SURAMA PATI Vs. BISWAJIT PATI

JUDGEMENT

(1.) The landlord in the house rent proceeding is the petitioners in this case. The tenant had approached this Court earlier in two successive writ applications and, therefore, this is the third occasion when the matter has come to this Court.

(2.) The brief facts necessary for the disposal of this writ application may be stated as follows:- The present petitioners filed an application for eviction of the present opposite party No. 1 on the ground of wilful default in the matter of payment of rent and other grounds. The opposite party No. 1 (tenant) was debarred from contesting the case before the House Rent Controller under S.7(3) of the Orissa House Rent Control Act (in short 'the Act') on the ground that he did not deposit the arrear of tent admitted by him. The said Order was challenged by the tenant-opposite party in C. J. C. No. 620 of 1987 before this Court. In the meantime the House Rent Controller passed the final order of eviction which order evidently is appealable under the Act. This Court while disposing of the writ application observed that order of the House Rent Controller debarring the petitioner from contesting the proceeding could be challenged in appeal against the order of eviction before the appellate court and therefore, without interfering with the order further observed that the petitioners may urge all grounds including the one mentioned above before the appellate authority while challenging the order of eviction. The tenant thereafter filed appeal before the House Rent Controller (H.R.C. Appeal No. 1/87). Before the appellate authority an application was filed by the tenant-appellant to recall P.W. 1 for cross-examination and to permit him to adduce evidence on the ground that the trial Court illegally debarred him from contesting the case under S. 7(3) of the Act. The appellate Court treated that application as if it is a prayer for preliminary hearing of the appeal and took the view that the appeal could not be heard piece meal. He, therefore, rejected the said application of the tenant-appellant. Against the said order of the appellate authority, O. J. C. No. 2162 of 1987 was preferred by the tenant. At the stage of admission of the said writ application, this Court found the impugned order could not be sustained for the reason that one of the grounds taken in the appeal being that the tenant was illegally debarred under S. 7(3) of the Act to contest the proceeding, the same should have been decided by the appellate authority in the appeal itself and while doing so should have considered the application for cross-examination of the landlord's witnesses already examined and permit him to examine other witnesses of his own. This Court further directed that if after hearing of the appeal on merits, the appellate authority comes to a conclusion that the House Rent Controller was not justified in law in debarring the tenant from contesting the case before him, the appellate authority should proceed to give opportunity to the tenant to cross-examine the witnesses of the landlord already examined and permit him to examine the witnesses of his own and may direct such further hearing which may include further opportunity to the landlord to adduce further evidence. The order of the appellate authority rejecting the application was, therefore, considered to be premature and was quashed. The appellate authority, thereafter, by the impugned order considered the legality of the order passed by the House Rent Controller debarring the tenant from contesting the proceeding and has passed the impugned order holding that the order of the House Rent Controller under S. 7(3) of the Act is not in accordance with law. The landlord has challenged the said order as well as the order passed subsequent thereto by the appellate authority. The ordering portion of the said appellate order appears to us as confusing. Having held that the trial court was wrong in debarring the tenant from contesting the case, conclusion was that the tenant should be permitted to adduce evidence in support of his case. Accordingly, the appeal was allowed on contest. After allowing the appeal, the appellate court had no further jurisdiction to post the appeal for further hearing. The appellate court directed the landlord to produce P.W. 1 for cross-examination by the tenant whereafter the tenant-appellant was to adduce evidence of his own. By subsequent order dated 11-11-1988, the appellate court expunged the evidence of PW 1 saying that as PW 1 was not produced, his evidence can in no way be taken into consideration and then called upon the tenant-appellant to produce witnesses from his side. The tenant-appellant declined to examine any witnesses. Since the ex parte order of eviction was passed on the evidence of PW 1 which has now been expunged by the appellate court, it found that the order of eviction can no more stand and, therefore, set aside the same. Against the order of the appellate authority allowing the appeal and directing witnesses to be produced for cross-examination and permitting the tenant to adduce further evidence in the case (Annexure-13) and the subsequent order passed by the appellate court setting aside the ex parte order of eviction, the petitioners have filed this application for quashing of the same.

(3.) The learned appellate court has held that the order debarring from contesting the case was erroneous because the House Rent Controller while passing the said order did not carefully see the averments made in the written statement and has relied on extraneous matters for coming to a conclusion that the tenant was in arrears of rent. Reliance has been placed by the appellate court on a case decided by this Court in Smt. Renuka Padhi v. The Chief Judicial Magistrate, Ganjam, Berhampur, reported in (1987) 63 CLT 602 which has been interpreted to have led the law that the House Rent Controller while passing an, order under S. 7(3) of the Act is not entitled to look into any other matter except the written statement filed by the tenant. On a close reading of the said decision, we are unable to agree that the law has been so laid by this Court. Their Lordships in the aforesaid decision while interpreting the clause "as admitted by him" appearing in S. 7(3) of the Act expressed the view that the said clause refers to "as admitted in the proceeding" before the Controller. Their Lordships observed that the aforesaid provision does not contemplate an enquiry into the matter at that stage, and therefore, when a tenant denies the existence of any arrear of rent or otherwise does not admit the fact of existence of arrears of rent, it is not open to the Controller to enter into an enquiry and decide that the tenant is actually in arrears of rent and thereupon call upon the tenant to either remit to the landlord the amount of arrears of rent or deposit the same with the Controller. In the facts of that case, the tenant in her written statement denied that she is not in arrears at all. Therefore, the Court held that no further enquiry was warranted in that case and the Controller has missed the denial of the tenant in the written statement and should not have passed an order debarring the tenant from contesting the case. In the facts of the present case, as has been argued by the learned counsel for the opposite-party-tenant he denied in his written statement that he was a wilful defaulter in the matter of payment of rents. From such denial the learned counsel appearing for opp. party wanted to make out a contention that as in the aforesaid case reported in (1987) 63 CLT 602 (Smt. Renuka Padhi v. The Chief Judicial Magistrate, Ganjam, Berhampur), the tenant in this case also denies his liability to pay rent. This argument ignores the distinction between the default in the matter of payment of rent and admission of the liability to pay arrears of rent. The tenant becomes evictable on proof of the allegation of wilful default in the payment of rent. But S. 7(3) of the Act wants a tenant to pay or deposit arrears of rent as admitted by him. If the landlord refused to accept rent for which reason the rent could not be paid by the tenant, it would not amount to wilful default within the meaning of S. 7(2) of the Act, for which reason he may not be evicted on that ground. But, the tenant in such a case will still be in arrears of rent. The aforesaid sub-section (3) of S.7 gives absolute liberty to the tenant either to admit or deny as to whether he is in arrears of rent. The tenant in this case has not stated in the written statement that he is not in arrears of rent. On the contrary, he filed an application before the Controller praying for time to deposit the arrear rent. That apart, the Controller also took into account the fact that the rent remitted by the tenant was not accepted by the landlord for which reason this rent has not been paid and is outstanding as arrears. As already stated, the House Rent Controller may not be justified in making any investigation or inquiry whatsoever as to whether the rent is in arrears because it is the admission of the tenant which alone would make him liable to deposit the arrears tent pursuant to the requirement of S. 7(3) of the Act. Application of the tenant before the House Rent Controller praying for time to deposit the arrear rent amounts to a clear admission on his part, the order of non-deposit of rent would visit the consequences envisaged in that section. We are, therefore, of the view that there was enough justification for the House Rent Controller to debar the tenant from contesting the proceeding under S. 7(3) of the Act, as the tenant admitted to be in arrears of rent and did not deposit the same as required by S. 7(3) of the Act.