Decided on December 08,1978

Mohanlal Agarwalla Appellant
Bidyadhar Puruseth And Ors. Respondents


R.N.Misra, J. - (1.) THIS is a tenant's application for certiorari directed against the affirming appellate order under the Orissa House Rent Control Act (hereinafter referred to as the 'Act') directing his eviction from a house located within the town of Sambalpur.
(2.) ON 23 -2 -1969, the application for eviction was made to the House Rent Controller under Section 7(2) of the Act on grounds of subletting and default in the matter of payment of rent. On behalf of the tenant -Petitioner it was pleaded that the rent for the month of September, 1963 had been offered in the first week of October, but it was not accepted by the landlord. Therefore, it had been remitted by money order in course of November. It was also pleaded that the rent used to be collected once in two or three months and the mode of receiving rent for more than one month at a time had become the accepted practice and could be taken as an implied contract regarding the mode of payment. The tenant denied that he incurred the liability of eviction on account of subletting Before the Controller, each party examined one witness and certain documents were produced. The Controller negatived the defence plea and allowed eviction. On appeal, the order of eviction has been upheld.
(3.) MR . Mohanty for the Petitioner raises the following contentions: (i) Tenancy of the house commenced some sixty years back when Petitioner's grandfather came to possess the premises. Ever since then, the family has been in possession. There is no finding that there has been any subletting after the Act came into force. The sale evidence of subletting came from witness who had no personal knowledge and had stated that he heard from some body else about it. It is contended that the Evidence Act applies to the proceedings under the Act and hearsay is not evidence. (ii) The Controller and the appellate authority were not justified in holding that Petitioner became liable for eviction for non -payment of rent. The appellate authority rejected this stand by saying that the documents show the rent had been received from the Petitioner at a time for two months or even for more than two months and therefore, Petitioner's stand that rent was being received once in two months was not correct. The Petitioner's plea has not been properly appreciated. He really contended that by practice spread over several years, rent was being collected periodically and not from month to month. (iii) It is next contended that even if there be default for the month of September, 1968, a single default, particularly when there was evidence that the rent had been remitted in the month of November, i.e. a few days beyond the permissible limit, the Controller or the appellate authority should have found out whether the default was wilfull. In case they came to hold that it was not wilful default, the Proviso under Section 7(2) of the Act should have been applied.;

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