JAGANNATH DAS Vs. NAGENDRA JENA
LAWS(ORI)-1953-3-6
HIGH COURT OF ORISSA
Decided on March 11,1953

JAGANNATH DAS Appellant
VERSUS
Nagendra Jena Respondents

JUDGEMENT

NARASIMHAM, J. - (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. 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.
(3.) 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.;


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