Sambalpur Automobiles and Others vs Bidyabhusan Mohapatra and Others

G.K. Misra, C.J.—The disputed house belongs to Sri Bidyabhusan Mohapatra (opposite party No. 1). Petitioners are admittedly the tenants of that house on a monthly rent of Rs. 135/ -. They fell into arrears of rent for a period of about eleven months. Opposite party No. 1 filed an application for eviction u/s 7(2)(i) and (4) of the Orissa House-Rent Control Act, 1967 (hereinafter to be referred to as the Act). Petitioners filed a written statement denying that they were in arrears of rent. The positive case advanced by them was that the landlord did not keep the house in a habitable condition and did not repair the same. Through the intervention of gentlemen it was settled that the Petitioners would get the house repaired and adjust the expenses from house rent. Petitioners in accordance with the agreement with the landlord did not pay the house rent for the aforesaid period and got the house repaired through one Radhamohan Badapanda, a petty contractor. After completion of the work the contractor was referred to opposite party No. 4 for final settlement of the bill, the liability for payment of which was with the Petitioners. Radhamohan and opposite party No. 1 did not agree to the amounts spent over repairs. The matter was referred to arbitrators. Before it could be settled opposite party no''. 1 issued a notice for eviction on the Petitioners on 8.10.1971. Petitioners deposited Rs. 1, 500/ - with the arbitrators but as the arbitration could not be effected due to non-cooperation of opposite party No. 1 the Petitioners withdrew that amount and have retained the same for payment to Radhamohan as and when the bill will be settled. Opposite party No. 1 took advance of Rs. 240/ -. on different dates to be adjusted towards the house rent. Thus among other defences the positive stand taken by the Petitioners was that they were not in arrears. The rent of the period for which the Petitioners are said to be defaulters has been retained by them for adjustment towards repair expenses.

Before the trial proceeded opposite party No. 1 filed an application before the House-rent Controller u/s 7(3) of the Act to call upon the Petitioners to deposit the admitted rent and to debar them from contesting the proceedings on failure of payment. The House-rent Controller acceded to the request and passed the order (Annexure-4) dated 4-5-1973 giving time to the Petitioners to deposit the admitted rent from February, 1971 till January, 1972 and further directed that on their failure to deposit the amount within time they shall not be allowed tu contest the proceeding. The Petitioner filed an appeal against this order in the Court of the A.D.M. (Judicial), Sambalpur who dismissed it as being barred by limitation by his order Annexure-8 dated 6-12-1973. The writ application has been filed to quash Annexures 4 and 8.

Two questions arise for consideration:

(i)Whether the House-rent Controller exercised jurisdiction legally in debarring the Petitioners to contest the proceeding unless they deposited the alleged admitted rent.

(ii) Whether the appellate authority exercised jurisdiction illegally in dismissing the appeal as barred by limitation without condoning the delay u/s 5 of the Limitation Act.

Sub-sections (2)(i) and (3) of Section 7 of the Act run thus:

7.(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 with in 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;

(3) When an application is made for the eviction of any tenant on the grounds specified in (i) of Sub-section (2) the tenant shall remit the arrear rent as admitted 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.

These two Sub-sections are to be read together. They came up for consideration before this Court on several occasions. It has been consistently held that the expression "the arrear rent as admitted by him" used in Sub-section (3) refers to a specific admission in the written statement in the proceeding. It may be that in fact a tenant is in arrears. If he falsely denies in the written statement that he is not in arrears he cannot be said to have admitted that he is in arrears. For this purpose the House rent Controller is not to embark on an independent enquiry as to the existence of arrears of rent. His duty is to study the written statement carefully and see if arrears of rent are admitted. It may be further made clear that arrears of rent coming into existence subsequent to the filing of an application for eviction u/s 7(2)(i) would not be taken into consideration for the purpose of holding that there were arrears of rent even if in fact such arrears are not disputed.. It is unnecessary to cover the same ground again by thorough analysis. It is sufficient to refer to the several Bench decisions of this Court. They are Rama Chandra Sahu v. Sanyasi Behera and Ors. (1971) C.L.T. 383, Srimati Dei alias Dasi and Anr. v. Bidyadhar Pradhan and Ors. (1971) C.L.T. 456, Bijaya Kumar Mohanty v. Sarswati Subudhi and Ors. (1971) C.L.T. 593, Ganeshchandra Banerjee v. Sri Janardan Jeu Thakur by Marfatdar Sridhar chandra Kar and Anr. (1972) C.L.T. 382 Tarini Sahu v. Chappati Seshamma and Ors. (1974) C.L.T. 945, and Surendra Nath Mohapatra v. Jermiah Singh and Ors. ILR 1974 Cutt. 757.

Applying the aforesaid principle to the facts of this case it is clear that the Petitioners did not admit in the written statement that they were in arrears of rent. Their case is that under an agreement with the landlord (opposite party No. 1) it was decided that the arrears of rent from February, 1971 would be retained by the Petitioners to be adjusted towards expenses of repairs and that repairs having been done they would be liable to pay the amount to the petty contractor. It may be that the Petitioners'' case in this regard may ultimately turn out to be untrue but with no logic it can be said that the Petitioners admitted in the written statement that they were in arrears of rent. Section 7(3) of the Act has no application. The House-rent Controller exercised his jurisdiction illegally in debarring the Petitioners from contesting the proceedings. Annexure-4 is liable to be quashed.

The next question for consideration is whether the appeal before the A.D.M.U.) was barred by limitation. Material dates may be indicated to decide this question. On 4-5-1973 the order of the House-rent Controller was passed. From 13-5-1973 to 17-6-1973 the Civil Court at Sambalpur was closed for summer vacation. On 18-6-1973 the Civil Court reopened. The Petitioners filed an application for copy of the order dated 4-5.,1973 on 18-6-1973. Copy was ready on 23-6-1973. 24-6-1973 was Sunday. Certified copy was taken delivery on 25-6-1973 and the appeal was filed on 26-6-1973. The impugned order dated 4-5-1973 was passed by the Munsif who was a Magistrate 1st Class. The case of the Petitioners is that as the order was passed by a Munsif they were under the wrong impression that no application for copy can be made during the summer vacation and accordingly they filed the application for copy on the reopening day. This view of the Petitioners though not justified cannot be said not to be entertained in good faith. The Sub-Divisional Magistrate is the House rent Controller under the Act. He can transfer a case to a Magistrate 1st Class. The Munsif who heard the case did so in exercise of powers of a Magistrate 1st Class. Petitioners were, therefore, not justified in thinking that it is the Munsif who passed the order and that they can file an application for copy on the reopening date. Petitioners are, therefore, not ordinarily entitled to exclusion of time from 5-5-1973 till 18-6-1973 if justification is sought; but as has already been stated, the wrong impression entertained by them cannot be said to be lacking in good faith. Taking an overall picture of the matter we are prepared to condone the delay. Moreover, existence of an alternative remedy does not oust the jurisdiction of this Court to quash Annexure-4. We accordingly condone the delay in the filing of the appeal. Annexure-8 is accordingly quashed.

Petitioners say that they had deposited Rs. 1, 500/ - with the arbitrators which they had withdrawn. Mr. Mohapatra in the writ application itself stated that the Petitioners may be permitted to deposit the amount in Court. We direct the Petitioners to deposit Rs. 1, 500/ - in the Court of the House-rent Controller within two weeks from today. Opposite party No. 1 would not be allowed to withdraw that amount. If the House Rent Controller ultimately finds that the defence of the Petitioner was untrue in this regard, then opposite party No. 1 would be allowed to withdraw the amount after giving an undertaking that he would re-deposit the same as and when called upon. It would be open to the House-Rent Controller to give a direction to the Petitioners to deposit the monthly rent as and when due. The House-Rent Control Case would be disposed of within two months from to day with intimation to this Court.

On the analysis given by us, Annexure-4 and 8 be quashed and a writ of certiorari be issued accordingly. The writ application is allowed as indicated above; but in the circumstances, there will be no order as to costs.

S.K. Ray, J.

I agree.