Jiwana Mal v. Khushi Ram .

Harnam Singh, J.:— Jiwana Mal tenant applies under Article 227 of the Constitution of India that the orders passed by the District Judge, Ferozepur, in Miscellaneous Civil Appeal No. 186 of 1950 may be set aside. By that order the District Judge has directed the eviction of Jiwana Mal tenant from the shop let to him by Khushi Ram landlord.

2. Briefly summarized the facts of the case are these. On the 11th of August, 1949, Khushi Ram landlord applied under section 13 of the Punjab Urban Rent Restriction Act, 1949, hereinafter referred to as the Act, for the eviction of Jiwana Mal tenant on the ground of non payment of rent. That application was rejected by the Rent Controller on the 19th of November, 1949. From the order passed by the Rent Controller on the 19th November, 1949, the landlord appealed under section 15 of the Act.

3. In the appellate proceedings the point that arose for decision was whether the tenant had complied with the requirements of the proviso to section 13(2)(1) of the Act.

4. Section 13(2)(1) of the Act reads:—

“A landlord who seeks to evict his tenant 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—

(i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land 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 following that for which the rent is payable:

Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at six per cent, per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid;

the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate.”

5. In the present case the tenant filed written statement on the 29th of October, 1949, and in that statement pleaded that the sum of rupees 885 which he was depositing under protest should not be paid to the landlord till the decision of the application. Indeed, on the 29th of October, 1949, the tenant applied that he may be permitted to deposit rupees 885 under protest. On that application the Controller ordered that rupees 887/8/- should be deposited Pursuant to the orders passed by the Rent Controller the sum of rupees 887/8/- was deposited. On the 18th of November, 1949, the tenant applied that it should be ordered that till the final decision of the case the money which he had deposited under protest should not be paid to the landlord. In the circumstances stated above, the appellate authority has come to the conclusion that the deposit made on the 29th of October, 1949 did not satisfy the requirements of the proviso to section 13(2)(i) of the Act.

6. In Narain Das v. Abinash Chandar . A.I.R 1922 P.C 347.. Lord Buckmaster said:—

“The tender was accompanied by a condition which prevented it being a perfect and complete tender, and the respondent was under no obligation to accept it. It follows, therefore, that cannot be regarded as the equivalent of payment, and that sum, if it be still in the control of the appellant, should be handed over to the respondent as part of the payment which he has to make.”

7. Section 38 of the Indian Contract Act, 1872, provides that offer of performance must be unconditional. Clearly, the offer made on the 29th of October, 1949, was not unconditional to be effective. If so, the appellate authority was right in finding that the deposit made by Jiwana Mal tenant did not satisfy the requirements of the proviso to section 13(2)(i) of the Act. In any case, the decision that the requirements of the proviso to section 13(2)(i) of the Act are not satisfied raises a mixed question of law and fact and I apprehend that the correctness of such a decision does not fall for examination under Article 227 of the Constitution. The power of superintendence given to the High Courts under Article 227 of the Constitution is not a power to correct errors, otherwise it would be tantamount to a power to entertain appeals on law and fact. Indeed, there is ample authority that powers of superintendence under Article 227 should be exercised only in cases where the Courts and Tribunals have done something which they were not competent to do.

8. No other point arises in these proceedings.

9. In the result I would dismiss with costs Civil Revision No. 756 of 1951.

10. Kapur, J.:— I agree that this revision should be dismissed and I am of the opinion that the money deposited by the petitioner with the condition added was not a tender or payment as required by the section of the Punjab Act and on this ground I would affirm the order of the learned District Judge acting as an appellate authority.

11. With regard to the interpretation to be put on Article 227, it is not necessary to give an opinion in this case and I would not restrict it to the extent that my learned brother has done. In the result this petition fails and the rule is discharged with costs.

12. Petition dismissed.