Research › Search › Judgment

Orissa High Court · body

2003 DIGILAW 35 (ORI)

Krishna Prasad Lath v. Kamla Gupta

2003-01-16

PRADIP MOHANTY

body2003
JUDGMENT P. K. BALASUBRAMANYAN, C.J. — These two writ petitions arise out of two applications for eviction filed by the landlord of a building, one Umesh Prasad Gupta, under the Orissa House Rent Control Act, 1967 (hereinafter referred to as the ‘Act’). The claim was inter alia on the ground of bona fide need under Section 7(4) of the Act. The need referred to was that the build¬ing was required by the landlord for occupation in connection with his agricultural operations. The need set up was denied by the tenants. During the proceeding, by way of amendment, the tenants also introduced a plea that the title of the landlord having vested in the State, the landlord could not pursue the applications for eviction though the letting was admittedly by the landlord to the tenants. Pending the proceedings before the House Rent Controller, the landlord died. According to the ten¬ants, only some of the legal representatives were impleaded and the married daughters of the deceased landlord were not implead¬ed. Before the House Rent Controller, the tenants argued that the need set up was not bonafide and further argued that the applica¬tions were liable to be rejected on the ground that all the heirs of the landlord had not been impleaded. The House Rent Control¬ler, on a consideration of the pleadings and the evidence adduced in the case, came to the conclusion that the bona fide need set up was established. It further took the view that in view of the legal position brought to its notice that a co-owner landlord is entitled to seek eviction from a tenant, the applications could not be rejected for non-joinder of the married daughters and that contention raised by the tenants was unsustainable. Finding the bonafide need established, the House Rent Controller ordered eviction. The said order was challenged in appeals before the Chief Judicial Magistrate, Bargarh, the Appellate Authority under the Act. The Appellate Authority also came to the conclusion that the application pursued by some of the legal heirs of the de¬ceased landlord could not be dismissed on the ground that all the legal representatives, particularly the married daughters of the deceased landlord, have not been impleaded. The Appellate Authority also came to the conclusion that the application pursued by some of the legal heirs of the de¬ceased landlord could not be dismissed on the ground that all the legal representatives, particularly the married daughters of the deceased landlord, have not been impleaded. The Appellate Author¬ity, on a reconsideration of the relevant aspects, came to the conclusion that the bona fide need set up by the landlord stood established and the need had been rightly found by the House Rent Controller. Thus, the appeals were dismissed. The common decision of the Appellate Authority in the two appeals is challenged in these writ petition by the respective tenants. 2. Mr. Mukherji, learned Senior Counsel appearing on behalf of the tenants contended that the bona fide need set up by the original landlord, Umesh Prasad Gupta, was a need to have the building for his own occupation for the purpose convenience in cultivation of the agricultural property in the village and such a need set up by the landlord did not survive after his death or subsist after his death and the right to evict on that ground did not survive to his legal representatives. We find on a scrutiny of the orders of the authorities below, that no such contention was raised either before the House rent Controller or before the Appellate Authority. Moreover, it was one of the legal represen¬tatives of the original landlord who was examined as P.W. 3 and who spoke to the bona fide need of the landlord. That apart, this proceeding for eviction was started in the year 1985 and the landlord has already been kept at bay for more than 17 years. We also do not think that such a mixed question of fact and law should be permitted to be raised for the first time in this proceeding under Articles 226 and 227 of the Constitution of India. After all, on the facts of this case, the proposition sought to be canvassed by the Senior Counsel is not such a pure question of law that has only to be upheld by this Court. It is at best a mixed question of fact and law. In that situation, we are not inclined to permit the petitioners to raise that conten¬tion for the first time in this Court. We thus overrule that contention. 3. Mr. It is at best a mixed question of fact and law. In that situation, we are not inclined to permit the petitioners to raise that conten¬tion for the first time in this Court. We thus overrule that contention. 3. Mr. Mukherji then contended that by way of an amend¬ment, the tenants had raised a contention that the rights of the landlord had been lost because of the vesting of his rights in the Government and that the Government was necessary party and that the landlord could not maintain the application for eviction in view of such vesting. This plea incorporated by way of an amendment in the objection was obviously not pursued by the ten¬ants either before the House Rent Controller or before the Appel¬late Authority. In fact, though raised in the written statement by way of an additional written statement, it is sought to be put forward for the first time by Mr Mukherji in this proceeding before us. Here again, we are not inclined to permit the peti¬tioners to raise such a contention for the first time at this distance of time. Moreover, even if the ultimate title is lost, it is possible to say that the landlord can still seek eviction of his tenant on the strength of the letting especially when the original letting is admitted. 4. Learned counsel then contended that some of the co-owner landlords or some alone of the legal representatives of the original landlord cannot maintain an application for eviction or pursue the application for eviction and the failure to bring on record the married daughters of the deceased landlord, is fatal to the maintainability of the application. Learned counsel re¬ferred to the decision in Mohammad Asgar Ali v. Narayan Mohapatra and others : I.L.R. 1958 Cuttack 31; Smt. Chhoti Dei v. Gangadhar Misra and another : AIR 1953 Orissa 245; Biharilal v. Wasundara¬bai : AIR 1956 Madhaya Bharat 35; and South Estern Railways v. Satyanarayan alias Satyacharan Sahu and others : 53 (1982) C.L.T. 451 in support. Counsel contended that in any event, the other heirs should have been impleaded at least as opposite parties in the petition for eviction and the failure to do so should result in the dismissal of the petition. Counsel contended that in any event, the other heirs should have been impleaded at least as opposite parties in the petition for eviction and the failure to do so should result in the dismissal of the petition. The authorities below have negatived this contention based on subsequent decisions and especially the decision of the Supreme Court in Sri Ram Pasricha v. Jagannath and others : AIR 1976 S.C. 2335 . In the said deci¬sion, the Supreme Court has clearly held that a co-owner landlord is as much a landlord of the entire property, as any sole owner of property and a landlords can maintain or continue the applica¬tion for eviction and the non-impleading of all the heirs of the original landlord is not fatal. Learned Senior Counsel also re¬ferred to the decision in Kanta Udharam Jagasia v. C.K.S. Rao : (1998) 1 S.C.C. 403 . The said decision is of no assistance to the tenants in this case. The decisions prior to the decision in Sri Ram Pasricha’s case (supra) need not detain us. None of those decisions could be of much assistance in view of the decision of the Supreme Court in Sri Ram Pasricha’s case (supra). But, the decision of this Court in S.E. Railways’ case (supra) was ren¬dered subsequent to the decision of the Supreme Court in Sri Ram Pasricha’s case. On a scrutiny of the decision of this Court in S.E. Railways v. Satyanarayan alias Satyacharan Sahu and others : 53(1982) C.L.T. 451, we find that the decision of the Supreme Court in Sri Ram Pasricha’s case (supra) was not brought to their Lordship’s notice. Therefore, the said decision cannot be accept¬ed as an authority for the proposition that a co-owner landlord cannot maintain an application for eviction against a tenant. On facts, we must also notice here that the widow and all the sons of the deceased landlord came forward and got themselves implead¬ed in the application for eviction and according to the tenants, the married daughters alone were not impleaded. The need was for residence. In the circumstances, considering the social ethos it is clear that the married daughter resides in the house of her husband and not in her parental house in normal circumstances. Hence, the need is that of the widow and the sons. The need was for residence. In the circumstances, considering the social ethos it is clear that the married daughter resides in the house of her husband and not in her parental house in normal circumstances. Hence, the need is that of the widow and the sons. It cannot also be said in the circumstances that there was any lack of bona fides on the part of the landlord in not bringing on record the married daughters as petitioners in the application for eviction. In our view, both the House Rent Controller and the Appellate Authority have rightly come to the conclusion that the applica¬tion for eviction cannot be dismissed on the ground that all the legal representatives of the deceased landlord have not been impleaded. 5. On the question of bona fide need, we find that the authorities below have arrived at the aforesaid conclusion after considering the relevant aspects and the evidence on record. The evidence of P.W. 3 has been accepted. It is not shown that the findings rendered by the authorities suffer from any error appar¬ent on the face of the record justifying our interference. 6. We find that the proceedings were commenced in the year 1985 and they have lingered on for all these years. On all over¬all consideration of the relevant circumstances, we are not satisfied that any interference by us under Articles 226 and 227 of the Constitution of India is warranted or would be justified or would be in the interests of justice. 7. We, therefore, dismiss these writ petitions. But, learned Senior Counsel Mr Mukherji submitted that some reasonable time may be granted to the tenants to vacate the building and a time of one year would be reasonable. Of course, we have not heard the landlords on that question. 7. We, therefore, dismiss these writ petitions. But, learned Senior Counsel Mr Mukherji submitted that some reasonable time may be granted to the tenants to vacate the building and a time of one year would be reasonable. Of course, we have not heard the landlords on that question. But, considering the cir¬cumstances as a whole, we grant time to the tenants till 30th November, 2003 to vacate the respective buildings on condition that the respective tenants file undertakings before the Civil Judge (Junior Division), Bargarh, within six weeks from today undertaking to unconditionally surrender the buildings on or before 30.11.2003, and further undertaking to pay the entire arrears of rent till 31.1.2003 and undertake to continue to pay compensation for use and occupation at the rate at which they were paying rent every month until 30.11.2003 with a further condition that the tenants will deposit the rent or compensation for use and occupation due including for the month of January, 2003 within two months from today, in the Court of Civil Judge (Junior Division), Bargarh, and continue to deposit for the subsequent months before the 10th of the succeeding month till they surrender possession. If any of these conditions are not fulfilled by the tenants, they will not be entitled to the grant of time as per this order. Application dismissed.