empowering the Collector to determine as to whether irregular payment of rent amounts to non-payment of rent within the meaning of Sub-section (1) of Section 11, and Sub-section (3) of Section 18 were to be construed as making the decision of the Controller of this question of law as final, it will appear that not only this Act will have conferred a right upon the landlord very much in excess of the right that he enjoys under the ordinary law in the matter of determination of tenancies, but that it will have conferred very much larger power on the Controller than that possessed by the civil Courts under the ordinary law in the matter of passing decrees for eviction of tenants. The principle of law and equity on which relief against forfeiture of "non-payment of rent" is based will have been completely abrogated, and the protection to a tenant in possession of a building instead of being enlarged will have been very much curtailed. A construction of these provisions, which is calculated to bring about these consequences, cannot be and is not in accordance with the circumstances to which this Act was intended to apply and indeed cannot be accepted. The contention of Mr. Lalnarain Sinha on behalf of the respondent that the circumstances disclosed in the petition raised the question for determination by the Controller whether a case of non-payment of rent in law was established, and his decision of that question, even if wrong in law, is not liable to be questioned in the civil Court must be overruled.

24. Mr. P.R. Das rightly contends that the civil Court is entitled to hold that the Controller acted ultra vires in making the order of eviction in question if the plaintiffs, as admitted and found by the Courts below, offered all the rents due from them even before the application for eviction was filed, and in any event, they had actually deposited in the Court of the Controller full amount of rent due from them before the order of eviction was passed, and the jurisdiction of the civil Court to declare such an order without jurisdiction is not barred by Section 18(3) of the Act.

25. From a perusal of the application filed by the defendants to the House Controller, it appears that, the ground urged by them for evicting the plaintiffs from their premises was not that the plaintiffs had not paid the rent or that the rent for any particular month was in fact due from them on the date of the application. They admitted that the two cheques covering the rent up to the month of June 1947, were actually sent to them before the end of the month of June 1947, by the plaintiffs. Their case was that they refused to take them as the plaintiffs had made defaults in paying rent from month to month regularly. They alleged that this default on the part of the plaintiffs entitled them under the Act to evict the plaintiffs for "nonpayment of rent". They stated that when the plaintiffs sent the rent due from them by means of money order, they mentioned falsely in the money order coupon that the defendants were attempting to enhance the rent for which reason the defendants did not accept the payment by money order. To quote the exact words on which the petition filed before the Controller as founded:

That on account of the rent from March last not having been paid regularly month by month which amounts both to non-payment and to breach of the necessary condition of the tenancy, the opposite party are liable to be evicted from the premises in their occupation.

It will appear from the order of the Controller that he did not hold that irregular payment of rent was breach of the necessary condition of the tenancy. What he held was that such irregular payment, as stated in the petition, was "non-payment of rent" within the meaning of Section 11(1)(a) entitling the defendants to evict the plaintiffs from the possession of the premises in their occupation.

26. It is clear that on the facts admitted in the petition itself, there was no allegation requiring investigation by the Controller whether there was in existence the fact of "non-payment of rent". The ground urged in the petition was obviously not covered by any of the reasons specified in Sub-section (1) of Section 11 and was prima facie not cognizable by the Controller. There was undoubtedly lack of inherent jurisdiction in the House Controller to entertain the application in question. It must accordingly be held that the order of eviction is open to a challenge in the civil Court and must be declared to be ultra vires and without jurisdiction.

27. In the result, the appeal is allowed, the decisions of the Courts below are set aside, and the plaintiffs suit is decreed. The parties will bear their own costs throughout.

Manohar Lall J

28. I have also reached the same conclusion. My learned brother has examined the various provisions of the Bihar Buildings Control Act and the extent of the jurisdiction of the Controller. I am generally in agreement with his views, but as the question is a difficult one, I wish to make a few observations.

29. A reference to several important judgments will show the test which should be applied in order to determine whether the civil Court has jurisdiction to question the decision of an inferior tribunal or of a special tribunal set up for deciding particular disputes between the parties.

30. In Queen v. Special Commissioners of Income Tax In re Gape Copper Mining Co. (1888) 2 T.C. 332, Esher, M.R., observed at page 351:

When an inferior Court, or an inferior tribunal, or an inferior body which is trusted by the Legislature to come to a decision on facts is constituted by Act of Parliament for the first time, the Legislature has to consider what power it will give to those persons. It may say if a certain state of facts exist before you have anything to do with the matter, then you will have jurisdiction to do what we will tell you to do, but you shall not have jurisdiction otherwise, then the existence of such facts is not for them to decide, and if they exercise the jurisdiction which is given them without the existence of those preliminary facts which they have not to decide upon, you may question the exercise of their jurisdiction afterwards, and hold that they have no jurisdiction to do what they did. They would then have done all that was entrusted to them under circumstances when that jurisdiction which was to be entrusted to them did not exist the preliminary facts did not exist; but they had not to decide upon the preliminary facts, they bad no jurisdiction to decide upon the preliminary facts; but there is another state of things. The legislature may, if the matter will present some doubt, entrust them not with two jurisdictions, in my opinion with one jurisdiction but a jurisdiction which comprises and includes two seta of facts. They have the jurisdiction given to them to decide whether the preliminary set of facts exists, which if they do exist will entitle them to go farther, and to do something more. If the Legislature gives them that, I do not call it a double jurisdiction, but that comprehensive jurisdiction, it is all one jurisdiction. They have jurisdiction with regard to what you may call the preliminary facts, the first set of facts the same jurisdiction and just as much jurisdiction as they have with regard to the second.

31. In AIR 1938 219 (Privy Council) , the question for consideration was whether a suit for a declaration that the plaintiff was not liable to pay haq buha (door tax) to the defendant was cognizable by the civil Court in view of the bar imposed by Section 77(3), Punjab Tenancy Act of 1887. Sir George Rankin in delivering the judgment of the Board observed at p. 309:

Had the suit brought in the civil Court been a suit to declare that haq buha was not a village cess within the meaning of the Act of 1887, and that the Revenue Courts had not jurisdiction in respect thereof such a suit could not have been regarded as incompetent. On principle it is for the civil Court to determine in the last resort the limits of the powers of a Court of special jurisdiction, and no statutory provision to the contrary has been drawn to their Lordships attention in the present case.

In the course the judgment a reference is made to a number of cases to show to what extent the civil Court has jurisdiction to deal with the matters which are expressly reserved for the revenue Courts.

32. In AIR 1940 82 (Privy Council) , Lord Porter who delivered the judgment of the Board had to construe a number of sections of the U.P. Court of Wards Act of 1912 in order to consider the validity of the argument that the civil Court had no jurisdiction to question the action of the Government in making a declaration u/s 8 of that Act. His Lordship pointed out that although in terms Section 11 appeared to prohibit the bringing of an action disputing the validity of a declaration made by the Court of Wards, but still some limitation must, no doubt, be put upon the generality of the provision at least inasmuch as good faith is required. He then considered the argument of the appellant that the Court of Wards was without jurisdiction, and could be declared to be without jurisdiction by the civil Court in all cases in which the preliminary requirements of Section 8 had not been fulfilled and pointed out that by the very terms of Section 8 the satisfaction is of the Local Government and not of the Court with regard to the existence of the circumstances indicated in Sub-clauses. (a), (b), (c) and some of the Sub-clauses of (d) u/s 8, With regard to the provision that a person may be declared by the Local Government to be incapable of managing his property if he is convicted of a non-bailable offence, it was observed at p. 210 that it was conceivable that under (d)(ii) the jurisdiction only exist3 provided the proprietor has been in fact convicted of a non-bailable offence, and that if this fact was non-existent the Local Government would be acting ultra vires in making a declaration.

33. In Secretary of State v. Mash & Co. A.I.R.1940 P.C. 106, Lord Thankerton in delivering the judgment of the Board held that the jurisdiction of the civil Court was excluded by reason of the special provisions of the Sea Customs Act of 1878. But at p. 236 he made these weighty observations:

It is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act hive not been complied with, or the statutory tribunal hag not acted in conformity with the fundamental principles of judicial procedure.

and pointed out the distinction why in that case the jurisdiction of the civil Court was excluded because the subject-matter came expressly within the jurisdiction of the Collector. See also the recent case of the Province of Bombay v. Hormusji Manekji AIR 1947 P.C. 200.

34. A reference may, however, be made to Raleigh Investment Co. v. Governor-General in Council AIR 1947 P.C. 78, where Lord Uthwatt, who delivered the judgment of the Board, pointed out the practical difficulties if the civil Court was allowed to entertain a suit for a declaration that an assessment made under the Income Tax Act was without jurisdiction as being ultra vires of the powers of the Income Tax authorities, and then held that the jurisdiction of the civil Court was excluded his Lordship was considering the ambit of Section 67, Income Tax Act. This case is distinguish, able because the Income Tax Act provides a complete remedy for enabling the asaessee to have the question of law or of jurisdiction of the Income Tax authorities determined by the highest civil Court as a result of a reference u/s 66 of the Act.

35. The principle which I deduce from an examination of these cases is that the civil Court is not debarred from examining the proceedings of the Controller under the Bihar Buildings Control Act if the Controller has exercised the jurisdiction which he did not possess. I reached a similar conclusion in the case of Surajnarain v. Jamil Ahmad AIR 1946 Pat. 385 .

36. In the present case the House Controller has misconstrued Section 11(1)(a), in that he think3 that an irregular payment of rent amounts to "non-payment of rent", that is to say, he has, by misconstruing these important words, given himself jurisdiction to entertain the application of the defendant and passed an order ejecting the plaintiff. It was argued by the learned Government Pleader for the defendant that it was within the jurisdiction of the Controller to misconstrue these words, and he relied upon the case of AIR 1940 82 (Privy Council) , noticed by me above. But in that case their Lordships pointed out that the phrase "gross annual profits" (which was alleged to have been misconstrued by the Local Government) has no definite meaning, and it must take its colour from its surroundings (see AIR 1940 82 (Privy Council) and therefore, it was held that in the case before their Lordships it was essential to consider those surroundings by an examination of the scheme of the Court of Wards Act, the way in which land tax is regarded in India, and any provisions of the Land Revenue Act which bear upon the matter, in addition to the exact wording of Section 8. In the present case, the words non-payment of rent have a definite meaning and do not require to be construed by considering the surrounding, that is to say, the construction of these words is not a question of fact as it were, but the words can have only one well-known and definite meaning. This argument, therefore, is not entitled to succeed.

37. As to the exercise of jurisdiction by misconstruing a statute, see Birj Mohun Thakoor v. Umanath Choudhry 19 I.A. 154 and Balakrishna Udayar v. Vasudeva Aiyar AIR 1917 P.C. 71.

38. Now the facts which have been established and which are set forth in the application of the defendant before the House Controller are clearly set out in the judgment of my learned brother. These facts do not give any jurisdiction to the Controller to entertain the application for eviction of the plaintiff. It was argued that in any case the plaintiff had not even tendered the rent for July 1947 before 12th August 1947, when the defendant made an application to the Controller, and therefore, there was a non-payment of rent for that month to attract the jurisdiction of the Controller to entertain the application. In my opinion, the conduct of the defendant in refusing to accept the cheques and the money order by which the rents for March, April, May and June 1947, were sent to the defendant entitled the plaintiff from refraining from tendering the rent for July.

39. It is well settled that a party is not bound to make a useless tender when he knows for certain that the tender would be refused. See Alexander John Forbes v. Baboo Lutchmeput Singh 14 M.I.A. 330 and Chelikani Venkatarayanim Garu v. Venkata Subbadrayamma AIR 1923 P.C. 26.

40 It having been then established that the plaintiff was not in default on account of any non-payment of rent the Controller had no jurisdiction to entertain the application, and certainly he had no jurisdiction to pass the order for eviction because before that order came to be passed the plaintiff had actually deposited in Court the full amount which was due from him, that is to say, the amount which he had already tendered to the defendant and the amount which subsequently fell due.

41. For these reasons, I agree that this appeal should be allowed and the suit of the plaintiff Should be decreed, but the parties should bear their own costs in all the Courts.