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1972 Supreme(Ori) 39
HIGH COURT OF ORISSA
G. K. Misra, C. J. And S. Acharya, J.
KASI ROUT - Appellant
Versus
MAHAMMAD SALEH - Respondent
Original Jur. Case 1038 Of 1969
Decided On : April 03, 1972
G.RATH, R.MOHANTY, S.N.Kar
The meaning of "requires" and "good faith" under Section 7 (2) of the Orissa House-Rent Control Act, 1958, and the relevance of factors in determining good faith.
Headnote:
LANDLORD AND TENANT - EVICTION - REQUIREMENT OF HOUSE IN GOOD FAITH - INTERPRETATION OF SECTION 7 (2) OF THE ORISSA HOUSE-RENT CONTROL ACT, 1958 - MEANING OF "REQUIRES" AND "GOOD FAITH" - RELEVANCE OF FACTORS IN DETERMINING GOOD FAITH - AGREEMENT BETWEEN LANDLORD AND TENANT NOT TO EVICT - ADMISSIBILITY IN EVIDENCE - SECTION 6 OF THE ACT - SCOPE AND EFFECT.
Fact of the Case:
The landlords filed an application for eviction of the tenants under Section 7 (2) of the Orissa House-Rent Control Act, 1958, alleging that they required the house in good faith for their own occupation. The tenants contested the application, alleging that the landlords did not require the house in good faith and that their act of eviction was mala fide to escape payment of the dues incurred by the tenants for improving and expanding the house.
Finding of the Court:
The court found that the landlords required the house in good faith for their own occupation. The court considered the fact that the landlords had no other house in Berhampur, that the father was disabled and had no earning capacity, that the son who had the earning capacity had to serve outside Berhampur, that he had to maintain a large family consisting of his old father, mother, brother, and sisters, and that the brother and sisters were to prosecute their studies at Berhampur.
Issues: 1. Whether the landlords required the house in good faith for their own occupation. 2. Whether the agreement between the landlord and tenant not to evict was admissible in evidence.
Ratio Decidendi: 1. The court held that the word "requires" involves something more than a mere wish and it involves an element of need to some extent at least. To "require" is not the same thing as to "desire". The landlord must show certain circumstances or facts proving some need or necessity. 2. The court held that "good faith" has not been defined in the Act. Section 3 (17) of the Orissa General Clauses Act, 1937 defines "good faith" thus: "a thing shall be deemed to be done in "good faith" where it is in fact done honestly, whether it is done negligently or not." Whether the landlords require the house in good faith is always a question of fact. 3. The court held that the agreement between the landlord and tenant not to evict was not admissible in evidence in the absence of a registered document incorporating the terms. According to the tenants, the total outstanding dues against the landlords were to the tune of Rs. 7,400/-. Even if the entire rent of Rs. 60/- per month is adjusted towards the discharge of the dues, it will take not less than ten years for the extinction of the outstanding liability. The alleged agreement pleaded by the tenants in pith and substance amounts to a lease for more than one year and is compulsorily registrable under Section 17 (1) (d) of the Indian Registration Act.
Final Decision: The court dismissed the writ application with costs.
G. K. MISRA, C. J.
( 1 ) OPPOSITE Parties 1 and 2 are the landlords. Opposite Party No. 1 died during the pendency of the writ application and his legal representatives have been substituted. Petitioner and opposite party No. 3 are the tenants under the landlords in respect of a house situate in Bhapur in the town of Berhampur. The case of the tenants is as follows. The house in question was let out to them in the year 1954 on a monthly rent of Rs. 20/- which was subsequently raised to Rs. 60/ -. The tenants with a view to start a hotel in the year in question made some alterations, additions and improvements with the consent of the landlords for which they had to incur expenses of Rs. 6,200/ -. For the amounts so spent by them, deceased opposite party No. 1, executed a pronote for Rs. 1,200/-on 2-71954 in their favour and further agreed to deduct Rs. 10/- from the house rent every month towards the dues. The landlords had outstanding dues of Rupees 7,400/- payable to the tenants. They agreed that unless and until the dues were paid up they would not ask the tenants to vacate from the house in question. To avoid payment of the outstanding dues the landlords mala fide filed an application for eviction on 22-11-1965 under Section 7 (2) of the Orissa House-Rent Control act, 1958 (Orissa Act 31 of 1958) (hereinafter referred to as the Act) alleging that they required the house in good faith for their own occupation. The application for eviction was allowed by the House Rent Controller by judgment (Annexure A)dated 6-1-1969. The appeal filed by the tenants was dismissed by the Additional district Magistrate (J), Berhampur by his judgment (Annexure B) dated 31-101969. The writ application has been filed by one of the tenants, impleading the cotenant as opposite party No. 3, asking for a writ of certiorari to quash the orders of eviction. The landlords contested the application alleging that they required the house in good faith for their own occupation.
( 2 ) THE concurrent finding of the authorities below is that the landlords require the house in good faith for their own occupation. The landlords are father and son. The father was serving in Vizag in the year 1958 when the house was let out. He remained in Vizag till 1958 with his family. From 1958 to June, 1961 he served as a driver under the B. D. O. , Polasara, and kept his family for convenience at chatrapur. While the father was at Polasara the son was appointed as a Junior engineer in the Public Works Department of the State Government Later he joined the railway service and was posted at Waltair in April, 1962. The family, therefore, shifted to Waltair where the son was employed and by then he was the only member capable to maintain the family, the father having become too old and incapacitated. The son stayed in Waltair till October 1962 when he was transferred to Anantha Giri in Dandakaranya but the family continued to stay in Waltair. At the time of filing of the application for eviction the son was working at Baitarani Road in Orissa. To avoid all inconvenience and a separate establishment at Waltair where he had kept his family consisting of his father, mother, brother and sisters the landlords wanted to live in their own house at Berhampur where there is a medical College and an Engineering College and the brother and sisters would have opportunity for study.
( 3 ) MR. Rath attacks the concurrent finding by saying that the landlords did not require the house in good faith and their act of eviction was mala fide to escape payment of the dues incurred by the tenants for improving and expanding the house. He makes a complaint that the House Rent Controller did not allow the tenants to lead necessary documentary evidence in support of their case that the landlords had taken large advances and had agreed not to evict the tenants until the outstanding dues were discharged. Factually Mr. Rath's contention is correct. In paragraph 5 of his judgment the House Rent Controlle
