MANAKARANI HAZRA Vs. MOHINDER SINGH JAGGI

JUDGEMENT

(1.) DECEASED Jaharilal was the owner of a residential house at Mangiabag bearing holding No. 103 in Ward No. 22 of the Cuttack Municipality. The house at present bearing Holding No. 120. He died on 16th of September, 1963 leaving behind the petitioners as his sole heirs. Jaharilal had let out the said premises to Mahindra singh Jaggi (Opp. 1) on a rental of Rs. 70 per month with effect from 16-8-1952 on the basis of a written agreement. The case of the petitioners as narrated in the writ application runs thus: opposite party No. 1, deliberately did not pay the rent of the premises from the third month of the tenancy. On the other hand, he filed an application before the House Rent Controller in House Rent Control Act case No. 11 of 1953 for fixation of fair rent. The Controller determined the rent at Rs. 33 per month. In appeal, it was raised to Rs. 60 per month by an order dated 24-1-1955. On 7th of November 1952, O. P. 1 removed the wall in between the two bed rooms of the building and converted the rooms into a shop room and opened a shop therein, in contravention of the terms of the tenancy, Jaharilal instituted Money Suit no. 96 of 1953 in the court of the Munsif, First Court, Cuttack for recovery of compensation for damages caused to the house. The suit was decreed with costs. On 28th of December, 1953. O. P. No. 1 without the knowledge and consent of Jaharilal made further additions and alternations. He demolished certain portions of the house, fixed collapsible gates and windows and caused heavy damages to the house. Jaharilal filed Title Suit No 6 of 1954 in the Court of the Munsif, First court, Cuttack for injunction restraining the O. P. No. 1 from causing further changes and damages to the house and for recovery of compensation. That suit was decreed with costs. O. P. No. 1 willfully defaulted to pay rent. Jaharilal filed Money Suit No. 71 of 1955 in the court of the Munsif, First Court. Cuttack for recovery of house rent from november 1952 to February. 1953. It was decreed with costs. Jaharilal instituted Title Suit No. 238 of 1955 in the court of the Munsif, First court. Cuttack against O. P. No. 1 for eviction and recovery of house rent and damages. As before the conclusion of the case, the Orissa house Rent Control Act (hereinafter called the Act) had come into force, the prayer for eviction was not held to be maintainable in civil court and accordingly only a decree for recovery of rent and cost was passed Again jaharilal had to institute Money Suit No. 664 of 1958 in the court of the munsif, Second Court, Cuttack for recovery of house rent The Munsif decreed the suit but did not allow costs holding that the tenant was not to blame for non-payment of house rent. Jaharilal preferred Money appeal No. 40 of 1959 against the order refusing cost and the appeal was allowed on 12-8-61. Jaharilal filed an application before the House rent Controller, Cutlack in H. R. C. Case No. 8 of 1959 for eviction of the o. P. No. 1 on grounds that the O. P. No. 1 was a wilful defaulter in making payment of rent, had damaged the house, used it for purpose other than that for which it was let out without the knowledge and consent of the landlord, materially impaired the value and utility of the house and the landlord required the house in good faith for the occupation of himself and members of his family. The application for eviction was allowed on 31-12-62 by the House Rent Controller. O. P. No. 1 was directed to put the landlord in possession of the house within 15 days of the receipt of the order. O. P. No. 1 preferred an appeal in House Rent Control Appeal No. 4 of 1963 before the A, D. M. (Executive)Cuttack. He by his judgment dated 15-7-1963 allowed the appeal and set aside the order of' eviction passed by the House Rent Controller. Though in the petition for eviction, there was no prayer for fixation of fail' rent, the A. D. M. (Ex.) fixed the rent at Rs. 80 per month payable from 1-8-1963. Against this order, Jaharilal filed O. J. C. No. 298 of 1963. The writ application was withdrawn for filing a review before the a. D. M. The review application was dismissed by the A. D M. on 18-21964. Thereafter, the present writ application has been filed.

(2.) OPPOSITE Party No. 1 filed a counter. So far as the various litigations and facts referred to in the writ application, there is not much variance between the parties, though different interpretations and construction? are seven to those facts. The substantial assertions made in the counter are that the house was not originally rented only for residential purpose. The alterations and changes in the structure were admitted. But it was said that the alleged alterations made by him to the building were essentially for convenience of the O. P. No. 1 and that the said alteration greatly improved the value of the building and had not deteriorated its utility O. P. No. 1 asserts that he was not a defaulter much less a wilful defaulter he deposited all the arrear rents in court on the 13th of January 1959 prior to the filing of application for eviction on 31-1-1959. The petitioner's case that he required the house bona fide for his own purpose is denied.

(3.) ON 18-1-1967, the petitioner No. 1 filed an application for amendment of the writ petition slating therein that Jaharilal had sent a notice dated 12-8-1958 by registered post through his advocate Sri D. N. Biswal calling upon O. P No. 1 to vacate the premises by the 15th December 1958 and before the 16th of december, 1958 or by such other date expiring with the end of the month of tenancy. A counter to this petition was filed on 1967 stating that though O. P. No. 1 received some notice of eviction some time in November, December, 1958, the o. P. No. 1 never received a notice in terms of Section 106 of the Transfer of property Act. The matter was heard on 14-12-1967. The petitioners did not press that amendment petition which was accordingly rejected.