VYSYARAJU KASIVISWANADHAM RAJU Vs. PROVAS CHANDRA PODDAR

JUDGEMENT

(1.) This is a petition under Article 133 of the Constitution for leave to appeal to the Supreme Court against the Division Bench decision of this Court an A. H. O. No. 2 of 1960 (reported in AIR 1962 Orissa 149), dismissing the suit of petitioner No. 1 (T. S. No. 143 of 1955 filed in the Court of the Munsif of Berhampur) for eviction of a tenant (opposite party respondent) from his house situated in Berhampur Town.

(2.) The plaintiff (petitioner No. 1) is admittedly the owner of the suit house and his title as owner is never under challenge. The opposite party was admittedly a monthly tenant. The rent of the suit house was raised to Rs. 120/- per month by the Orissa House Rent Controller acting under the provisions of the Orissa House Rent Control Act, 1050 (Act XI of 1951). After the expiry of the Act, the plaintiff brought a suit for eviction of the opposite party after giving him the usual notice to quit. He also claimed damages for use and occupation of the house, at the rate of Rs. 350/- per month from the date of expiry of the tenancy. The main controversy before the lower courts was regarding the validity of the notice to quit and quantum of damages to which the plaintiff was entitled. The learned trial Court held that the tenancy was determined by a valid notice and hence decreed the suit for eviction and assessed the quantum, of damages for use and occupation, of the house at Rs. 120/- per month. On appeal the learned District Judge, maintained the order of the trial Court. A second appeal against this appellate order of the district Judge (Pravas Ch. Poddar v. V. Kasi Biswanadham Rajoo, Second Appeal No. 220 of 1957 (Orissa)), was dismissed by a single Judge of this Court. Thereafter the matter came up before a Division Bench of this Court in A. H. O. No. 2 of 1960 (reported in AIR .1962 Orissa 149). That Bench while holding that the notice determining the, tenancy was valid, nevertheless came to the finding that in consequence of the coming into force of the new Orissa House Rent Control Act of 1958 (Act 31 of 1958) a suit in the Civil Court for eviction of a tenant from a house, was barred and the only remedy available was by way of an application) to the House Rent Controller as provided in Section 7 of that Act. There was keen controversy between the parties as to whether the new Act would apply to pending appeals also. The aforesaid Division Bench held that the definition of the expression 'tenant' in the said Act was expressly made wider so as to include even those tenants against whom though decrees for eviction has been passed by the lower Civil Court, appeals were pending on the date of coming into force of the Act. Hence the suit was dismissed.

(3.) The plaintiff himself had valued the suit in the court of first instance, both for purposes of Court-fee and jurisdiction at Rs. 2163-10-0. Hence, though the Division JBench decision of this Court is a reversing decision the valuation as given by the plaintiff will not satisfy the requirement of Sub-clause (a) of Clause (1) of Article 133 of the Constitution. Mr. Ramdas for the plaintiff however urged that leave to appeal may be granted under Sub-clause (b) of Clause (1) of that Article inasmuch as the Bench decision indirectly affected the plaintiff's right to take actual possession of the disputed property whose value is far in excess of Rs. 20,000/-. This is indeed the main controversy here.