(1.) THIS second appeal is by the plaintiff against the appellate judgment of the Additional Subordinate Judge, Cuttack, reversing the judgment of the 2nd Munsif of Cuttack and dismissing his suit for ejectment of the respondent -defendant from a house while decreeing his suit for arrears of rent. The second appeal was first heard by a Single Judge of this Court who, however, referred it to a Division Bench in view of some observations in - - 'Banchhanidhi Samantari v. Lachminarain Agarwala', AIR 1950 Orissa 1 (A) regarding the construction of Clause (a) of Section 5, Orissa House Rent Control Act, 1947.
(2.) THE appellant is the owner of a house in Balubazar, Cuttack town, and the respondent was a monthly tenant of the appellant residing in the house. The appellant, alleging that the rent due for the house was not paid from July, 1943 till the end of April, 1946, sent a registered notice on 23 -1 -46 terminating his tenancy and then instituted a suit for his ejectment and also for recovery of arrears of rent. The defendant's plea was that he had paid rent till the end of March, 1945 and that he was willing to pay the arrear rent due. The trial Court held that the total arrear rent due to the plaintiff was only Rs. 104/ - from April, 1945 till the date of the institution of the suit (April 1946) and passed a decree for that amount and also decreed the ejectment of the defendant holding that he had been served with a valid notice to quit and that the suit was not incompetent for want of an exemption order from the House Rent Controller. On appeal, the learned Additional Subordinate Judge while maintaining the trial Court's decision as regards the amount of arrear rent due, dismissed the suit for eviction holding that a suit for that purpose was not maintainable inasmuch as the plaintiff had not obtained an exemption order from the House Rent Controller as required by proviso 2 to Section 5, Orissa House Rent Control Act, 1947.
(3.) SECTION 5 of that Act is as follows: