S. Ziaullah and Others vs Srimati Kiranabala Devi and Others

G.K. Misra, C.J.—Opposite parties 1 to 4 are the landlords of the disputed house. It was let out to the tenants (Petitioners) on a monthly rental of Rs. 225/-. H.R.C. Case No. 69 of 1973 was filed by the landlords for the eviction of the tenants on several grounds of which eviction u/s 7(2)(i) of the Orissa House-Rent Control Act, 1967 (hereinafter to be referred to as the Act) was one. After objection (written statement) was filed by the tenants, the landlords filed an application u/s 7(3) of the Act that the tenants should be directed to pay the admitted arrears of rent failing which they would not be entitled to contest the proceedings. The House Rent Controller (hereinafter to be referred to as the Controller) held that the tenants admitted in the written statement, that there were arrears of rent from 1-3-1973 till the filing of the application in January, 1974. He accordingly directed the tenants to pay the admitted rent for the aforesaid period at the rate (If Rs. 225/- per month by 30th of March 1974 failing which they were debarred to contest the case. H.R.C. Appeal No. 18 of 1974 filed by the tenants u/s 13 of the Act was dismissed by the Chief Judicial Magistrate on 11-10-1974. The writ application has been filed by the tenants under Articles 226 and 227 of the Constitution for quashing the order of the Controller (Annexure-3) dated 14-3-1974 and the order of the Chief Judicial Magistrate (Annexure-4) dated 11-10-1974.

Mr. Mohanty for the Petitioners advanced two contentions:

(i) The Controller and the appellate authority exercised their jurisdiction illegally in construing the written statement as having admitted the existence of arrears of rent from 1-3-1973.

(ii) Under the Act and the House Rent Control Rules, 1968 (hereinafter to be referred to as the Rules) the Petitioners are not required to file written statement and even if a written statement had been filed the same should not have been looked into.

Both the contentions required careful examination.

To appreciate the first contention, Section 7(1), (2)(i), and (3) may be extracted:

Conditions under which tenant can be ejected-(1) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf.

(2) If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application is satisfied

(i) that the tenant has not paid or tendered the rent due from him in respect of the house within thirty days after the expiry of the time fixed in the agreement of the tenancy with the landlord for payment of rent or in the absence of any such agreement by the last day of the month next following that for which the rent is payable or

(ii) xx xx

(iii) xx xx

(ix) xx xx

he shall make an order directing the tenant to put the landlord in possession of the house and if the Controller is not so satisfied, he shall make an order rejecting the application:

Provided that in any case falling under Clause (1) if the Controller is satisfied that the tenant�s default to pay or tender rent was not wilful, he may give the tenant a reasonable time not exceeding fifteen days to payor tender the rent due from him to the landlord up to the date of such payment or tender and on such payment or tender the application shall be rejected.

(3) When an application is made for the eviction of any tenant on the grounds specified in (i) of sub-section by him up to the date of such remittance to the landlord or deposit the same with Controller failing which he shall not be entitled to contest the proceedings.

The scheme of the section is that the landlord can seek eviction on the ground of non-payment of rent if the same has not been paid or tendered within the time fixed in Sub-section (2)(i) and to that effect the landlord is to file an application under Sub-section (1). If the tenant admits that he is in arrears of rent, the Controller can be direct him to pay the admitted arrears failing which he would be debarred from contesting the application of the landlord for eviction.

The proviso to Sub-section (2) prescribes that if the default of the tenant is not wilful, he may be granted a reasonable time not exceeding fifteen days to payor tender the rent due.

It is under Sub-section (3) of the Section 7 that the application was made by the landlords after written statement was filed.

We would now notice the material averments in the application u/s 7(1)(Annexure 1) and the written statement (Annexure 2). Paragraph 6 in Annexure 1 runs thus:

That even though the tenant opposite party No. 1 admits the tenancy and is still occupying the therein he has wilfully defaulted to pay the monthly rent since December, 1968 till upto date and having failed to pay the monthly rent inspite of demand the Applicants have been compelled to file Money Suit No. 305 of 1973 in the Court of the Subordinate Judge, Cuttack against the opposite party No. 1 for recovery of monthly rent from 1-6-1970 to 31-5-1973 as the claim to previous rent was barred by limitation on the date of the said suit.

In paragraphs 4 and 6 of Annexure 2, reply was given as follows:

xx x According to the compromise O.P. No. 1 is carrying his business from 1st March, 1973 and the Petitioners also relinquished their claim to the arrear rent from the date of communal riot till the date or reopening of his business i.e. 1-3-1973.

xxx

That the facts stated in paragraph 6 of the petition are not wholly correct. It is incorrect to say that O.P. No. 1 is holding his shop and wilfully defaulted payment of� monthly rent since December, 1968 inspite of repeated demands. O.P. No. 1 is not a wilful defaulter and the Petitioners are not entitled to an order of eviction on that ground. It is correct to say that the Petitioners have filed Money Suit No. 305 of 1973 in the Court of "the Subordinate Judge, Cuttack against O.P. No. 1 but the O.P. No. 1 is not inclined to make any submissions relating to the merits of the suit.

It is clear from the written statement that the Petitioners stated that rent of the disputed house had been relinquished by the landlords in a settlement till 1-3-1973. With regard to the period from 1-3-1973 onwards till the date of filing of the application the Petitioners did not aver that rent had been paid. At any rate, there is no specific denial in the written statement of the averment in application u/s 7(1) that the Petitioners were in arrears. On the contrary, they pleaded that they were not wilful defaulters. That means they admitted that they were defaulters from 1-3-1973 on wards though the default was not wilful. The Controller and the appellate authority were therefore, fully justified in concluding that the Petitioners admitted in the written statement to have been in arrears of rent from 1-3-1913 onwards. They placed correct construction on the written statement. On Such a finding Section 7(3) of the Act has full application and the authorities below exercised their jurisdiction properly in directing the Petitioners to pay the arrears of rent from 1-3-1973 till January, 1974 on failure of which they were debarred from contesting the proceedings. This conclusion is sufficient to dismiss the writ application.

Mr. Mohanty, however, urges that the Petitioners were under no obligation in law to file the written statement and as such the written statement should not be looked into and the admission therein should be ignored and that if existence of arrears of rent was not specifically denied in the written statement the same cannot be taken to have been admitted by application of Order 8 Rule 5, Code of Civil Procedure.

The aforesaid contention raises the following questions of law:

(i) Whether CPC applies to enquiries under the Act and the Rules.

(ii) Whether the Act, Rules and CPC prohibit a written statement being filed if summons is issued for final disposal of the case.

(iii) Even if a written statement is not required to be filed, whether the same would be ignored even if filed.

Section 12(1) of the Act prescribes that an enquiry under the Act shall be of a summary nature and shall, so far as practicable, be held in accordance with the provisions contained in the Code of Civil Procedure, 1908. An enquiry under the CPC starts immediately after the plaint is filed. In Sarathi v. A.D.M (J) Cuttack O.J. No. 1082 of 1973 dd. on 12-5-1975 the scope and ambit of Section 12(1) of the Act has been fully explained. Therein it was stated that the provisions of the CPC would apply to enquires under the Act unless there was any inconsistency. In case of repugnancy the provisions of the Act and the Rules would prevail and to that extent the CPC would have no application.

Order 8, Rule 5, CPC lays down that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the Defendant, shall be taken to be admitted except as against a person under disability provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

There is nothing in the Act and Rules which would run counter to Order 8, Rule 5, Code of Civil Procedure. There is, therefore, no difficulty in applying Order 8, Rule 5 in construing a written statement filed in a proceeding under the Act.

To get out of this difficulty it is contended that filing of a written statement is not obligatory under the Act and the Rules. As has already been stated, Section 7(2) of the Act prescribes that the Controller would pass an order of eviction only after giving the tenant a reasonable opportunity of showing cause against the application filed by the landlord.

Under Rule 8, the application u/s 7(1), shall be made in Form A in duplicate duly signed and verified.

Under Rule 5, the Controller shall cause to be served on the tenant a notice in Form C together with a copy of the application in Form A which embodies the grounds of eviction. A copy, of the notice would also be served on the landlord. After hearing both the parties on the date of hearing the Controller shall make an order of eviction or dismiss the application.

Form C may be extracted:

Form �C�

Form of Notice (See Rule 5)

Before

The House Rent Controller at ...

H.R.C. Case No _______of 19

To

... of ... (tenant)

Whereas Shri/Shrimati ... has filed an application against you a copy of which is enclosed herewith, you are hereby summoned to appear before me in person or through your authorised agent or by a Pleader duly instructed and able to answer all material question relating to the application or who shall be accompanied by some Personable to answer such questions on the day of ... 19 ... at ... A.M./P.M. to meet the points raised in the application for the final disposal of the case. You must be prepared to produce on that day all the witnesses upon whose evidence and all the documents upon which you intend to rely in support of your case.

Take notice that in default of your appearance on the date and time above mentioned, the case shall be heard and decided in your absence.

Signature of the Controller or any subordinate officer authorised by him in this behalf.

It would appear that there is no clear direction in Form C that a written statement is to be filed. But the tenant is directed to appear and answer all material questions relating to the application to meet the points raised therein for the final disposal of the case. He shall also produce witnesses and documents In support of his case. Answer in material particulars to the questions raised in the application for eviction may be in writing or orally. When the answer is given in writing it is nothing but a written statement.

Mr. Mohanty lays stress on the expression� final disposal of the case� and on the absence of any direction for filing written statement. He contends that under the CPC summonses are issued for -final disposal of the case wherein no written statement is filed.

Reliance is placed by him on Order 5, Rule 5, CPC as amended in Orissa, which runs thus:

The Court shall determine at the time of issuing the summons whether the summons shall be (1) for the settlement of issues; or (2) for the Defendant to appear and state whether the contests the claim or not and, if he contests to receive directions as to the date on which he shall file the written statement, the date on which the suit shall be tried and other necessary matters, and, if he does not contest, for the final disposal of the suit at once; or (3) for the preliminary disposal of the suit; and the summons shall contain directions accordingly.

Provided that in every suit heard by the Court of Small Causes, the summons shall be for the final disposal of the suit.

It would be apparent from Order 5, Rule 5 that summons would be issued for the final disposal of a case where the Defendant does not want to contest. Where, however, he would contest he shall file the written statement on the date fixed for his appearance. It is only in suits heard by the Court of Small Causes that the summons shall be for the final disposal of the suit. The language of Order 5, Rule 5 is plaint and makes express provision where no written statement need be filed and the case is for final disposal.

From the aforesaid provisions a converse inference would not follow. - Order 5, Rule 5 does not bar filing of a written statement even in cases where the Defendant does not want to contest or where the case is of a small cause nature. In practice, in almost cent percent of cases written statements are filed even in uncontested cases and in small cause suits. Where the Defendant does not want to contest he may make an averment in the written statement as to what matter he would not contest and thereby he would absolve himself from costs. There is, therefore, no substance in the contention of Mr. Mohanty that CPC prohibits filing of written statements in cases where summonses are issued for final disposal.

In Form C summonses are issued for final disposal and clear instruction has been given that the opposite party would be ready to answer material questions and would come with evidence both oral and documentary. Notice, therefore is given clearly for the purpose of contest. With such a notice the expression final disposal as used in Order 5, Rule 5 cannot carry the same meaning as in Form C. In the latter case the expression �for the final disposal" carries within its sweep the concept of filing written statement clearly stating the defence in reply to the averments of the grounds of eviction made in the application in Form A. We, therefore, find no substance in the contention of Mr. Mohanty that under the Act and the Rules no written statement is to be filed. Filing of a written statement is obligatory in a proceeding under the Act as the grounds of eviction involve substantial questions relating to civil rights which cannot be determined without knowing the case of the opposite party.

The view that we have taken is reinforced by the language used in Section 7(2) of the Act wherein it has been prescribed that the Controller would give the tenant a reasonable opportunity of showing cause against the application u/s 7(1). The expression �reasonable opportunity of showing cause� has got well known connotation. It embodies the principles of natural justice. An essential feature of the principles of natural justice is that the opposite party would be given an opportunity of stating his case. It is, therefore, obligatory on the part of the Controller to call upon the tenant to file his written statement in reply to the averments in the application for eviction.

Even assuming that filing of a written statement is not obligatory, the Controller would act illegally in exercise of jurisdiction if he ignores the written statement filed by the tenant. There being no prohibition under the Act, Rules and CPC for filing of written statements in cases where summonses are issued for final disposal, it is open to the tenant to file a written statement if he so chooses. If such a written statement is filed it would be governed by the law of pleadings as embodied In Order 8, Rule 5, Code of Civil Procedure. Judging from this point of view also the written statement cannot be ignored.

Mr. Mohanty concedes that there was no specific denial in the written statement of the existence of arrears of rent from 1-3-1973 onwards. On the application of Order 8; Rule 5, CPC Petitioners shall be taken to have admitted that they were in arrears of rent from 1-3-1973 onwards even if the written statement is construed as not containing an express admission.

We would sum up our conclusions thus:

(i) In the written statement the Petitioners admitted that they were in arrears of rent from 1-3-1973.

(ii) Even if the written statement is construed as not embodying an admission, there is no specific denial therein that the Petitioner~ were in arrears. By virtue of Order 8, Rule 5, CPC the Petitioners shall be deemed to have admitted that they were in arrears.

(iii) It is obligatory for the Controller to call upon the opposite party in an application for eviction to file a written statement.

(iv) As CPC applies to enquiries under the Act, so far as practicable, Order 8 Rule 5, CPC can be invoked to construe the written statement in the absence of specific denial there being no inconsistency between it and the provisions of the Act and the Rules.

(v) The expression �final disposal� as used in Form C does not carry the same meaning as in Order 5, Rule 5, CPC as amended in Orissa.

On the aforesaid analysis, the Controller and the appellate authority. exercised their jurisdiction properly in hot allowing the Petitioners in contesting the proceedings on their failure to deposit or pay the admitted arrears of rent. The writ application falls and is dismissed with costs. Hearing fee of Rs. 200/-.

P.K. Mohanti, J.

I agree.