Mohanlal Agarwalla vs Bidyadhar Puruseth and Others

R.N. Misra, J.—This is a tenant''s application for certiorari directed against the affirming appellate order under the Orissa House Rent Control Act (hereinafter referred to as the ''Act'') directing his eviction from a house located within the town of Sambalpur.

On 23-2-1969, the application for eviction was made to the House Rent Controller u/s 7(2) of the Act on grounds of subletting and default in the matter of payment of rent. On behalf of the tenant-Petitioner it was pleaded that the rent for the month of September, 1963 had been offered in the first week of October, but it was not accepted by the landlord. Therefore, it had been remitted by money order in course of November. It was also pleaded that the rent used to be collected once in two or three months and the mode of receiving rent for more than one month at a time had become the accepted practice and could be taken as an implied contract regarding the mode .of payment. The tenant denied that he incurred the liability of eviction on account of subletting

Before the Controller, each party examined one witness and certain documents were produced. The Controller negatived the defence plea and allowed eviction. On appeal, the order of eviction has been upheld.

Mr. Mohanty for the Petitioner raises the following contentions:

(i) Tenancy of the house commenced some sixty years back when Petitioner''s grandfather came to possess the premises. Ever since then, the family has been in possession. There is no finding that there has been any subletting after the Act came into force. The sale evidence of subletting came from witness who had no personal knowledge and had stated that he heard from some body else about it. It is contended that the Evidence Act applies to the proceedings under the Act and hearsay is not evidence.

(ii) The Controller and the appellate authority were not justified in holding that Petitioner became liable for eviction for non-payment of rent. The appellate authority rejected this stand by saying that the documents show the rent had been received from the Petitioner at a time for two months or even for more than two months and therefore, Petitioner''s stand that rent was being received once in two months was not correct. The Petitioner''s plea has not been properly appreciated. He really contended that by practice spread over several years, rent was being collected periodically and not from month to month.

(iii) It is next contended that even if there be default for the month of September, 1968, a single default, particularly when there was evidence that the rent had been remitted in the month of November, i.e. a few days beyond the permissible limit, the Controller or the appellate authority should have found out whether the default was wilfull. In case they came to hold that it was not wilful default, the Proviso u/s 7(2) of the Act should have been applied.

In the application made to the Controller, the landlord had alleged:

That the opposite party No. 1 (Petitioner herein) did not pay rent of September, 1968, till end of October, 1968 and as such is liable for eviction u/s 7(2), Clause (i) of House Rent Control Act.

The plea of default, therefore, related to only one single occasion. Though the eviction proceeding was instituted in February, 1969, nothing was mentioned about the months of November and December of 1968 and January of 1969. As nothing has been stated about those months, it is appropriate to assume that there was no default for those months and for September rent appears to have been remitted in November. When default is on a singular occasion, we are inclined to accept Mr. Mohanty''s contention that the authorities under the Act had an obligation to find out whether the default was wilful so as not to extend the benefit of the Proviso. The Act is a beneficial legislation and the proviso which the Legislature has incorporated to extend an advantage to the tenant must be interpreted in way which would fulfill the legislative intention. We would accordingly accept Mr. Mohanty''s further submission that the Controller has an obligation to decide, that to a case for eviction on the ground of non-payment of rent, the proviso has application or not. In the instant case, there is greater force in the contention because the default is only on one occasion and the delay was a few days beyond the permissible limit for the payment of rent. In the circumstances, before the authorities under the statute accepted the contention of the landlord that the Petitioner was a defaulter and therefore, liable for eviction, they should have considered whether the proviso applied.

In regard to the question of subletting, the evidence relied upon by the Controller is also somewhat shaky. In fact, parties seem not to have understood the ambit of the ground and the evidence requisite to establish it. There can be no dispute that if the subletting was prior to the coming into force of the Act, or that subletting had been done years before and the landlord had full knowledge of it, and yet was not feeling aggrieved, subletting may not be a ground for eviction now. The evidence on this score has not been properly considered.

We would accordingly vacate the appellate order and remit the matter to the appellate forum for re-disposal of the appeal. The appellate authority shall consider whether the proviso to Section 7(2) should be invoked and in case it is invocable he should give directions in exercise of the power conferred by the .proviso in the matter of payment of rent. So far as the question of subletting is concerned, the learned appellate authority shall, on the basis of the evidence already on record, decide whether there has been subletting after the Act came into force and in case a positive finding is recorded, consider the evictability of the Petitioner on that ground. In case it is found that subletting is an event long before the Act came into force, subletting may not provide a ground for eviction. It may also be open to the appellate authority to find out on the evidence whether subletting had been condoned by the landlord.

The writ application is accordingly allowed and the appellate order is quashed. The appeal shall be re-disposed of in accordance with law and keeping the directions indicated in the judgment in view. Costs shall abide the event.

B.K. Ray, J.

I agree.

Application allowed.