KRISHNA PRASAD LATH Vs. KAMALA GUPTA

JUDGEMENT

(1.) THESE two writ petitions arise out of two applications for eviction filed by the landlord of a building, one Umesh Prasad Gupta, under the Orissa House Rent Control Act, 1967 (hereinafter referred to as the 'Act'). The claim was inter alia on the ground of bona fide need under S. 7(4) of the Act. The need referred to was that the building was required by the landlord for occupation in connection with his agricultural operations. The need set up was denied by the tenants. During the proceeding, by way of an amendment, the tenants also introduced a plea that the title of the landlord having vested in the State, the landlord could not pursue the applications for eviction though the letting was admitted by the landlord to the tenants. Pending the proceedings before the House Rent Controller, the landlord died. According to the tenants, only some of the legal representatives were impleaded and the married daughters of the deceased landlord were not impleaded. Before the House Rent Controller, the tenants argued that the need set up was not bona fide and further argued that the applications were liable to be rejected on the ground that all the heirs of the landlord had not been impleaded. The House Rent Controller, on a consideration of the pleadings and the evidence adduced in the case, came to the conclusion that the bona fide need set up was established. It further took the view that in view of the legal position brought to its notice that a co- owner landlord is entitled to seek eviction from a tenant, the applications could not be rejected for non-joinder of the married daughters and that contention raised by the tenants was unsustainable. Finding the bona fide need established, the House Rent Controller ordered eviction. The said order was challenged in appeals before the Chief Judicial Magistrate, Bargarh, the Appellate Authority under the Act. The Appellate Authority also came to the conclusion that the application pursued by some of the legal heirs of the deceased landlord could not be dismissed on the ground that all the legal representatives, particularly the married daughters of the deceased landlord, have not been impleaded. The Appellate Authority, on a re-consideration of the relevant aspects, came to the conclusion that the bona fide need set up by the landlord stood established and the need had been rightly found by the House Rent Controller. Thus, the appeals were dismissed. The common decision of the Appellate Authority in the two appeals is challenged in these writ petitions by the respective tenants.

(2.) MR . Mukerji, learned Senior Counsel appearing on behalf of the tenants contended that the bona fide need set up by the original landlord, Umesh Prasad Gupta, was a need to have the building for his own occupation for the purpose convenience in cultivation of the agricultural property in the village and such a need set up by the landlord did not survive after his death or subsist after his death and the right to evict on that ground did not survive to his legal representatives. We find on a scrutiny of the orders of the authorities below, that no such contention was raised either before the House Rent Controller or before the Appellate Authority. Moreover, it was one of the legal representatives of the original landlord who was examined as P.W.3 and who spoke to the bona fide need of the landlord to occupy the building. Hence, the need found was the need after the death of the original landlord. That apart, this proceedings for eviction were started in the year 1985 and the landlord has already been kept at bay for more than 17 years. We also do not think that such a mixed question of fact and law should be permitted to be raised for the first time in this proceeding under Articles 226 and 227 of the Constitution of India. After all, on the facts of this case, the proposition sought to be canvassed by the senior counsel is not such a pure question of law that has only to be upheld by this Court. It is at best a mixed question of fact and law. In that situation, we are not inclined to permit the petitioners to raise that contention for the first time in this Court. We thus overrule that contention.

(3.) LEARNED counsel then contended that some of the co-owner landlords or some alone of the legal representatives of the original landlord cannot maintain an application for eviction or pursue the application for eviction and the failure to bring on record the married daughters of the deceased landlord is fatal to the maintainability of the application. Learned counsel referred to the decision in Mohammad Asgar Ali v. Narayan Mohapatra, ILR (1958) Cuttack 31; Smt. Chhoti Dei v. Gangadhar Misra, AIR 1953 Orissa 245; Biharilal v. Wasundarabai, AIR 1956 Madhya Bharat 35; and South Eastern Railways v. Satyanarayan alias Satyacharan Sahu, 1982(2) RCR(Rent) 362 (Orissa) (1982) 53 Cut LT 451 in support. Counsel contended that in any event, the other heirs should have been impleaded at least as opposite parties in the petition for eviction and the failure to do so should result in the dismissal of the petition. The authorities below have negatived this contention based on subsequent decisions and especially the decision of the Supreme Court in Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335. In the said decision, the Supreme Court has clearly held that a co-owner landlord can also maintain an application for eviction. According to the above decision, the co-owner landlords can maintain or continue the application for eviction and the non- impleading of all the heirs of the original landlord is not fatal. Learned Senior counsel also referred to the decision in Kanta Udharam Jagasia v. C.K.S. Rao, 1997(2) RCR(Rent) 693 (SC) : (1998)1 SCC 408 : (AIR 1998 SC 569). The said decision is of no assistance to the tenants in this case. The decisions prior to the decision in Sri Ram Pasricha's case (AIR 1976 SC 2335) (supra) need not detain us. None of those decisions could be of much assistance in view of the decision of the Supreme Court in Sri Ram Pasricha's case (supra). But, the decision of this Court in S.E. Railways' case (1985 (53) Cut LT 451) (supra) was rendered subsequent to the decision of the Supreme Court in Sri Ram Pasricha's case. On a scrutiny of the decision of this Court in S.E. Railways v. Satyanarayan alias Satyacharan Sahu, (1982) 53 Cul LT 451, we find that the decision of the Supreme Court in Sri Ram Pasricha's case (supra) was not brought to their Lordships' notice. Therefore, the said decision cannot be accepted as an authority for the proposition that a co-owner landlord cannot maintain an application for eviction against a tenant. On facts, we must also notice here that the widow and all the sons of the deceased landlord came forward and got themselves impleaded in the application for eviction and according to the tenants, the married daughters alone were not impleaded. The need was for residence. In the circumstances, considering the social ethos, it is clear that the married daughter resides in the house of her husband and not in her parental house in normal circumstances. Hence, the need is that of the widow and the sons. It cannot also be said in the circumstances that there was any lack of bona fides on the part of the landlord in not bringing on record the married daughters as petitioners in the application for eviction. In our view, both the house Rent Controller and the Appellate Authority have rightly come to the conclusion that the application for eviction cannot be dismissed on the ground that all the legal representatives of the deceased landlord have not been impleaded.