GANESHCHANDRA BANERJEE (TENANT) Vs. SRI JANARDAN JEU THAKUR BY MARFATDAR SRIDHAROBANDRA KAR (LANDLORD) AND ANR.

JUDGEMENT

(1.) THE Petitioner is a tenant under opposite party since 1940 in respect of a house in Balasore town on a monthly rent of Rs. 7.50. Petitioner 's case is that from 1958 the tenancy was by agreement converted into an annual one and the Petitioner used to pay Re. 90 -00 at the end of the year and obtained receipts. He alleges that on 12 -2 -1967 he paid Rs. 100 -00 to the mother of opposite party No. 1. Rs. 90.00 towards the rent for the year 1965 and Rs. 10 -00 towards the rent for the 1966. On 14 -8 -1967 the Petitioner remitted Rs. 80.00 towards rent for 1966 which was refused by opposite party No. 1. On 4 -10 -1967 opposite party No. 1 filed the petition for eviction under Section 7(1) and (4) of the Orissa House -Rent Control Act, ]967 (hereinafter to be referred to as the Act), on the grounds that the tenant was in arrears of rent and the landlord required the house in good faith for his own occupation. The landlord 's application for eviction was dismissed by the House Rent Controller. Both the grounds for eviction were not accepted as having been established. In appeal, the learned A.D.M. (J) agreed with the Controller that the two grounds for eviction were not established. He, however, directed eviction as the tenant had not deposited the admitted arrear rents as required under Section 7(3) of the Act. The tenant has filed this writ application for quashing the Appellate order as having been passed illegally in exercise of jurisdiction. On behalf of the landlord a counter has been filed stating that the tenant was a willful defaulter and the application for eviction should be allowed on that ground.

(2.) THE concurrent finding of the authorities below that the house is not required in good faith for the occupation of the landlord is not disputed before us Mr. Panda contends that the finding of the Appellate authority that the tenant would be precluded from defending the proceeding under Section 7(3) is without jurisdiction. The contention is sound on two grounds. Firstly, such a plea was not taken before any of the authorities below. The point was not canvassed and it is for the first time in the Appellate judgment an order was passed debarring the tenant from defending the proceeding as the admitted arrears of rent had not been paid. If this point bad been taken before the House Rent Controller, it would have been within the jurisdiction of the Controller to direct the tenant to pay the rent and it is only in case of default that the tenant would have been precluded from defending the proceeding. The more formidable point, however, is that it is concluded by a series of decisions of this Court that Section 7(3) applies only to cases where in the eviction proceeding itself the tenant admits that be was in arrear of rent. Even though in fact the tenant might be in arrear of rent, and yet be does not admit to have been in arrears, he cannot be debarred from defending the proceeding. It is not necessary to re -examine the law on the point see Ramchandra Sahu v. Sanyasi Behera, 1971 (1) C.W.R. 378 Bijoy Kumar Mohanty v. Saraswati Bubudhi : 37 (1971) C.L.T. 593 and Srimati Dei alias Dasi v. Bidyadhar Pradhan, I.L.R. 1971 Cutt 665. The view taken by the A.D.M. (J) on this point is clearly untenable and his order cannot be supported on that ground.

(3.) TILL 1968 the tenant was paying monthly. Subsequently thereto the payment appears to have been made about a year after. The tenant accordingly set up a plea that the monthly tenancy was converted into a yearly tenancy. This theory was negatived by the Appellate authority on the ground that the yearly tenancy could not be created except by a registered instrument. Mr. Panda rightly did not assail this elementary legal concept. He, however, contended that it is open to the parties to enter into an agreement that the monthly rent would be paid on a particular date and sometimes more than a year after. In such a case the onus is on the tenant to plead and prove when such an agreement was entered into. In this case the tenant has not adduced any proof that there was such an agreement. If there was no such agreement, the fact that in respect of monthly tenancy, the tenant paid at long intervals of time, sometimes covering more than a year, by itself establishes that the tenant was grossly negligent in discharging his obligation to pay rent which is the consideration for occupation of the house. This callous indifference on the part of the tenant is nothing but willful and such a tenant is not entitled to any protection. The facts would show that for the year 1963.64 the tenant paid rent of Rs. 180.00 on 18 -3 -1966 (Ex. A/I). He advanced a case that on 18 -2 -1967 he paid Rs. 100. 00 out of which Rs. 90/ - was towards rent for the year 1965 and Rs. 10/ - towards rent for 1966. The lower Appellate authority did not accept this as being established. On 5 -7 -1967 by Ext. 1 the landlord sent a notice to the Petitioner to pay rent for 2 years and 7 months amounting to Rs. 232.50 and to vacate the house by the end of July, 1967. On 14 -8 -1967 Re. 80.00 was remitted towards rent for 1966 which was refused by the landlord and the application for eviction was filed on 4 -10 -1967. The aforesaid catalogue of facts establish beyond reasonable doubt that the tenant deliberately avoid to pay rent and enjoyed the house without quid pro quo. Hence the tenant is liable to eviction on this ground. Both the authorities below exercised their jurisdiction illegally in not ' keeping the law and the relevant facts in view and their order therefore is liable to be quashed by issue of a writ of certiorari.