GANESHCHANDRA BANERJEE Vs. JANARDAN THAKUR

JUDGEMENT

(1.) THE petitioner is a tenant under opposite party-1 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 Rs. 90-00 at the end of the year and obtained receipt. He alleges that on 12-2-1967 he paid Rupees 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, 1967 (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 arrears of rent as required under Section 7 (3) of the Act. The tenant has filed this writ application for quashing the appellate order as haying been passed illegally in exercise of jurisdiction. On behalf of the landlord a counter has been filed stating that the tenant was a wilful 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 had 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 he was in arrear of rent. Even though in fact the tenant might be in arrear of rent, and yet he 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 (1971) 1 Cut WR 378 = (AIR 1971 Orissa 235), (Ramchandra Sahu v. Sanyasi Behera); (1971) 37 Cut LT 593, (Bijoy Kumar Mohanty v. Saraswati Subudhi) and ILR (1971) Cut 665. (Smt. Dei v. Bidyadhar Pradhan ). 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.) DESPITE the aforesaid conclusion in favour of the landlord Mr. Harichandan, however, contends that the concurrent finding of the authorities below that the petitioner is not a wilful defaulter cannot be supported. Section. 7 (2 ). Proviso lays down that-