R.N. Misra, J.
1. This is an application for a writ, of certioran at the instance of the landlords and is directed against the affirming appellate order of the Additional District Magistrate (Judicial) (opposite party No. 11) upholding the rejection of the petition for eviction of the opposite parties 1 to 9 series.
2. The disputed house is situated in the town of Berhampur and once upon a time constituted the joint asset of atrading family of Nimakhandi, Title Suit No. 23 of 1943 in the Court of the Subordinate Judge at Berhampur was filed for partition of the joint family assets. On 13-5-1958, a partial final decree was passed in which inter alia the disputed house fell to the share of the petitioners. In Execution Petition No. 16 of 1961, the decree-holders asked for possession of the properties including the house and their application was resisted by opposite parties 1 to 5 and some others. As possession of the house had not been obtained when the execution petition was dismissed on part satisfaction, a fresh execution proceeding being E. P. No- 74 of 1965 was started for obtaining delivery of possession of the premises. Opposite parties 1 to 5 along with another filed objertion. but they took the stand that they had been admitted as monthly tenants by late Damodar Sahu who had been appointed receiver in the suit. The objection was overruled and symbolical possession was taken on 12-7-1970. The tenants, however, did not pay any rent but opposite parties 1, 2 and 3 filed interpleader suits being Title Suits Nos. 67, 68 and 69 of 1970. During the pendency of the suits, petitioners along with the late Kasinath Sahu applied to the House Rent Controller for eviction of opposite parties 1 to 5 on the allegation that petitioners and opposite paries 6 to 9 were entitled to possession of the house on the basis of being owners thereof and the tenants were wilful defaulters, they had damaged the house and had sublet parts thereof without the consent of the landlords and the premises were necessary for personal occupation both for business as also residential purpose of the owners. Opposite parties 4 and 5 did not enter contest and were set ex parte. Opposite parties 1 to 3 while admitting their status as tenants under the petitioners disputed the allegations of damage, subletting and bona fide requirement of the owners to be in possession. They also disputed the allegation that they were wilful defaulters in the matter of payment of rent and maintained that they had been repairing the house and paying the municipal taxes therefor. As to who would be the owner of the property, was uncertain and. therefore, they had filed interpleader suits. In that view of the matter, they cannot be held to be defaulters.
3. The Controller came to find, (i) the opposite parties 1 to 3 had come to know during 1970-71 that the disputed housefell to the share of the petitioners. In Jan., 1970, in E. P. No. 74 of 1965, the executing court had directed these opposite parties to deposit the rent in court; (ii) these opposite parties had been paying monthly rent to late Damodar Sahu and after his death to his son and had been obtaining rent receipts. Therefore, it could not be said that they were defaulters; (iii) alterations made in the premises were with the consent of Damodar; (iv) the municipal taxes had been paid on the clear understanding that the same would be adjusted out of rent; (v) there was no evidence of damage to the house; (vi) a joint application for eviction of different tenants on different terms of tenancy was not maintainable. The prayer for eviction of all the opposite parties 1 to 5 was rejected notwithstanding the fact that the opposite parties 4 and 5 did not enter contest.
4. On appeal by the petitioners, the Chief Judicial Magistrate upheld the order of the Controller by holding that Damodar and after him his son Soma-nath had been looking after the management of the disputed house and rent had been collected from opposite parties 1, 2 and 3 by him. Exts. C, D and E series establish that the tenants were paying municipal taxes for the tenanted premises in their occupation. Cost of repairs incurred by the tenants was being adjusted out of rent on the basis of an oral agreement and the endorsement on the back of Exts. A and B supported the stand of the tenants. It would involve detailed calculations to find out whether the tenants were in arrears, but it could not be held that they were wilful defaulters in such circumstances. There was no convincing evidence to accept the claim of the landlords that they require the house for business and residential purposes. He affirmed the finding that one common proceeding against five tenants was not maintainable, inasmuch as the tenancies were different.
5. Mr. Mohapatra for the petitioners challenges the findings of the statutory authorities on the question of maintainability of the eviction proceeding as also the findings relating to the tenants being defaulters and the claim of bona fide requirement of the premises by the landlords.
6. Admittedly, petitioners are the landlords of the premises. The entire subject-matter of the dispute is one house and portions thereof had been separately tenanted out to the five opposite parties. The historical background is common in respect of each of the tenancies. Similarly the grounds of eviction in respect of each tenant are common. The points of contest as would appear from record were also common. The only difference is about the commencement of tenancy, the rate of rent and the period of default. Reliance is placed on behalf of the petitioners on the provision of Order 1, Rule 3 of the Civil P. C. which before its recent amendment read thus:
'All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise.'
There is no dispute before us that the provisions of Order 1 of the Code would be applicable to the proceeding before the Controller. The statutory authorities in accepting the objection of the tenants have lost sight of the second part of the Rule. Two alternative situations have been indicated by the Rule. First, several defendants could be joined in case against them where any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist. Alternatively if separate suits were brought against such persons and common questions of law or fact arose, they could also be sued jointly. The present case is one where the second alternative directly applied. We are, therefore, inclined to agree with petitioners' counsel that one joint proceeding was maintainable and the forums below went wrong in holding against the petitioners on that score.
7. There is no serious dispute before us that rent has remained unpaid after 1965. There is force in the submission of Mr. S.C. Mohapatra for the tenants that there was litigation over the properties of the family of the landlords and the tenants had been included by the receiver. They were, therefore, not in a position to know who actually their landlord was until the executing court made an order in 1970. As there was still dispute, the contesting tenants were obliged to file suits for determining as to who the real landlord was. Before these interpleader suits were disposed of, the proceeding for eviction was initiated. Inthe circumstances, there seems to be justification for the finding in the forums below that petitioners are not wilful defaulters. If the Controller and the appellate authority took the view that a combined proceeding was maintainable, they would certainly have exercised their jurisdiction under the Act to direct payment of the arrear rent within fifteen days as provided in the House Rent Control Act, failing which only eviction could have been directed. We accordingly hold that the tenants are not wilful defaulters for the reasons already indicated, but on their own admission, they have been in default from 1965. It would be appropriate, therefore, to require the tenants to pay the entire arrears. Admittedly there have been payments of municipal taxes by the tenants. It being the case of the landlords that it was a term of the tenancy that the municipal taxes would be borne by the tenants, the tenants are entitled to claim adjustment against rent to the extent they have borne the liability of municipal taxes. So far as the question of repairs is concerned, the evidence is indeed very shaky. As early as 1956, there was some oral agreement for repairs, but that is not relevant for the present purpose. As tenants have failed to establish that they were entitled to effect repairs and claim adjustment of rent, we are inclined to agree with the counsel for the petitioners that no adjustment on the ground of repairs can be claimed and allowed. It would, therefore, follow that out of the rent due, if the tenants have paid any municipal taxes, the same are liable to be adjusted. The Statute requires payment to be made within fifteen days. To give such a direction in this case might prejudice the tenants, inasmuch as rent for about thirteen years subject to the deduction of municipal taxes is outstanding. Again, the exact amount which the tenants have to deposit is yet to be ascertained. By consent of parties, we direct that the Controller shall within one month from receipt of the records by him, proceed to quantify the outstanding house rent against each of the tenants. In doing so, he will adjust the amounts of municipal taxes paid by the respective tenants from out of the arrears of rent. Once the liability is quantified, each of the tenants shall be entitled to pay the amount within three months either in a single instalment or in any such instalments as the Controller may allow. In the event of failure to satisfy the entirerental due on the basis of the determination of the Controller within three months from the date of quantification, the defaulting tenant or tenants shall be liable to be evicted and the Controller shall proceed to evict them on the footing that they are wilful defaulters. In case the rent is paid, the tenancy shall subsist and there will be no order for eviction.
8. Coming to the question of personal requirement, we are inclined not to take a view different from the one that has prevailed with the statutory authorities. Admittedly the petitioners had a house within Berhampur town. The evidence is not clear as to when the same was sold away. It is quite possible that the alienation was made after the proceeding was initiated. In the absence of clear evidence, the authorities below were entitled to find against the petitioners. There is also evidence to show that the house is not suitable for residential accommodation. In regard to requirement for personal business, the evidence is indeed not very positive.
9. The writ application is accordingly allowed in part. The Controller is directed to quantify the arrear dues and allow time to the tenants to satisfy the same in the manner indicated above and on their failure to satisfy the direction regarding payment of the rent, to pass an order for eviction against the defaulting tenant on the ground that he is wilful defaulter in the matter of payment of rent. There will be no order for costs.
B.K. Ray, J.
10. I agree.