G.K. Misra, C.J.
1. The petitioner is a tenant under opposite party-1 since 1940 in respect of a house in Balasore town on a monthly rent of Rs. 7-50. Petitioner's case is that from 1958 the tenancy was by agreement converted into an annual one and the petitioner used to pay Rs. 90-00 at the end of the year and obtained receipt. He alleges that on 12-2-1967 he paid Rupees 100-00 to the mother of opposite party No. 1 -- Rs. 90-00 towards the rent for the year 1965 and Rs. 10-00 towards the rent for the 1966. On 14-8-1967 the petitioner remitted Rs. 80-00 towards rent for 1966 which was refused by opposite party No. 1. On 4-10-1967 opposite party No. 1 filed the petition for eviction under Section 7 (1) and (4) of the Orissa House Rent Control Act, 1967 (hereinafter to be referred to as the Act), on the grounds that the tenant was in arrears of rent and the landlord required the house in good faith for his own occupation. The landlord's application for eviction was dismissed by the House Rent Controller. Both the grounds for eviction were not accepted as having been established. In appeal, the learned A. D. M. (J) agreed with the Controller that the two grounds for eviction were not established. He, however, directed eviction as the tenant had not deposited the admitted arrears of rent as required under Section 7 (3) of the Act. The tenant has filed this writ application for quashing the appellate order as haying been passed illegally in exercise of jurisdiction.
On behalf of the landlord a counter has been filed stating that the tenant was a wilful defaulter and the application for eviction should be allowed on that ground.
2. The concurrent finding of the authorities below that the house is not required in good faith for the occupation of the landlord is not disputed before us. Mr. Panda contends that the finding of the appellate authority that the tenant would be precluded from defending the proceeding under Section 7 (3) is without jurisdiction. The contention is sound on two grounds. Firstly, such a plea was not taken before any of the authorities below. The point was not canvassed and it is for the first time in the appellate judgment an order was passed debarring the tenant from defending the proceeding as the admitted arrears of rent had not been paid. If this point had been taken before the House Rent Controller, it would have been within the jurisdiction of the Controller to direct the tenant to pay the rent and it is only in case of default that the tenant would have been precluded from defending the proceeding.
The more formidable point, however, is that it is concluded by a series of decisions of this Court that Section 7 (3) applies only to cases where in the eviction proceeding itself the tenant admits that he was in arrear of rent. Even though in fact the tenant might be in arrear of rent, and yet he does not admit to have been in arrears, he cannot be debarred from defending the proceeding. It is not necessary to re-examine the law on the point. See (1971) 1 Cut WR 378 = (AIR 1971 Orissa 235), (Ramchandra Sahu v. Sanyasi Behera); (1971) 37 Cut LT 593, (Bijoy Kumar Mohanty v. Saraswati Subudhi) and ILR (1971) Cut 665. (Smt. Dei v. Bidyadhar Pradhan). The view taken by the A. D. M. (J) on this point is clearly untenable and his order cannot be supported on that ground.
3. Despite the aforesaid conclusion in favour of the landlord Mr. Harichandan, however, contends that the concurrent finding of the authorities below that the petitioner is not a wilful defaulter cannot be supported. Section. 7(2). Proviso lays down 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'.
The law on the point is no longer in doubt. The position, as it stands now, is that in consideration of the occupation of the house by the tenant, he must pay rent regularly. If there is any agreement between the landlord and the tens ant regarding a particular date of payment, then rent must be paid by that date. If there is no such agreement, in case of a monthly tenancy, the tenant is to pay on the last day of the succeeding month the rent of the previous month. If he does not pay rent even for a month, he entails the consequence of eviction.
The proviso quoted already can only come to the protection of the tenant if he can establish that the default that he made was not wilful,
4. Till 1958 the tenant was paying monthly. Subsequent thereto the payment appears to have been made about a year after. The tenant accordingly set up a plea that the monthly tenancy was converted into a yearly tenancy. This theory was negatived by the appellate authority on the ground that the yearly tenancy could not be created except by a registered instrument. Mr. Panda rightly did not assail this elementary legal concept. He, however, contended that it is open to the parties to enter into an agreement that the monthly rent would be paid on a particular date and sometimes more than a year after. In such a case the onus is on the tenant to plead and prove when such an agreement was entered into. In this case the tenant has not adduced any proof that there was such an agreement. If there was no such agreement, the fact that in respect of monthly tenancy, the tenant paid at long intervals of time, sometimes covering more than a year, by itself establishes that the tenant was grossly negligent in discharging his obligation to pay rent which is the consideration for occupation of the house. This callous indifference on the part of the tenant is nothing but wilful and such a tenant is not entitled to any protection. The facts would show that for the year 1963-64 the tenant paid rent of Rs. 120-00 on 18-3-1966 (ext A/1). He advanced a case that on 12-2-1967 he paid Rs. 100-00 out of which Rs. 90-00 was towards rent for the year 1965 and Rs. 10-00 towards rent for 1966. The lower appellate authority did not accept this as being established. On 5-7-1967 by Ex. 1 the landlord sent a notice to the petitioner to pay rent for 2 years and 7 months amounting to Rs. 232.50 and to vacate the house by the end of July. 1967- On 14-8-1967 Rs. 80-00 was remitted towards rent for 1966 which was refused by the landlord and the application for eviction was filed on 4-10-1967. The aforesaid catalogue of facts establish beyond reasonable doubt that the tenant deliberately avoided to pay rent and enjoyed the house without quid pro quo. Hence the tenant is liable to eviction on this ground. Both the authorities below exercised their jurisdiction illegally in not keeping the law and the relevant facts in view and their order therefore is liable to be quashed, by issue of a writ of certiorari.
5. Thus on the aforesaid analysis though we do not uphold the order of the A. D. M. (J) on the construction of the Proviso to Section 7 (2), we confirm his order on an altogether different ground.
6. In the result the writ application fails and is dismissed with costs. Hearing fee of rupees one hundred.
7. I agree.