Bhagaban Das vs Radharaman Deb

P.K. Mohanti, J.—This is 3 Judgment-Debtor''s appeal arising out of an order u/s 47, Code of Civil Procedure.

The Respondent filed House Rent Control Case No. 166 of 1968 for eviction of the tenant-Appellant. The House Rent Controller dismissed the application for eviction on 8-1-1970. The learned Additional District Magistrate allowed the landlord''s appeal and directed eviction as per his decision dated 3-6-1970. The tenant-Appellant challenged the order of eviction by a writ petition in O.J.C. No. 758 of 1970. While dismissing the writ application, this Court extended the date of eviction by six months. Time allowed by this Court expired on 6-10-1971. Then the landlord-Respondent filed Execution Case No. 228 of 1971 on 20-12-1971 in the Court of the Munsif, First Court, Cuttack for eviction. On 13-9-1974 the tenant-Appellant filed an application u/s 47, CPC challenging the maintainability of the Execution Case. The objections raised u/s 47, CPC were overruled by the Executing Court. The appeal preferred by the tenant was dismissed by the, learned Additional Subordinate Judge, Cuttack.

Mr. G. Rath, the learned Counsel appearing in support of the appeal raised the following contentions:

(i) In the Execution petition the landlord sought to execute the order dated 8-1-1970 passed by the House Rent Controller. The House Rent Controller having rejected the application for eviction his order is not executable.

(ii) u/s 15 of the Orissa House Rent Control Act it is only the order of the House Rent Controller which is deemed to be a decree and is executable as such in the Court of the Munsif having local jurisdiction. In the present case the order of eviction having been passed by the appellate authority cannot be deemed to be a decree find hence it is not executable in the Court of the Munsif.

(iii) The time allowed by the High Court in O.J.C. No. 758 of 1970 for eviction expired on 6-10-1971. After that date the landlord in pursuance of a fresh agreement received the rent of the house up to the end of November, 1972. A fresh tenancy having been created the order of eviction cannot be executed.

Regarding the first contention, it appears from the judgment of the Court below that the order of the appellate authority was clearly mentioned in column 4 of the Execution petition which was accompanied by a certified copy of the order of the appellate authority. It also appears that the Respondent prayed for eviction of the Judgment-Debtor on the basis of the order passed by appellate authority. The Controller dismissed the application for eviction and his order was not at executable. The first contention is devoid of any merit.

As regards the second contention, reliance is placed in Section 15 of the Act which runs as follows:

The order of the Controller made u/s 7 directing the tenant to put the landlord in possession of the house, shall be deemed to be a decree and shall be executable as such in the Court of the Munsif within the local limits of whose jurisdiction the house is situate.

The Appellant''s contention is that it is only the order of the Controller made u/s 7 which is deemed to be a decree and executable in the Court of the Munsif and that as in the present case the order of eviction was passed by the Additional District Magistrate on appeal u/s 13 of the Act, it cannot be deemed to be a decree and no execution can be levied on the basis thereof.

"Controller" has been defined in Section 2 of the Act.

That section runs as follows:

In this Act unless the context otherwise requires ''Controller'' in respect of any area means the Sub-divisional Magistrate having jurisdiction over that area and shall include any Magistrate of the first class having jurisdiction over such area tu whom the Sub-divisional Magistrate may transfer any application for disposal.

In some cases, as in the present, the Controller may dismiss the landlord''s application for eviction. The appellate Court may reverse the same and order eviction. In such cases if the interpretation of the learned Counsel for the Appellant is to be accepted, the landlord cannot execute the appellate order of eviction and has no remedy under the statute despite success. The same would be the position where the Controller passes an order of eviction and an appeal against the same is dismissed. In such a case the original order of eviction merges in the appellate order and it is the appellate order which will be executed as the order of eviction. The original order of eviction loses its identity and has no independent existence in a case of affirmance also. The word "Controller" in Section 15 has been used in a generic sense to include the appellate authority as well. The opening words of Section 2 give sufficient indication that the word "Controller" would have a somewhat different meaning in different sections of the Act depending upon the subject or context.

Mr. Rath, the learned Counsel for the Appellant laid much stress on the words "under Section 7" occurring in Section 15 in support of his contention that it is only the order of the Controller made u/s 7 which is deemed to be a decree and is executable as such in the Court of the Munsif. His line of argument is that u/s 7 of the Act, it is the controller alone who can pass an order of eviction on the conditions specified therein and the powers under that section cannot be exercised by the appellate Court.

The powers of the appellate Court have not been specified in the statute. It is well settled that unless otherwise specified in the statute, the appellate Court shall have the same powers as conferred on the original Court. Section 7 lays down the powers of the Controller. The appellate Court shall, therefore, exercise the same powers while deciding the appeal. Consequently, the order of eviction passed by the appellate authority for the first time shall be deemed to be a decree and shall be executed as such in the Court of the Munsif as provided u/s 15 of the Act.

The third contention may now be noticed. Section 116 of the Transfer of Property Act provides:

Section 116. If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee, or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month according to the purpose for which the property is leased, as specified in Section 106.

Before the provisions of this section can be attracted, it is first necessary that the lessee after the determination of the lease remains in possession and secondly that the lessor or his legal representative either accepts rent or otherwise assents to his continuing possession. The tenant when he remains in possession after determination of the lease makes an offer by giving the rent to remain in possession on the same terms and when the rent is accepted by the lessor, he assents to his continuing in possession and that brings about a fresh contract of tenancy. In order that the acceptance of rent should, therefore, amount to an assent of the lessor to retain the lessee in possession of the property, it has to be established that the offer of rent was made on the express ground that the lessee intended to continue his lease and when the acceptance was made it was done with the full knowledge of the nature of the offer. This is a question of fact which would have to be determined from the circumstances of each case. In Ganga Dutt Murarka Vs. Kartik Chandra Das and Others, their Lordships held:

It is, however, well settled that where a contractual tenancy to which the rent control legislation applies has expired by efflux of time or by determination by notice to quit and the tenant continues in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy.

Admittedly the landlord accepted rent from the tenant after 6-10-1971 and up to the end of November, 1972. But mere acceptance of rent does not amount to creation of a fresh tenancy. If the landlord does not accept rent while the tenant is in occupation, he would lose the money unless he files a suit for recovery of rent. The tenant shall have to prove that the rent was accepted in pursuance of a fresh contract of tenancy having been created. Both the Courts below have found that there was no agreement between the parties for creation of a fresh tenancy. On such a factual finding, the third contention is not sustainable.

There is no merit in this appeal and it is dismissed with costs.