JUDGMENT : G.K. Misra, C.J. - Material facts may be stated in brief. Kshetrabasi Pradhan (opposite party No. 2) and Bidyadhar Pradhan (Opposite Party No. 1) filed an application on 8-7-1969 u/s 7(2)(i)(iii) and (iv) of the Orissa House-Rent Control Act, 1967 (hereinafter to be referred to as the Act) for eviction of Bijoyketan Das (Petitioner No. 2) alleging therein that Bijoyketan was a tenant at will under Kehetrabasi in holding No. 136 under Ward No. 117 of Cuttack Municipality. The rent of the house was claimed to be Rs. 50/- per month with effect from 1-2-1964 as determined by the order of the House-Rent Controller on 17-6-1 69 in H.R.C. Case No. 6 of 1964 between Khetrabasi and Bijoyketan. It was admitted in the application that the rent prior to 1-4-1964 was Rs. 35/- per month. There was an averment that the house ad been let out in good condition and due to negligence and lack of care of the tenant the value and utility of the house had been materially impaired. The tenant was a habitual and wilful defaulter in tendering the monthly rent. At the time of the filing of the application the arrears of rent amounted to Rs. 3,600/- calculated at Rs. 50/- per month from 1-2-1964. The tenant was admitted to have paid the rent up to the end of May 1964 at Rs. 35/- per month. Eviction was also sought on the further ground that Bijoyketan challenged the title of Kshetrabasi in H.R.C. Case No. 5 of 1964 and No. 6 of 1964. The further averment in the application was that though Bidyadhar was not a necessary party and the dispute house belonged to Kshetrbasi absolutely, Bidyadhar had been impleaded as a party as a matter of abundant caution in view of the stand taken by the tenant in the aforesaid House-Rent Control cases. Bidyadhar is the father of Kshetrabasi. Two prayers were made in the application firstly, to direct Bijoyketan to pay the entire arrear rent due up-to-date and secondly, to evict him from the suit house. On 19-11-1969 Bijoyketan filed his written statement. He took the stand that he was not a tenant under Kshetrabasi and that the real landlord-was Bidyadhar and accordingly rent fixed in House-Rent Control Case No. 6 of 1964 was not binding on him as Bidyadhar was not a party to that case. On 19-11-1969 Bijoyketan filed his written statement. He took the stand that he was not a tenant under Kshetrabasi and that the real landlord-was Bidyadhar and accordingly rent fixed in House-Rent Control Case No. 6 of 1964 was not binding on him as Bidyadhar was not a party to that case. He further averred that the house was let out to his mother Srimati Dei (Petitioner No. 1) and he was merely residing with his mother. The house was not let out in good condition and there was no deterioration on account of occupation by Srimati. She spent Rs. 500/- over repairs of the roof and window of the pucca house and another Rs. 590.12 P over repairs and payment municipal tax. In July 1964 Srimati sent the rent due to Bidyadhar by postal money-order but he refused to accept it. There were no arrears of rent and the claim of Re. 3,060 was highly exaggerated. Srimati was said to be not a habitual and wilful defaulter. Bijoyketan took the stand -that the title of Kshetrabasi to the disputed house was rightly challenged by him and that cannot furnish a ground for eviction. After receipt of the written statement, opposite parties filed an application for amendment of the petition. There was an averment that the stand of Bijoyketan that Bidyadhar and not Kehetrabasi was the landlord and Srimati and not Bijoyketan was the tenant was false; yet it was prayed that it would be just and convenient and in the interest of justice that Srimati should be added as opposite party No. 2 in the application for eviction. The prayer in that petition was couched thus: It is therefore prayed that Srimati Dei be added as opposite party No. 2 in the above case and she be evicted from the suit premises if she be found to be a tenant under Bidyadhar as has been claimed by Bijoyketan as in the pleadings she is also a wilful defaulter in paying the rent. The prayer in the application for eviction u/s 7 of the Act after amendment was that both Srimati and Bijoyketan would be directed to pay the entire arrear rent due up-do-date and would be evicted from the suit house. The amendment application was allowed on 5-2.1970 and Srimati was impleaded as an opposite party in the application for eviction. Srimati filed her written statement on 11-5-1970. The amendment application was allowed on 5-2.1970 and Srimati was impleaded as an opposite party in the application for eviction. Srimati filed her written statement on 11-5-1970. The stand taken in her written statement is identically the same as was in the written statement of her son. 2. On the aforesaid pleadings the following issues arose for determination: (i) Is Bijoyketan a tenant under Kshetrabasi or at all a tenant? (ii) Is Srimati a tenant under Bidyadhar? (iii) If there is relationship of landlord and tenant, is Srimati or Bijoyketan liable to eviction u/s 7 (iv) If there is relationships of landlord and tenant between Kshetrabasi and Bijoyketan, is the latter liable to eviction u/s (92)(iv) for having denied,the title of the landlord to the suit House? (v) To what relief, if any, are Bidyadhar and Kshetrabasi entitled either jointly or separately? 3. Without proceeding to trial on these issues, the House-rent Controller passed an order on 10-6-1970 to the following effect u/s 7(3) of the Act: The opposite parties should pay the amount due without deducting the set off amount to the Petitioners at the rate of Rs. 50/. (Rupees fifty) fixed by the then H. R.C. As no papers have been filed to show whether such rate has been altered by any appellate Court, opposite parties will pay up the amount by 10.7-1970, failing which the opposite parties will be set ex parte. 4. Against this order Bijoyketan did not file any appeal. Srimati filed H.R.C. Appeal No. 63 of 1970. In that appeal Bijoyketan filed a cross-objection which was dismissed by the learned Additional District Magistrate (J). 5. In disposing of Srimati?s appeal, the learned A.D.M. (J) held that the House-rent Controller committed an error in holding that Srimati admitted the arrears of rent of Re. 50/- per month. He arrived at this conclusion as Srimati was not a party to the House-Rent Control Case No. 6 of 1964 to which Kshetrabasi and Bijoyketan were alone parties and in which the rent had been enhanced from Rs. 35/- to Rs. 50/- per month. He accordingly was of opinion that Srimati would be held to be in arrears of rent at the rate of Rs. 35/- per month. 35/- to Rs. 50/- per month. He accordingly was of opinion that Srimati would be held to be in arrears of rent at the rate of Rs. 35/- per month. Discarding her version regarding expenditure towards repairs and payment of municipal tax which cannot be adjusted before the House-Rent Controller without taking recourse to Section 10 of the Act, he held that Srimati was admittedly in arrears of rent. He accordingly modified the order of the House-Rent Controller and directed Srimati to pay the arrears of rent at the rate of Rs. 35/. per month since 1-6-1964 till the date of filing of her written statement within 30 days from 31-8-1970, failing which her defence would be struck off. The arrears of rent- as directed were not paid either by Srimati or her son. The case was fixed for hearing on 3rd of October 1970 when the tenants filed a petition for time for obtaining stay order from the High Court. As the arrears as directed had not been paid the House. Rent Controller declared the tenants to be ex parte, and fixed the case to 20th of October 1970 for ex parte hearing. 00 that day Kshetrabasi was examined and an order for eviction was passed., The writ application has been filed to quash the order dated 10-6-1970 passed by the House-Rent Controller, order dated 31-6-1970 passed by the A.D.M. (J) and the order dated 20-10-1970 passed by the House. Rent Controller by issuing writs of certiorari. 6. It would thus be seen that though the landlords disclaimed Srimati to be a tenant and impleaded her as a party, for determination of the relationship of landlord and tenant between themselves and Srimati before ordering eviction (see the underlined words here italic), yet both the Controller and the learned A.D.M. (J) directed her eviction by disallowing her to contest. They also overlooked that their orders dated 10.6.1970 and 31.8-1970 have resulted in an absurd situation. According to the landlords the rent payable before 1-2-1964 was Rs. 35/- per month and was Rs. 50/- per month thereafter. The order of eviction though jointly passed against both did not determine the condition precedent to granting a joint relief whether Srimati and her son were joint tenants or not. If the order of the Controller would stand, Rs. 50/- is payable by both. 35/- per month and was Rs. 50/- per month thereafter. The order of eviction though jointly passed against both did not determine the condition precedent to granting a joint relief whether Srimati and her son were joint tenants or not. If the order of the Controller would stand, Rs. 50/- is payable by both. This order was modified by the A.D.M. (J) whereby Srimati alone would pay at the rate of Rs. 35/- per month. Accepting for the present that rent payable is Rs. 50/- per month with effect from 1-2-1964, the learned A.D.M. (J) does not say how this amount would be shared between them. If the A.D.M. (J)?s order stands, Srimati has to pay Rs. 35/- per month and Bijoyketan has to pay Rs. 50/- per month as, according to the it learned A.D.M. (J), the order has become final and conclusive against him. Thus, though the landlords claim rent of Rs. 50/- per month only, Srimati has been debarred from contesting the proceeding for non-payment of rent at the rate of Rs. 35/- per month and her son has been declared for non-payment of Rs. 50/- per month. In effect, the mother and the son have to pay at the rate of Rs. 85/- per month to contest the proceeding even though the rent claimed is Rs. 50/- per month. 7. Relevant law may now be examined. Srimati and her son have been debarred to contest the proceeding u/s 7, Sub-section (3) which runs thus: Section 7(3) Where an application is made for the eviction of any tenant on the grounds specified in Clause (1) 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. 8. The essential conditions for operation of this sub-section are: (i) An application for eviction u/s 7(2)(i) for non-payment? of arrears of rent must be pending. (ii) The tenant must admit that there is such arrear. (iii) The tenant shall remit the admitted arrear rent or deposit the same with the Controller. (iv) On failure to make such payment, it would be open to the Controller not to allow the tenant to contest the proceeding for eviction. 9. of arrears of rent must be pending. (ii) The tenant must admit that there is such arrear. (iii) The tenant shall remit the admitted arrear rent or deposit the same with the Controller. (iv) On failure to make such payment, it would be open to the Controller not to allow the tenant to contest the proceeding for eviction. 9. The conditions prescribed in Sub-section (3) have no application to the case of Srimati. Though Srimati claims that she is a tenant under Bidyadhar, the landlords disowned her to be a tenant and have impleaded her by way of abundant caution for getting the matter determined by the controller so that if it is ultimately held that Srimati was a tenant, then she, would be evicted. If the tenancy of Srimati is yet to be established in the proceeding, she cannot be said to be a tenant and cannot be said to be in arrears of rent in the interlocutory matter u/s 7(3) despite her admission. Sub-section (3) cannot operate on the assumption that one is a tenant when the landlords refuse the same. Even Srimati herself does not admit that she is in arrears of rent. She gives accounts of her repairs and expenditure towards payment of municipal dues. It is not open to the Controller to apply Sub-section (3) after determination that the tenant was in fact in, arrears. Sub-section (3) will not operate unless there is admitted arrears of rent. Though in fact there is arrears the tenancy deny the same. Even in such a case the arrears of rent cannot be said to have been admitted. 10. Arrears of rent are to be recovered only through Civil Court and not through the Controller. But eviction can be permitted by the .Controller if it is found that the tenant is in arrears. The Controller cannot be utilised as a machinery for recovery of arrears of rent by a subterfuge that arrears are to be determined and that the rent must be paid before the tenant is permitted to contest the proceeding. 11. Thus the application of Srimati must succeed both on the ground that she is not yet proved to .be a tenant despite her admission and that there is no admitted arrears of rent. Even in this Court Mr. Mukherjee was asked whether the landlords accept Srimati as, a tenant. 11. Thus the application of Srimati must succeed both on the ground that she is not yet proved to .be a tenant despite her admission and that there is no admitted arrears of rent. Even in this Court Mr. Mukherjee was asked whether the landlords accept Srimati as, a tenant. He frankly stated that the landlords are not prepared to accept her as a tenant until so determined, by the Controller in course of hearing on the basis of materials on record. They cannot be permitted to approbate and reprobate. They cannot be allowed to say on the one hand that Srimati is not a tenant and at the same time to insist that arrears of rent to be paid, on failure whereof she would be precluded from contesting the proceeding. The order of the learned A.D.M. (J) dated 31-8-1970 is contrary to law and the order of the Controller dated 20-10-1970 in proceeding ex parte against Srimati must fail. The writ application of Srimati must succeed. 12. We would now take up the case of Bijoyketan. He does not admit to be a tenant under the landlords. His stand is that Srimati is the tenant. Such a defence may not be true but the fact remains that until the tenancy is established by the landlords the Court cannot say that Bijoyketan is a tenant. It is his defence that Srimati was the tenant and he had no liability to pay rent. He does not admit that he was in arrears of rent. On the very analysis, Section 7(3) has also no application to his case. The order of the Controller dated 10.6-1970 saying that he shall not be entitled to contest the proceeding was contrary to law. 13. Bijoyketan did not file any appeal but he was made a party Respondent to the appeal filed by Srimati. The learned A.D.M. (J) held that as Bijoyketan did not file any appeal the order dated 10-6-1970 became final and conclusive against him. He overlooked the position that the order dated 10.6.1970 was passed jointly against both Srimati and Bijoyketan. Any one of them could file the appeal by impleading the other as a party Respondent. The appeal was therefore properly constituted. The principles of Order 41, Rule 4, CPC will apply to such a case even if it does not apply in terms. Any one of them could file the appeal by impleading the other as a party Respondent. The appeal was therefore properly constituted. The principles of Order 41, Rule 4, CPC will apply to such a case even if it does not apply in terms. At any rate, in the absence of any statutory provision to the contrary, a common sense view of the matter should be taken. Order 41, Rule 4 merely embodies the common sense view. 14. Order 41, Rule 4, CPC runs thus: Where there are more Plaintiffs or more Defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the Plaintiffs or to all the Defendants, anyone of the Plaintiffs or of the Defendants may appeal from the whole decree, and thereupon the appellate Court may reverse or vary the decree in favour of all the Plaintiffs or Defendants, as the case may be. He the order dated 10-6-1970 proceeds on grounds common to both Srimati and her son. Their common case is that Srimati is the tenant and she was not in arrears of rent. The order dated 10-6-1970 directed both of them to pay at the rate of Rs. 50/- per month by 10-7-1970, failing which both of them would be set ex parte. The principles underlying Order 41, Rule 4, CPC directly apply to this case and in the appeal filed by Srimati if the order dated 10-6-1970 is to be set aside, it should also be set aside against Bijoyketan Though the learned A.D.M (J) was right in saying that the cross-objection did not lie, he acted contrary to law is not setting aside the order against Bijoyketan in the appeal filed by Srimati. 15. On the analysis made above, it is clear that both the Controller and the A.D.M. (J) exercised their jurisdiction illegally and committed errors of law apparent on the face of the record. Their orders are liable to be quashed. 16. Mr. Mukherjee places strong reliance on Om Prakash Gupta v. Dr. Rattan Singh and Anr. 1963 S.C.D. 629, and contends that the Controller has jurisdiction to strike out the defence if the rent as directed by the Court is not paid by the tenant. The Supreme Court decision was under the Delhi Rent Control Act (LIX of 1958) (hereinafter to be referred to as the Delhi Act). Rattan Singh and Anr. 1963 S.C.D. 629, and contends that the Controller has jurisdiction to strike out the defence if the rent as directed by the Court is not paid by the tenant. The Supreme Court decision was under the Delhi Rent Control Act (LIX of 1958) (hereinafter to be referred to as the Delhi Act). The main question raised before the Supreme Court was whether the Controller had jurisdiction to determine the question of the existence of relationship of landlord and tenant when one of the parties denied the same. Law is well settled that an authority or a Court of limited jurisdiction has the power to determine its initial jurisdiction. If it comes to the conclusion that there is such relationship, it can proceed to decide whether grounds for eviction exist. If, on the other hand, it determines that there is no relationship of landlord and tenant then it will stay its hand from examining the grounds of eviction. The decision of a Court of limited jurisdiction as to the existence of that relationship can however, be challenged in a Civil Court unless the civil Court?s jurisdiction is either expressly or impliedly barred by the special statute itself. The Supreme Court decision merely reiterated the aforesaid established principle of law. 17. The Supreme Court had further to examine if the defence of the tenant would be struck off u/s 15(7) of the Delhi Act if the tenant failed to pay the rent as directed u/s 15(1) thereof. 18. Section 15(1) of the Delhi Act is not limited or confined in its scope to admitted rents as in Section 7(3) of the Act. The Controller u/s 15(1) of the Delhi Act would make an order directing the tenant to pay arrears after giving the parties an opportunity of being heard. In such a case if the tenant denies the relationship of landlord and tenant, the Controller is entitled to make a prima facie determination for the limited purpose of passing the interim order directing the tenant to pay. 19. The facts involved in the Supreme Court decision were that on 2nd of April 1960 the Additional Rent Controller passed an order directing the tenant to deposit the arrears of rent from let August 1958 up to date at the rate of Rs. 50/- per month and future monthly rent month by month by the 15th of every following month. The facts involved in the Supreme Court decision were that on 2nd of April 1960 the Additional Rent Controller passed an order directing the tenant to deposit the arrears of rent from let August 1958 up to date at the rate of Rs. 50/- per month and future monthly rent month by month by the 15th of every following month. The landlords made an application on 16th of May 1961 u/s 15(7) of the Delhi Act for striking out the defence against eviction on the ground that the tenant had failed to make the payment or deposit as directed by the order dated 2nd of April 1960. The tenant denied that he had made any default in the regular payment of rent. He also asserted that if there was any such default it was not intentional and was the result of miscalculation. On 26th of July 1961 toe Additional Rent Controller ordered the defence of the tenant to be struck out. By an order dated 27th of July 1961 the Additional Rent Controller passed an ex parte order of ejectment against the tenant holding that prima facie relationship of landlord and tenant had been established. Their Lordships observed that when the Controller passed an order u/s 15(7) striking out the defence, the Controller must be deemed to have decided that the Appellant was such a tenant. Thus, before such an order is passed a finding of the existence of relationship must be recorded. The pertinent observation of the Supreme Court may be quoted: If the Appellant took his stand upon the plea that he was not a tenant he should have simply denied the relationship and walked out of the proceedings. In stead of that, he took active steps to get the protection against eviction afforded by the Act, by having an order passed by the Controller, giving him a locus poenitentiae by allowing further time to make the deposit of rent him. The Controller, therefore must be taken to have decided that there was a relationship of landlord and tenant between the parties. The Controller, therefore must be taken to have decided that there was a relationship of landlord and tenant between the parties. It would thus be seen that from the conduct of the, tenant in asking for further time to make deposit of the rent outstanding against him the Supreme Court drew the inference that the controller decide that there was relationship of landlord and tenant before striking out the defence of the tenant for non-payment of rent as directed. The aforesaid Supreme Court decision supports our conclusion that the defence cannot be struck out until there is an admission or determination that there is relationship of landlord and tenant between the parties. 20. The Delhi Act also does not contain any provision corresponding to Section 7(3) of the Act where the defence can be struck out only if the admitted rent is not paid. Under the Act the defence cannot be struck out by the Controller after determining that rent was in arrears and giving a direction that the same should be paid before the tenant is allowed to enter the defence. 21. In the result, the writ application is allowed. A writ of certiorari be issued quashing the three impugned orders. The case would go back to the House Rent Controller who would now try the issues formulated in his judgment and dispose of the case in accordance with law within three months from the date of receipt of the records with intimation to this Court which be sent back at once. In the circumstances, there will no order as to costs. A. Misra, J. 22. I agree. Final Result : Allowed