1. This second appeal is by the plaintiff against the appellate judgment of the Additional Subordinate Judge, Cuttack, reversing the judgment of the 2nd Munsif of Cuttack and dismissing his suit for ejectment of the respondent-defendant from a house while decreeing his suit for arrears of rent. The second appeal was first heard by a Single Judge of this Court who, however, referred it to a Division Bench in view of some observations in -- 'Banchhanidhi Samantari v. Lachminarain Agarwala', AIR 1950 Orissa 1 (A) regarding the construction of Clause (a) of Section 5, Orissa House Rent Control Act, 1947.
2. The appellant is the owner of a house in Balubazar, Cuttack town, and the respondent was a monthly tenant of the appellant residing in the house. The appellant, alleging that the rent due for the house was not paid from July, 1943 till the end of April, 1946, sent a registered notice on 23-1-46 terminating his tenancy and then instituted a suit for his ejectment and also for recovery of arrears of rent. The defendant's plea was that he had paid rent till the end of March, 1945 and that he was willing to pay the arrear rent due. The trial Court held that the total arrear rent due to the plaintiff was only Rs. 104/- from April, 1945 till the date of the institution of the suit (April 1946) and passed a decree for that amount and also decreed the ejectment of the defendant holding that he had been served with a valid notice to quit and that the suit was not incompetent for want of an exemption order from the House Rent Controller. On appeal, the learned Additional Subordinate Judge while maintaining the trial Court's decision as regards the amount of arrear rent due, dismissed the suit for eviction holding that a suit for that purpose was not maintainable inasmuch as the plaintiff had not obtained an exemption order from the House Rent Controller as required by proviso 2 to Section 5, Orissa House Rent Control Act, 1947.
3. The decree for arrears of rent passed by the two lower Courts can no longer be disputed and it was rightly not pressed during the hearing of the second appeal. The sole question for decision is whether the suit for eviction must fail for want of an exemption order under proviso 2 to Section 5, Orissa House Rent Control Act, 1947.
4. Section 5 of that Act is as follows:
'5. Subject to the provisions of this Act and notwithstanding anything to the contrary contained in an agreement or law where a tenant on a tenancy from month to month is, on the date of the commencement of this Act, in possession of any house-
(a) he shall not be liable to be ejected, whether in execution of a decree or otherwise except for non-payment of rent or breach of the conditions of the tenancy, and
(b) the landlord shall not be entitled to increase the rent which was, on the date of the commencement of this Act, payable for such house:
Provided that the controller may, on the application of the landlord and after making such enquiries as he thinks fit, increase such rent, in the same circumstances, to the same extent and with the same effect as the fair rent of a house may be increased under Section 9 :
Provided further that a landlord may apply to the Controller for exemption from the provision of Clause (a) in respect of any house and it the Controller is satisfied
(i) that the house is reasonably and in good faith required by the landlord for the occupation of himself or any member of his family joint in mess with him, or for the occupation of any person or persons for whose benefit the house is held by him, or
(ii) that the landlord has any other good and sufficient reason for ejecting the tenant, the Controller shall pass an order exempting the landlord from the provisions of the said clause in respect of the house:
Provided further that where in consequence of an order under the last preceding proviso a tenant has been ejected he will be entitled to be restored to possession on the same grounds, and the same procedure and subject to the same limitations as laid down in Sub-section (3) of Section 10 in the case of other tenancies.'
Clause (a) says that a monthly tenant shall not be liable to be ejected except for non-payment of rent or breach of the conditions of the tenancy notwithstanding anything to the contrary contained in an agreement or law and notwithstanding the existence of any decree for eviction. The second proviso authorises the Controller to exempt a landlord from the provisions of Clause (a). The question for decision is what is the precise scope of the words 'exemption from the provisions of Clause (a)' occurring in that proviso. Do they mean that even in those cases where a decree for eviction of a tenant has been obtained for non-payment of rent, an exemption order is required before such a decree could be executed? This view, however, appears to be not tenable. Clause (a) of Section 5 imposes a special disability on a land-lord from evicting a tenant notwithstanding anything to the contrary contained in an agreement or law and notwithstanding any decreefor eviction. But that clause itself says that this special disability shall not apply where ejection is sought for for non-payment of rent or breach of the conditions of the tenancy. The exemption from the provisions of Clause (a) ascontemplated in proviso 2 to that section would, therefore, be an exemption from the disability imposed by Clause (a). But when that disability itself does not apply where ejection is sought lor on account of non-payment of rent or breach of the conditions of the tenancy any question of exemption from that disability does not arise. Hence on a mere construction of the relevant provisions of Section 5 the reasonable view is that where ejectment of a tenant is sought for by a landlord, whether in execution of a decree or otherwise, on account of non-payment of rent the ordinary law regulating the relationship between landlords and tenants would apply. The special disability imposed by Clause (a) of Section 5 would disappear and there would be no need for the landlord to apply for an exemption order under the second proviso.
5. One of the important objections to the aforesaid view is that under the general law regulating the relationship between landlords and tenants as provided in Chapter V, Transfer of Property Act, there is no provision authorising a landlord to evict a tenant for mere non-payment of rent. Eviction can be sought for only after terminating the tenancy by a valid notice to quit under Section 106 of that Act or by forfeiture under Section 111(g) where the terms of the tenancy provide for right of re-entry for breach of one of the conditions and a validnotice had been given to the tenant of the breach and of the landlord's intention to determine the lease for such breach. Thus in the end all suits for eviction of a tenant depend on the determination of his tenancy by a valid notice to quit. Even if one of the conditions of the lease is that where there is non-payment of rent the landlord may re-enter the lease-hold property, a valid notice as required by the last portion of Clause (g) of Section 111 is necessary for determining the lease. Even in the absenceof any such provision in the terms of a tenancy if a landlord finds that a tenant is in arrears of rent he may determine the tenancy by giving the required notice under Section 106. Thus under the general law the cause of action in any suit for ejectment of a tenant would be the determination of the tenancy by the service of a valid notice to quit though the motive of the landlord in so determining the lease may be the non-payment of rent. Non-payment of rent can never by itself be the cause of action in any suit for ejectment. It may be presumed that the Orissa Legislature was aware of this principle of general law when it enacted Clause (a) of Section 5, Orissa House Rent Control Act, 1947. Hence when in that clause it excepted from eviction those cases in which eviction is sought for for non-payment of rent, the reasonable inference is that the Legislature intended that this exception should apply where the motive (not cause of action) for the suit wasnon-payment of rent. Any other view would render the words 'except for non-payment of rent or breach of the conditions of the tenancy'occurring in that clause redundant and meaningless.
6. In 'AIR 1950 Orissa I (A)' there are some observations which may support the view that Clause (a) of Section 5, Prissa House Rent Control Act, confers a substantive right on a landlord to institute a suit for non-payment of rent (see p. 241). With great respect, I am unable to accept this construction of Section 5(a). Section 5 merely says that notwithstanding any law a tenant shall not be liable to be ejected except for non-payment of rent. This prohibition cannot be construed to mean that it confers a right on a landlord to eject a tenant for non-payment of rent. For that purpose one must see the general law regulating the rights between landlords and tenants as provided in the T. P. Act. If the Legislature wanted to supplement the rights conferred on the landlords by the T. P. Act and to confer on them the right to evict a tenant for mere non-payment of rent it would surely have said so in clear terms. Moreover the preamble to the Orissa House Rent Control Act says that the main object of the Act was to prevent unreasonable eviction of tenants. It was not the object of the Act to confer additional right on the landlord to evict a tenant.
7. I would, therefore, take the view that where a suit for eviction of a tenant though based on a valid notice to quit as provided in the T. P. Act, is itself due to the failure of the tenant to pay rent, the special protection from eviction conferred by Section 5(a), Orissa House Rent Control Act, does not apply and there is no need for the landlord to obtain an exemption order under the second proviso to that section. I would further hold that Section 5(a) does not confer any additional right on a landlord to evict a tenant for mere non-payment of rent or breach of the conditions of the tenancy. The landlords's right in this respect continues to be regulated by the relevant provisions of the T. P. Act.
8. In the present case as already pointed out, the suit was instituted for recovery of arrears of rent and also for eviction after the service of a valid notice to quit. That notice was served because the tenant was in arrears of rent. The tenant is, therefore, not entitled to protection of Section 5 (a) nor was it necessary for the landlord to obtain an exemption order under the second proviso to that section. The appeal is allowed, the order of the lower appellate Court is set aside and the trial Court's order for recovery of possession of the disputed house by ejecting the respondent-defendant and for recovery of arrears of rent of Rs. 104/- is restored. The appellant should get costs throughout.
9. I agree.