SURESH KUMAR AGRAWALA Vs. CHIEF JUDICIAL MAGISTRATE

JUDGEMENT

(1.) THE petitioners assail the judgment dated 6.4.1995 passed in H.R.C. Case No. 17 of 1986 by the Learned Judicial Magistrate, First Class, Sambalpur holding the petitioners as wilful defaulters which was confirmed by the Learned Chief Judicial Magistrate, Sambalpur in H.R.C. Appeal No. 1 of 1995 dated 28.11.1997.

(2.) THE brief fact of the petitioners' case bereft of unnecessary details is that the opposite party No. 3 filed H.R.C. Case No. 17 of 1986 in the Court of the Learned Judicial Magistrate, First Class, Sambalpur under Section 7(2)(i) of the H.R.C. Act, 1967 for eviction of the father of the petitioner on the ground of wilful default in payment of rent from October, 1985 to May, 1986. The H.R.C. case was decreed ex parte against the father of the petitioners. However, the petitioners having come to know about the ex parte decree, filed misc. case No. 1 of 1987 under Order 9, Rule 13, CPC to set aside the ex parte decree. The ex parte order was recalled and the petitioners filed their written statement contending inter alia that on the death of their father, Gyaniram Agarwal, the tenancy got closed as the original tenant having died, the H.R.C. case is not maintainable against them. It was also contended that before the ex parte order was set aside, the payment of arrear rent was regularized in October, 1987 even after the death of late Gyaniram Agarwal. It was the specific case of the writ petitioners before the H.R.C. Court that no time was fixed for payment of rent from month to month and rent was being paid sometimes at intervals of 2 -3 months and sometimes at an interval of six months or even a year which was being accepted by the landlord, the opposite party No. 3, without any objection and as such the petitioners pleaded that the landlord having accepted the rent at intervals without objection, cannot turn around and plead that the petitioner's father was a wilful defaulter in payment of rent and as such was liable to be evicted.

(3.) THE Learned Judicial Magistrate, First Class -cum -House Rent Controller, Sambalpur on consideration of the evidence on record held that the H.R.C. petitioner is the Karta of his family and he was managing the case house and, as such, his petition for eviction filed against the opposite parties in respect of the case house is maintainable in law. On the question of tenancy of the writ petitioners, heirs of the original tenant, the Learned House Rent Controller found from the evidence that they have admitted their tenancy of the case house by paying arrear rent on intervention of the Court. They had also filed a petition to set aside the ex parte order passed against their father and the -same was allowed in their favour. The Controller further held that they had not raised any point that they were trespasser in respect of the case house after the death of their father in the execution proceeding. They were found to be tenants under the H.R.C. petitioner. Similarly, the learned House Rent Controller has recorded a finding that the writ petitioners and their late father were in arrear of rent in respect of the case house from October, 1985 to May, 1986 at the time of filing of the case. Even after filing of the case, the opposite parties -writ petitioners were in wilful default in payment of rent. The Learned Controller observed that no document was produced in respect of payment of rent to the H.R.C. petitioner at intervals of three months, six months or even a year, as claimed and, as such, their contention that the rent was paid once in three months to six months cannot be accepted. The House Rent Controller found that the writ petitioners were in wilful default of payment of rent of the case house and, as such, directed the writ petitioners, the tenants to vacate the possession of the house and to deliver its possession to the H.R.C. petitioner.