R.N. Misra, J.
1. This is an application under Articles 226 and 227 of the Constitution asking for a writ of Certiorari to quash the appellate decision of the learned Additional District Magistrate (Judicial) Ganjam (Opposite Party No. 3),
2. The opposite party No. 1 applied before the House Rent Controller, Berhampur in House Rent Control Case No. 11 of 1969 impleading the petitioner and the opposite party No, 2 as respondents and asked for eviction of the respondents from the house as the landlord wanted the premises for his own occupation and wanted a direction from the Controller regarding payment of arrears of rent The landlord alleged that he was the owner of the house and the respondent No. 1 was the tenant under him. The tenant had admitted that he was liable to pay Rupees 670/- by way of arrears of rent and had acknowledged that fact in writing on 23-10-1968.
The respondent No. 1 (the present petitioner) denied the assertion made by the landlord about title and claimed that the landlord was a mere name-lender and the property was purchased by the respondent No. 1 (the petitioner). He also offered a similar explanation about the acknowledgment of arrears of rent. Thus on the plea raised in the written statement before the House Rent Controller neither the relationship of landlord and tenant nor the fact of existence of arrears of rent was admitted.
3. The landlord made an application to the House Rent Controller for a direction in terms of Section 7 (3) of the Orissa House Rent Control Act 4 of 1968. By order dated 10th April, 1970, the learned Controller came to hold that there was no admitted arrears of rent and he accordingly dismissed the petition. An appeal was carried against that order to the learned Additional District Magistrate (Judicial) who by the impugned order dated 23-6-1970 reversed the decision of the Controller and directed that the petitioner should either deposit or remit the arrears of rent to be determined by the Controller with reference to the materials on record before being allowed to contest the main proceedings for eviction.
This direction of the appellate authority is impugned in this writ application as being without jurisdiction and as being contrary to law.
4. Section 7 (3) of the Act provides as follows :
'When an application is made for the eviction of any tenant on the grounds specified in clause (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'
The provisions of Clause (i) of Sub-section(2) of Section 7 are to the following effect:--
'(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; .... .... .... .... .... .... heshall make an order directing the tenant to put the landlord in possession of the house .... .... .... .... .... ....'.
On a plain reading of this provision, it is manifest that the arrears of rent as admitted by the tenant up to the date when the remittance is ordered to be made may be required to be either remitted to the landlord or deposited in the court of the Controller and a penalty attaches upon default, namely, that the tenant would not be entitled to contest the proceedings. 'Admitted by him' as used in sub-section (3) of Section 7 obviously refer to 'admitted in the proceeding', and the intention of the legislature was not to direct an enquiry to be made to determine if the tenant is in arrears of rent at that stage. In the main proceedings, the very aspect has to be examined, and upon a determination of this question, relief to the landlord would either be granted or withheld. In order to avoid an enquiry of any sort at the interlocutory stage the legislature advisedly used the words 'as admitted by him--tenant' and did not leave the matter for an enquiry, however, summary it be.
5. Mr. Ramdas, learned counsel for the opposite party No. 1, in support of the order of the learned Additional District Magistrate relied upon two decisions. The first one is the case of Syed Ahmed v. Naimatullah Shareef, (1970) 1 Andh WR 149. Their Lordships of the Andhra Pradesh High Court were examining the scope of Section 11 (4) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act 15 of 1960. The provisions of that section may for convenience be extracted :--
'If any tenant fails to pay or to deposit the rent as aforesaid, the Controller or the appellate authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building.'
In terms, the relevant provision of the Orissa Act is very different from the Andhra Pradesh Act and while construing the provision in the Andhra Pradesh Act, their Lordships were justified in holding that Section 11 applied to cases where the tenancy was admitted as well as to cases where the tenancy was disputed; and the language of Section 11 was comprehensive enough to clothe the Rent Controller as well as the Appellate Authority with jurisdiction to hold a summary enquiry for determining the question whether the relationship of landlord and tenant existed between the parties, for disposing of an application under Section 11 and passing an order thereof under Section 11 (4) of the Act.
In view of the difference in the statutory provisions we are not in a position to find any assistance for Mr. Ramdas from the principle laid down in the aforesaid case.
6. Mr. Ramdas next relied upon a decision of the Patna High Court in the case of Parbati Kueri v. Sugan Chand Hain, AIR 1967 Pat 415. This Patna decision was taken into account in the Andhra Pradesh case. The learned Single Judge of the Patna High Court was construing the provisions contained in Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act 3 of 1947. That provision is to the following effect:--
'If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment, the landlord may make an application at any stage of the suit for order on the tenant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any, and the Court, after giving an opportunity to the parties to be heard, may make an order for deposit of rent at such rate as may be determined month by month and the arrears of rent, if any, and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteenth days of the next following month, the Court shall order the defence against ejectment to, be struck out and the tenant to be placed in the same position as if be had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the Court may permit him to do so. The Court may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant.'
Here again, there is substantial difference in the statutory provision. It is difficult for us to find any support for Mr. Ramdas from this decision either.
7. The words 'as admitted by him' obviously refer to 'as admitted in the proceedings before the Controller. It does not contemplate an enquiry into the matter at that stage and therefore, in cases where the tenant denies the existence of any arrears of rent or otherwise does not admit the fact of existence of arrears of rent it is not open to the Controller to enter into an enquiry and decide that the tenant is actually in arrears of rent and thereupon call upon the tenant to either remit to the landlord the amount of arrears of rent or deposit the same with him, and for non-compliance of such a direction he is not entitled to exclude the tenant from contest in the proceedings.
8. This interpretation of Sub-section (3) of Section 7 of the Orissa Act fits into the scheme of the statute. The first proviso to Sub-section (2) reads as follows:--
'Provided that in any case falling under Clause (i) 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 pay or tender the rent due from him to the landlord upto the date of such payment or tender and on such payment or tender the application shall be rejected.'
Sub-section (3) which just appears after the proviso has to be read along with the proviso and both these -- the proviso and Sub-section (3) -- deal with the same aspect namely, if at an earlier stage in the proceeding the tenant has not admitted arrears of rent but has taken other pleas and ultimately it appears that the tenant is really a defaulter, his claim of not being a wilful defaulter would in many or most cases stand rejected on account of his conduct on the earlier occasion when the landlord wanted directions regarding payment of arrears of rent and the tenant had not admitted the existence of any such arrears.
9. In view of our conclusion that Sub-section (3) does not authorise the Controller to make any investigation about arrears of rent when the tenant does not admit the existence of such arrears of rent, we must hold that the Appellate Authority exercised a jurisdiction not vested in him. His direction to the Controller to investigate about the existence of arrears of rent is contrary to the statutory provision.
10. We would accordingly allow the writ application and issue a writ of certiorari quashing the appellate order of the opposite party No. 3 dated 23-6-1970.
The writ application succeeds with costs. The petitioner shall be entitled to hearing fee of Rs. 50/-.
B.K. Patra, J.
11. I agree.