P.K. Mohanti, J.
1. This writ application has been filed by the landlord against the appellate order of the learned Chief Judicial Magistrate, Sundargarh reversing an order of eviction passed by the learned House Rent Controller under Section 7 of the Orissa House Rent Control Act, 1967 (hereinafter referred to as the Act).
2. The house in question was let out to opposite party No. 1 for the period from 1-11-1973 to 30-9-1974 on a monthly rent of Rs. 110/- and in evidence thereof an agreement was executed on 2-12-1973 vide Ext. 5. According to the terms of agreement the tenant was to pay the monthly rent within the first week of the succeeding month and to vacate the house after expiry of the lease on 31-9-1974. On 15-1-1975, the landlord filed an application under Section 7 of the Act for eviction on the grounds that the house was required by him for Ms own occupation and that the tenant was a wilful defaulter.
3. The tenant filed counter denying the allegations of bona fide requirement and wilful default in payment of rent. It was alleged that the landlord used to receive the rent at intervals but since 5-10-1974 he stopped receiving rent.
4. Opposite party No. 2 was impleaded in the proceeding on her own application. Her case was that the house in question had been constructed by her husband Maniruddm and after his death she has become the owner thereof. She also pleaded that her husband had inducted the opposite party No. 1 as a tenant in 1952 and was collecting rent from him. After his death, she herself collected rent for three years and then she shifted to Sundargarh after authorising the petitioner to collect rent on her behalf. Accordingly she contended that the petitioner had no right, title or interest in the house in question.
5. The learned House Rent Controller, on a consideration of the evidence led by both the parties, came to the conclusions that the petitioner was the reallandlord, of the house in question; thatthe opposite Party No. 1 was a wilfuldefaulter; that he denied the title of hislandlord and that the house was requiredbona fide by the landlord for his occupation. Upon such findings he passed anorder of eviction, under Section 7 of the Act. Aggrieved by the decision of theController, the tenant-opposite pattyNo. 1 filed H. R. C. Appeal No. 10 of1978 and opposite party No. 2 filedH. R. C. Appeal No. 11 of the 1978. Thelearned Chief Judicial Magistrate agreedwith the learned House Rent Controllerthat the petitioner was the landlord, buthe came to hold that there was no denialof title by the tenant; that there was nobona fide requirement of the house bythe landlord and that the tenant was nota wilful defaulter. Upon these findingshe allowed the appeal filed by the tenant-opposite party No. 1, and dismissed theappeal filed by opposite party No. 2.Aggrieved by this decision the landlordhas come up with this writ application.
6. The concurrent finding of fact ofboth the authorities below that the petitioner was the real landlord of the housein question is not challenged before us,The finding of the appellate authoritythat there was no denial of title by thetenant is also not seriously challengedbefore us. In the written statement filedby the tenant there was, no denial oftitle of the landlord. It was ratheradmitted by opposite party No. 1 in hiswritten statement that thepetitioner was realising rent from him:The appellate authority was, thereforejustified in holding that the tenant wasnot liable for eviction on the ground ofdenial of landlord's title. So far as theplea of bona fide requirement is concerned, it appears from the evidence ofthe landlord, who was examined asP. W. 1. that he is sewing under theSteel Authority of India and a residential quarters has been allotted to him inSector, in, Rourkela. The rented houseconsists of only one room and is situateat Rourkela. Since a quarters has beenallotted to him at the same place there seems to be no necessity for him to occupy the rented house. The appellateauthority was therefore, justified in disbelieving the plea of bona fide requirement.
7. As regards default in payment of rent, the appellate authority relying on a decision in the case on S. P. Deshmukh v. Shah Nihal Chand Waghajibhai Gujarati: AIR 1977 SC 1985, came to hold that the landlord having accepted the rent at intervals without any murmur and having received the rent for October, 1974 in advance it cannot be said that the tenant was a wilful defaulter. In the case before their Lordships of the Supreme Court there was no agreement for payment of rent on any particular dale and by the date of commencement of the eviction proceeding the tenant was not in arrears. The landlord had been willingly accepting rent at an interval of three or four months and had never complained of any irregularity on the part of the tenant in paying rent. Both the rent control authorities concurrently held that the tenant was not a wilful defaulter. The High Court reversed the concurrent finding and allowed the application for eviction. In the facts and circumstance of the case as stated above, their Lordships of the Supreme Court set aside the decision of the High Court.
8. In the instant case the landlord who was examined as P. W. 1 stated that he had warned the tenant several times .for irregular payment of rent. By the date of commencement of the eviction proceeding the tenant was in arrears of rent for two months. As indicated earlier, there was an agreement between the parties and according to the terms thereof the rent was to be paid within the first week of the succeeding month. Thus the tenant was under an obligation to pay the monthly rent within the stipulated period. The counterfoils of rent receipts (Ext. A series) proved by the landlord clearly show that the rent was paid at an interval of three or four months and admittedly the rent for two months had not been paid by 15-1-75 when the proceeding for eviction was started. The finding of the learned Chief Judicial Magistrate that the rent for October, 1974 had been paid in advance is based on no evidence. No doubt, under Ext. A a sum of Rs. 440/- was paid as rent but there is absolutely no indication that the rent was paid in advance for the month of Oct., 1974 although it might be that the rent for one month was doubly paid.
9. To arrive at a finding that the tenant is in wilful default, the mere fact that he is in arrears of rent would not be enough and the Court has to examine whether there has been deliberate violation of the obligation to pay the rent. The question whether the default is wilful involves the determination of the state of mind of the tenant. Of course this has to be gathered from the circumstances, as no direct evidence can be had in the matter.
It is in the evidence of the landlord that the tenant had been warned by him several times for irregular payment of rent. His evidence also shows that he repeatedly requested the tenant to pay the rent but he refused to pay and said that he was not the owner of the house. Thus it is clear that the tenant wilfully defaulted to pay the rent.
It cannot be said that by accepting rent at intervals the landlord had waived his right to evict the tenant under the Act. In our opinion, mere acceptance of rent at intervals does not constitute waiver. On the facts and circumstances of the case, it is impossible to read into the acts and the conduct of the landlord any intention to waive his right to evict the tenant on the ground of default in payment of rent.
10. In the result, we allow this writ application, set aside the order of the learned Chief Judicial Magistrate and restore the order of eviction passed by the learned House Rent Controller. We make no order as to costs.