Sinha, J.:— This is an application for a writ of certiorari for recalling the record of Revision Case No. 556 of 1951 from the Commissioner of the Patna Division and for quashing the order made in that proceeding on 18-4-1952.

2. The petitioner is the landlord of a building bearing Holding No. 100 in circle No. 22 of the Patna City Municipality situated in Mahalla Muradpur, Police Station Pirbahore, in the town of Patna. Opposite Party 1 (hereinafter to be referred to as the opposite party) is the tenant of the said holding on a monthly rental of Rs. 55/- for the last several years. It is alleged that, according to the contract, the rent of the holding was payable on the expiry of each month on the 1st day of the succeeding month. The petitioner made an application on 3-4-1951, before the Sub-divisional Officer, Patna, the Controller under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Act 3 of 1947) for an order directing the opposite party to put the petitioner in possession of the said building on such date as the Controller might fix, on the ground the tenant was a habitual defaulter and was liable to eviction for non-payment of rent for the months of January, February and March, 1951.

3. After hearing the parties, the controller, by his order dated 21-7-1951, in B.B.A Case No. 59 of 1951 rejected the application of the petitioner. There was an appeal to the Collector of Patna by the petitioner, and the Collector allowed the appeal, set aside the order passed by the Controller, by his order dated 20-8-1951, and directed eviction of the opposite party. The opposite party, thereupon, moved the Commissioner of the Patna Division in revision, and the learned Commissioner allowed the application, set aside the order made by the Collector, on appeal and rejected the application of the petitioner for eviction of the opposite party, by his order dated 18-4-1953. It is against this order that the present application has been made. Sir Sultan Ahmad, learned counsel appearing on behalf of the petitioner, has submitted that the order of the learned Commissioner should be crashed on the ground of an error of law apparent on the face of the record. Before I deal with this point, some further laces have got to be noticed which appear from the application filed by the, opposite party in this Court showing cause as to why a writ of certiorari should not issue. The facts mentioned in the said application were not controverted by any affidavit by the petitioner.

4. The petitioner had purchased the said holding in 1942 from the Co-operative Bank, to which the holding originally belonged, and the opposite party was the tenant of the holding since before the purchase by the petitioner. With a view to increase the rental, the petitioner started harassing the opposite party in various ways. In 1944, an application was made for eviction of the opposite party on the ground that the landlord needed the building for his own use. The case was, however, dismissed. In 1949 another case was started for the eviction or the opposite party on the ground of non-payment of rent, but ultimately the case was withdrawn by the petitioner on 19-7-1949. In the aforesaid case it was shown by the opposite party that there was an arrangement between him and the petitioner to the effect that the rent would be collected on behalf of the landlord by on? Hira Missir to whom the opposite party and other tenants were to make payment of rent.

5. The aforesaid Hira Missir was an authorised servant of the petitioner, and he used to come and collect the rent and grant receipts, whenever he so liked. There was never any-fixed date for payment of rent, and sometimes rents were paid even in advance and sometimes in a lump for post arrears. The petitioner all the time pressed the opposite party to increase the rent, and the said Hira Missir did not collect rent during the period August, 1950 to December, 1950, and whenever the opposite party tendered rent, he was told, that rent would be accepted only if paid at enhanced rate. Thereupon, the opposite party sent the entire arrears of rent for the period aforesaid by money order, and it was accepted by the petitioner.

6. Later on, the petitioner tried to make out a false case of an agreement to enhance the rent and sent a letter dated 15-1-1951 to the opposite party who sent a reply to that letter dated 23-1-1951, denying that there was any such agreement. During the months of January, February and March, 1951, the period in question in the present proceeding the said agent of the petitioner did not come to realise the rent and whenever the opposite party met Hira Missir and asked him to accept the rent, the latter went on putting off the matter on one ground or the other, such as, the landlord was out of station and the receipt book was with him, and that on the return of the landlord he would take the rent after giving necessary receipt. In the month of April, 1951, Hira Missir told the opposite party that he-been instructed not to accept rent at the rate of Rs. 55/- per month. The opposite party, thereupon, sent the rent for the months of January, February, March and April, 1951 by money order, but the same was refused.

7. Thereupon, the opposite party deposited the rents for the aforesaid months into the Patna Treasury under S. 13 of the Act and the rents for the subsequent months have also been so deposited. The deposit of rents for the months of January, February, March and April, 1951, was made on 4-6-1951, during the pendency of the proceeding for eviction of the opposite party before the House Controller.

8. The Controller, while rejecting the application of the petitioner, observed:

“It is true that…… the opposite party has not been very regular, but in substance there has been no default after the deposit has been made. It is no doubt true that this deposit was made after the institution of the suit, yet the fact of deposit shows that the opposite party had no intention to default in making payment.”

The collector, on appeal, held,

“In this case on the date the application was filed, the tenant was definitely in arrears for a period of 3 months. The tenant has defaulted in payment of rent.”

Upon this finding, the appeal was allowed. When the matter went up in revision, the learned Commissioner remarked that unfortunately the original Court had not taken pains to read the petitions of the parties and to obtain evidence on some material points. But, upon the argument which he heard, he felt satisfied that there was difference between the parties about the rate of rent and that neither party could dispute the fart that, a person was specially detailed to collect rent.

9. The learned Commissioner concluded by observing:

“The opposite party's stand is that this was an addition precaution in order to ensure regular and monthly collection of rent. I have, however, to see that when such an arrangement is made whether the tenant would or would not wait for this person to come and collect rent. I think he would and with a certain amount of assurance because regular collection of rent has not been insisted upon. In this background it should be easy for the landlord to create conditions by which a default would take place. There is contributory negligence of the tenant but I have bona fide doubts whether the tenant did really intend to withhold payment of rent. The result is that though there has been delay in payment of rent I cannot hold the tenant entirely responsible for this state of affairs. This is therefore not a fit case in which an order of eviction should have been passed.”

10. It will appear that, although no evidence was taken by the House Controller, the assumptions made by the learned Commissioner were correct and are supported by the uncontroverted facts mentioned in the application of the opposite party showing cause. In effect the learned Commissioner found that the petitioner had failed to prove that it was a case of non-payment of rent.

11. The relevant portion of Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, runs as follows:

“11(1) Notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of S. 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 breach of the conditions of the tenancy, or………

(2) A landlord who seeks to evict his tenant under sub-s. (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.”

The argument of Sir Sultan Ahmad is that, in case the landlord proves that there was non-payment of rent and makes an application to the Controller for the eviction of the tenant on that ground, the Controller, after giving opportunity to the tenant to show cause, is bound to make an order for eviction, and in the present case there having been nonpayment of rent the learned Commissioner was entirely wrong in not giving effect to the law contained in S. 11(1)(a) and S. 11(2) of the Act, and, therefore, there is an error of law apparent on the face of the record.

12. The question whether there has been payment or no payment of rent is, in my opinion, essentially a question of fact. In this case, it has not been shown that there was any agreement about the time when the rent for the month was payable either by the end of that month or by any date in the next month, and it has been shown by the learned Commissioner that in this case there was an arrangement for collection of rent by the landlord & that the agent of the landlord used to visit the tenants and collect rents from them. It has been shown by the statement made in the petition showing cause that the agent of the landlord used to come and make collection and sometimes rent was paid in advance and sometimes in a lump sum to cover the arrears of rent. In a situation like this, in my opinion, when the Controller found as a fact that there was no non-payment but default in payment of rent, he was not bound to make an order of eviction.

13. In — ‘Brij Raj Krishna v. S.K Shaw and Brothers’, AIR 1951 SC 115 (A), it was held that a finding in regard to non-payment of rent is within the ambit of jurisdiction of the Controller and that finding cannot be questioned in a Civil Court. It was observed in that case “because here the Act (Bihar Act 3 of 1947) 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. Therefore, even if the Controller may be assumed to have wrongly decided the question of non-payment of rent, which by no means is clear, his order cannot be questioned in a Civil Court.”

14. There is no dispute in this case that under S. 18(3) of the Act the decision of the Commissioner is final and cannot be questioned in any Court of law whether in a suit or other proceeding by way of appeal or revision. It is clear, therefore, that the learned Commissioner in this case acted fully within his jurisdiction in holding in effect that there was no non-payment of rent, and, therefore, the tenant was not liable to be ejected. The I application, therefore, is without merit, and no writ of certiorari or any other writ can issue.

15. It has been held by the Supreme Court in — ‘Ebrahim Aboobakar v. Custodian General of Evacuee Property, New Delhi’, AIR 1952 SC 319 at p. 322 (B), that

“……It is plain that such a writ (certiorari) cannot be granted to quash the decision of an inferior Court within its jurisdiction on the ground that the decision is wrong. Indeed, it must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it or in violation of the principles of natural justice. Want of jurisdiction may arise from the nature of the subject-matter, so that the inferior Court might not have authority to enter on the inquiry or upon some part of it. It may also arise from the absence of some essential preliminary or upon the existence of some particular facts collateral to the actual matter which the Court has to try and which are conditions precedent to the assumption of jurisdiction by it. But cannot is held that the Court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly.”

In view of these decisions of the Supreme Court, it is not essential to consider the cases cited by the learned counsel, but I shall briefly deal with them.

16. The case of — ‘Lingambhotla Subbayya v. Subordinate Judge, Vijayawada’, AIR 1951 Mad 864 (C), was a case under the Madras Buildings (Lease and Rent Control) Act (15 of 1946). Section 7(2) of the said Act runs as follows:

“(2) A landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf. It the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied

(1) that the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next fallowing that for which the rent is payable, or……………”

In the case under review the rent was not paid on the date mentioned in the section. Both the Courts below had found that there was default but had held that default by itself could not be regarded as sufficient ground to eject a tenant in a case where the tenant proved that by long practice the house-owner did not insist on regular payment of monthly rent, and the High Court had quashed the orders of the Court below. The Bihar Act makes no mention of any date any which payment is to be made. Besides this, the abovenoted case in — AIR 1951 S.C 115 (A)’, had not been placed before their Lordships of the Madras High Court, and I do not know whether their Lordships' decision would have been different from what it is if the decision of the Supreme Court had been placed before them.

17. The next case cited before us was that of — ‘Sagatmal Biiikchand v. M.V Deo’, AIR 1952 Nag 4 (D). This was a case under the C.P and Berar Letting of Houses and Rent Control Order, 1949. In this case the facts were entirely different. The landlord wanted eviction of the tenant on the ground that he wanted the house for himself and for running his shop for which purpose he had purchased the house in question. At the time of the purchase of the house, the landlord was residing and carrying on a shop in a rented house, and after purchasing the house in question, which was occupied by a tenant, the landlord made an application for the eviction of the tenant. One of the provisions of the Control Order in question was in the following terms:

“That the landlord needs the house or a portion thereof for the purpose of

(a) his bona fide residence provided he is not occupying any other residential house of his own in the city or town concerned”.

This provision of the law had been ignored by the Rent Controller and the Additional Deputy Commissioner, on appeal, and on this ground the High Court quashed the order of the Controller and the Additional Deputy Commissioner. This case was decided in April, 1951, and although the Supreme Court case of — ‘Rai Brij Raj Krishna’, (A), had been decided in the preceding February, it was not placed before their Lordships. But, as I have said, the facts of this case were entirely different from the present one, and, therefore, it has got no application.

18. Reliance was also placed upon the case of — ‘T.C.A Anandalwar v. Second Judge, Court of Small Causes, Madras’, AIR 1949 Mad 788 (E). In that case also, there was default in payment of rent as provided for in Section 7(2)(i) of the Madras Act 15 of 1946, and, on the facts of that particular case, the High Court interfered by issuing a writ of certiorari.

19. The last case referred to by Sir Sultan Ahmad was that of — ‘Dr. C.S Krishnaswamy Ayyar v. Mohanlal Binjani’, AIR 1949 Mad 535 (F). This case was cited before us to show that a writ of certiorari can issue in cases where there are errors apparent on the face of the proceedings. The principles on which a writ of certiorari can issue are well known, but the difficulty lies in applying those principles to the facts of a particular case. Whether a writ of certiorari can issue must naturally depend upon the facts of each particular case.

20. I would, accordingly, discharge the rule and reject the application with costs.

21. Hearing fee three gold mohurs.

22. Ramaswami, J.:— I agree.

A/R.G.D

23. Application rejected.