Agrawal, C.J.
1. When this writ application was listed before a Division Bench, the correctness of certain observations made in three earlier Bench decisions of this Court was doubted, and accordingly it referred the matter to the Full Bench and that is how it has come before us.
2. In essence, the question falling for determination is the construction of Clause (i) of Section 7(2) of the Orissa House Rent Control Act, 1967 (for short 'the Act') dealing with 'default' on the part of the tenant andthe proviso thereto under which the House Rent Controller has to record a finding as towhether the default was 'wilful'.
3. Facts : --
The tenant-petitioner is in occupation of a room in the building of opposite party No. 1. The tenancy has commenced on 1-4-1975 under a Written agreement on a monthly rent of Rs. 180/-. According to the terms of the agreement, the rent for each month was to be paid by the 5th. of that month itself. A fresh agreement was executed between the parties on 14-1977 (Ext. 1) increasing the rent to Rs. 250/- per month, which was again increased in October, 1978 to Rs. 300/-. In the subsequent agreement (Ext. 1) also, the stipulation regarding the date of payment of rent was the same, i.e., 'on or before the fifth day of every calendar month in advance'.
4. The landlady (O .P. l) filed the case for eviction of the petitioner from the from the premises before the House Rent Controller, Cuttack on 3-2-1980 alleging inter alia that he had committed defaults in payment of the rent on 14 occasions since the beginning of his tenancy. Although the details of the defaults have not been specifically stated in the eviction application, according to the chart prepared by the learned counsel for the petitioner, 7 of those defaults were up to May, 1979. It has already been said that the fresh agreement of tenancy was executed as per Ext. 1. Undisputedly, therefore, the defaults, if any, prior to the execution of Ext. 1 could not be pressed into service and must be deemed to have been waived by the landlady. Mr. G. Rath, learned counsel appearing for her. also did not dispute this proposition.
The other defaults, which are relevant, are enumerated hereunder : --
Rent of the Months. Date of payment
July, 1979 18-8-1979
August, 1979 14-9-1979
September. 1979 13-10-1979
October, 1979 12-11-1979
November, 1979 14-12-1979
The rent for the month of December, 1979had not been received by the landlady until the date of the filing of the eviction application, i.e., 13-2-1980. Undisputedly, however, it was remitted in January, 1980 itself and accepted by the landlady.
5. On the evidence adduced, the authorities under the Act held the petitioner a defaulter and ordered eviction.
6. In this Court, it was contended before the Division Bench by the petitioner that the defaults were bona fide within the meaning of the proviso to Section 7(2)(i) and, therefore, the order for eviction was unsustainable in law.
In course of the bearing, the Bench entertained doubt regarding certain observations in the following cases :
(1) Manakarani Hazra v. Mohinder Singh Jaggi, (1968) 34 Cut LT 277 : (AIR 1968 Orissa 113).
(2) Sushil Chandra Palit v. Dhani Behera, ILR( 1971) Cuttack 1211.
(3) Parbati Goenka v. Giridharilal Kawantia, (1972) 2 Cut WR 1120.
The observations which have been adversely commented upon in the order of reference may also be indicated at this very place.
In Manakarani Hazra's case (AIR 1968 Orissa 113) :-
'It is to be made clear that in order to be wilful, a default need not be habitual or continuous. A single default in the facts and circumstances of particular case may be wilful.....'
(underlining is mine)
In Sushil Chandra Palit's case (ILR (1971) Cut 1211) :--
'On a plain reading of Section 7(2)(i) it is clear that to entail eviction the tenant need not be in arrears of rent at the time of the filing of the application under Section, 7(1) before the Controller. The language is 'the tenant has not paid or tendered the rent due from him' on the due date. In case of a tenancy according to the English calendar month the latest day of payment is the last day of themonth next following that for which rent ispayable. The tenant might have cleared allarrears by the date of the filing of theapplication under Section 7(1); yet, he incursthe liability for eviction if he had fallen inarrears at any time earlier within the periodof limitation.'
In Parbati Goenka's case (1972 (2) Cut WR1120) :--
'.....Payment of rent during the currencyof the month of February cannot be construed as payment of rent in advance for the month of February. If payment is made during the currency of the month it would mean that the tenant is in occupation of the house for some days without payment of rent. If the house is occupied even for a day, without earlier payment of rent then the payment cannot be said to have been made in advance. The unit of tenancy is a month, and when the payment of rent is to be made in advance for month, no single day of the month wouid be allowed to the tenant for occupation without payment of rent earlier.....'
According to the learned Judges of the Division Bench, these observations were too wide and not in keeping with the spirit of the. legislation and the observations made by the Supreme Court in the case of S. Sundaram v. V. R. Pattabhiraman, AIR 1985 SC 582, noticed later on.
7. In order to appreciate the force of the observation in the referring order and answer the question posed by me earlier, it would be proper to refer to the relevant provisions of the Statute which read as follows : --
'7. Conditions under which tenant can be ejected : --
(1) xxxxx
(2) If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied -
(i) that the tenant has not paid or tendered the rent due from him in respect of the house within thirty days after the expiry of the time fixed in the agreement of the tenancy with the landlord for payment of rent or in theabsence of any such agreement by the lasc day of the month next following that for which the rent is pay able; or
(ii) to (iv) xxxxx
he shall make an order directing the tenant to put the landlord in possession of the house and if the Controller is not so satisfied, he shall make an order rejecting the application ;
Provided that in any case falling under Clause (i) if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may give the tenant a reasonable time not exceeding fifteen days to pay or tender the rent due from him, to the landlord up to the date of such payment or tender and on such payment or tender the application shall be rejected.'
(Underlinings are mine)
It will appear from the above provision that the law permits a tenant to pay or tender the rent due from him in respect of the house within thirty days from the expiry of the time fixed in the agreement of the tenancy with the landlord or in the absence of any agreement, by the last day of the succeeding month.
We have already seen the agreement between the parties according to which the rent for a month was to be paid within five days of the beginning of the month itself. If the terms of the agreement is taken into consideration, obviously, all the payments noticed above are beyond the grace period of thirty days provided by law. But, it was submitted on behalf of the petitioner that in the eviction application itself, the landlady had not made out such a case. In the application it was mentioned that 'it was agreed upon by the parties that the rent for every month shall be paid by the opposite party to the petitioner by the 5th of every succeeding month.' This aspect of the case was also reiterated in the evidence as well when P.W. 1, Chaitan Charan Tripathy, the authorised agent of the landlady (the landlady did not examine herself), stated that as per the agreement rent was payable within the5th of the succeeding month. ,0nce this istaken to be the stipulation, then the. petitionerdid not commit any default in making paymentof the rent for the premises from July, 1979 toNovember, 1979 as the payments were allmade within the statutory grace period of 30days from the stipulated date.
8. The question that now remains for consideration is regarding payment of rent for the month of December, 1979.
In the written statement, the petitioner had alleged that the rent for this month was remitted to the landlady in January, 1980 when she had refused to accept the same hand to hand on the ground that the matter had already been taken to the court. The money order was also received by her. No other material to the contrary, either oral or documentary, has been brought on record to contradict this assertion of the tenant. In his evidence P,W. 1 has simply stated that 'from November, 1979, the rent is paid by the opposite party by money order since litigation has started'. On this evidence it is clear that the tenant has not committed any default within the meaning of Section 7(2)(i) of the Act, and the authorities have committed an obvious error of law in holding the petitioner a defaulter and ordering his eviction. The House Rent Controller in his order dated 20-7-1982 came to hold that the tenant had defaulted in payment of rent beyond all reasonable probabilities and accordingly ordered for his eviction. Unfortunately he took this view on the basis of the stipulation regarding the time of payment of the rent as per the agreement (Ext. 1), a case which was not founded by the landlady in court. The order of the Controller was also affirmed by the Chief Judicial Magistrate in appeal by the tenant, and for the selt'same reasons he also held the tenant a 'Regular defaulter'.
9. Having recorded the above conclusion, the petitioner's litigious journey comes to an end but in view of the order of reference to the larger Bench, I have to cover a little more distance to cover the doubts regarding the correctness of the earlier decisions of this court. But before I proceed to do that, let merecord my own views regarding the relevant provisions of the Act itself.
After independence, when the country gradually proceeded towards industrial developments and urbanisation, a tendency to shift tontowns grew. The population explosion also added to the problem of accommodation. The tremendous rise in the value of the house sites obviously led to the rapid increase in house rents creating various problems for the tenants at the hands of the landlords. The legislature therefore thought it necessary to regulate the relation ship of landlord-tenant in almost all the States as the provisions of the Transfer of Property Act gave practically no protection to the lessees from unreasonable eviction. The right of the landlords to evict a tenant or increase the. rent was controlled by the new legislations. It is on the pale of this legislative intendment that the Orissa House Rent Control Act, 1967 came into force. On a careful examination of the relevant provision and the scheme of the Act, it is manifest that the legislature has also enjoined some obligations on the tenant, primarily the obligation to pay to the landlord the rent for his occupation within a reasonable time limit besides some other restrictions, such as not to transfer his right under the lease or subject the premises or damage or impair the value of the property and the land. Thus, the general right of the landlord to evict a tenant was hedged by various conditions and restrictions.
10. The contextual backgrounds of some of the State legislations dealing within the subject, such as, Tamil Nadu, Andhra Pradesh, Orissa and Pondichery are similar and, according to the scheme of the Act, in order to entitle eviction on the ground of arrears of rent, the Rent Controller has to be satisfied on the following questions : --
(1) There is a default in payment of the rent by the tenant and
(2) The default was wilful.
In the Orissa Act, the expression has not been explained. But in the Tamil Nadu Act by adding an explanation in the year 1973, the expression was almost defined andaccording to the proviso added to Section 7(2)(i), just extracted above, a default simpliciter would not be sufficient to evict the tenant since a tenant may plead that the default was not wilful as there is a clear, difference in the law regarding 'default' and 'wilful default'. Though non-payment of rent within the time specified by the Act would amount to default, yet, it cannot be treated as wilful if the tenant's explanation is found to be acceptable to the Rent Controller. In order that a default may be regarded as 'wilful', the conduct of the tenant would be such as to lead to the inference that his omission was deliberate in violation of his obligation to pay the rent and not due to any accident or ex inadvertence or some other circumstances including some untoward conduct of the landlord himself. For that situation a further safeguard has been provided to the tenant giving him sufficient lee-way to get out of the rigour of the statutory provisions. The explanation added by Act 23 of 1973 to the-Tamil Nadu Act reads as follows : --
'Explanation. -- For the purpose of this sub-section, default to pay or tender rent shall be construed as wilful, if the default by the tenant in the payment or tender of rent continues after the issue of two months' notice by the landlord claiming the rent.'
In the absence of any such provision in the Qrissa Act, the question as to whether the tenant had any lawful excuse for the default to be judged from the facts and circumstances if each case. The Supreme Court, however, in S. Sundaram Pillars case (AIR 1985 SC 582) (supra) has laid down the following criteria for holding the default as wilful : --
'Thus, a consensus of the meaning of the words 'wilful default' appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course or conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to above.'
And with great respect I must hold that generally under the scheme of the Tamil Nadu Act and by and large in all other situations the above observation will provide a good guideline.
11. I myself have discussed some of these aspects recently referring to S. Sundaram Pillai's case (AIR 1985 SC 582) in Sankar Pradhan v. Banarasi Bai, (1987) 63 Cut LT 374. In that case all the earlier cases of this Court were also cited and considered by me but slightly in a different context. I now, however, proceed to consider those cases again.
12. In Menakarani Hazra's case (AIR 1968 Orissa 113) the learned Judge has given an illustration as to in what circumstance even a single default in payment of rent would be wilful. In the background of the illustration, the observation that the default need not be habitual or continuous appears to me to be quite apposite and cannot be said to be incorrect in view of the observation of the Supreme Court that it must be repetitive.
13. The observation in Sushil Chandra Palit's case (ILR (1971) Cuttack 1211) essentially speaks of a circumstance as to the effect of the payment of the arrears of rent by the tenant before the application for eviction is filed.
14. The observation in Parbati Goenka's case (1972 (2) Cut WR 1120) to the effect that 'if payment is made during the currency of the month, it would mean that the tenant is in occupation of the house for some days without payment of rent' is, however, unintelligible to me. Payment of rent for a month is always for that particular month at whatever point of time it may be paid, be it at the beginning or during the currency of the month or even at the expiry of the month.
15. Be that as it may, I would add two more observations to lay down a clear exposition of law, namely, that -
In a situation where a landlord has already received the arrears of rent before initiating the action for eviction, a question may arise as to how the proviso permits the tenant to purge his default by complying with the direction of the Rent Controller for paying off the arrears when he records a finding inhis favour that the default was not wilful. In my judgment, in such cases also if a finding is recorded that the default was not wilful, since the landlord happens to have received the rents, the direction for paying the arrear rent again would not arise and that part of the obligation would be deemed to have been already discharged by the tenant. Such a view and interpretation of the scheme of the Act would subserve the purpose and intention of the legislature and protect the respective rights of the landlord and the tenant without causing any injury to or violation of the legislative intendment which would be carried out to its full extent and would also strike a reasonable balance between the rights and obligations of both parties, i.e., the landlord and the tenant.
16. The inevitable result, therefore, that follows from the above discussions and the conclusions recorded by me earlier is that this writ application must succeed and the order of the House Rent Controller in Annexure-1 and the appellate order in Annexure-2 have to be set aside.
I would accordingly allow this application and quash Annexures 1 and 2.
In the circumstances, however, I shall make no order as to costs.
G.B. Patnaik, J.
17. I agree with the conclusion of my Lord the Chief Justice, but I would to add a few words with regard to interpretation of Section 7(2)(i) of the Act. Section 7(2) of the Act provides the grounds on which the Controller can direct a tenant to be evicted and those grounds have been prescribed in Clauses (i) to (iv). But a proviso has been added to Clause (i) which uses the expression '...... the tenant's default to pay ortender rent was not wilful....''. The properfunction of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case. It was held in Corpn. of the City of Toronto v. A. G. for Canada, 1946 AC 32 that the territory of a proviso, therefore, is to carve out an exception to the main enactment and exclude something which otherwise would have been within thesection. As a general rule, therefore, a proviso is added to an enactment to qualify or create an ex emption to what is in the enactment. In the words of Maxwell, 'the true principle is that the sound view of the enacting clause, the saving clause and the proviso taken and coastrued together is to prevail'. The proper function of a proviso, therefore, is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment a portion which, but for the proviso, would fall within the main enactment. It is well-recognised principle that a proviso is added to a principal clause primarily with the object of taking out (of) the scope of that principal clause what is included in it and what the Legislature desires should be excluded. The function of a proviso has also been discussed in S. Sundaram Pillai's case, AIR 1985 SC 582. Bearing in mind the aforesaid function of proviso, Section 7(2)(i) and the proviso must be construed harmoniously and such a construction being put, the only conclusion that can be arrived at is that default simpliciter would not be sufficient to evict the tenant, but it must further be shown that the default was wilful. In. fact the Supreme Court in S. Sundaram Pillai's case (supra) after referring to the provisions of the Rent Control Acts in Andhra Pradesh, Orissa and Pondichery observed : --
'The aforesaid Acts undoubtedly contemplate that a default simpliciter would not be sufficient to evict the tenant but it must further be shown that the default was not (sic) wilful. The Act, however, is silent on the mode and the manner in which a court may decide as to what is wilful and what is not wilful.....'.
Thereafter in para 25 of the judgment, the Supreme Court has given the finding as to what is the meaning of ''wilful default' which has already been extracted in the judgment of my Lord the Chief Justice. Therefore, in my opinion, the Controller under the Orissa House Rent Control Act can direct a tenant to put the landlord in possession of the house on being satisfied that the tenant has defaulted in paying the rent and such default was wilful. Consequently, the observations of this Courtin Manakarani's case, (1968) 34 Cut LT 277 : (AIR 1968 Orissa 113) as well as in Sushil Chandra Palit's case. ILR (1971) Cuttack 1211 must be held to be valid in the peculiar facts and circumstances of those two cases and not otherwise.
D.P. Mohapatra, J.
18. I have had the privilege of perusing the judgments of the learned Chief Justice and my learned brother G. B. Patnaik, J. I agree that the writ application is to be allowed and the orders of the Tribunals under the Orissa House Rent Control Act directing eviction of the petitioner from the house in question are to be quashed. But I will like to add a few words clarifying certain points that arise for consideration.
19. From the reference order it is manifest that the Division Bench referred the case to a larger Bench to decide the correctness of the decisions of this Court in the cases of Manakarani Hazra v. Mohinder Singh Jaggi, (1968) 34 Cut LT 277 : (AIR 1968 Orissa 113) Sushil Chandra Palit v. Dhani Behera, ILR (1971) Cuttack 1211 and Parbati Goenka v. Giridharilal Kawantia, (1972) 2 Cut WR 1120 in view of the decision of the Supreme Court in the case of S. Sundaram Pillai v. V. R. Pattabiraman, AIR 1985 SC 582. Therefore it is necessary to clearly state whether any of the principles laid down in the aforementioned cases need re-consideration in the light of the decision in Sundaram Pillai's case (supra).
In Manakarani Hazra's case the Division Bench of this Court rejected the contention that the default in payment or tender within the prescribed perbd would not entail eviction unless the arrears of rent remained outstanding till the date of the suit, as untenable in face of the palin language of Section 7(1)(i) of the Orissa House Rent Control Act. In para 13 of the judgment the Court observed as follows : --
'Undisputedly O.P. No. 1 fall into arrears of rent from 16-12-55 to 15-12-58. Though this amount was paid on 13-1-1959, prior to the filing of the application for eviction Section 7 of the Act on 31-1-1959, he incurred the liability for eviction under Section 7(1)(i).'
In para 16 of thejudgment it was observed :
'It is to be made clear that in order to be wilful, a default need not be habitual or continuous. A single default in the facts andcircumstances of a particular case may be wilful.....'.
This view was reiterated in Sushil Chandra Palit's case, in para 7 whereof it was observed as follows : --
'On a plain reading of Section 7(2)(i) it is clear that to entail eviction the tenant need not be in arrears of rent at the time of the filing of the application under Section 7(1) before the Controller.....'.
In Para 8 of the judgment the view was reiterated thus :
'The position of law is therefore clear that by the date of the application under Section 7(1) the tenant need not be in arrears. He entails the liability for eviction if he has not paid or tendered rent due from him by the last day of the month next following that for which rent is payable.'
In Parbati Goenka's case (1972 (2) Cut WR 1120) too the aforesaid view was reiterated. In para 10 of the judgment it was observed as follows : --
'.....The landlord can accept the moneyand at the same time can ask for eviction of the tenant on grounds that he is in arrears of rent, and is a wilful defaulter. No estoppel is created against the landlord for acceptance of rent....'
In the last two cases reliance was placed on the decision in Manakarani Hazra's case (AIR 1968 Orissa 113). This point engaged the attention of the Supreme Court in the case of S. Sundaram Pillai (AIR 1985 SC 582) (supra). In para 5 of the Judgment it was observed as follows : --
'So far as this appeal is concerned, as the entire rent had been paid up in pursuance of the notice dated 17-9-79 even prior to the filing of the suit it is manifest that on the date of filing of the suit no cause of action in praesenti having arisen, the suit should have been dismissed on this short ground alone as being not maintainable. As indicated above, it was not open to the landlord after having received the entire amount of arrears before filing of the suit to have filed a suit for past conduct of the tenant. This appeal, therefore, merits dismissal on this ground alone.'
Again in para 67 of the judgment the Court made the following observations : --
'In civil appeal No. 1178 of 1984, it would appear that though the tenant had committed a default but he had paid the entire rent wellbefore the filing of the suit by the tendlord. Infact, the suit for eviction was filed by theX.landlord not on the ground of pending arrearsbut to penalise the tenant for having defaultedin the past. Such a suit cannot be entertainedbecause once the entire dues are paid to thelandlord the cause of action for filing of a suitcompletely vanishes'. Hence, the suit arisingout of civil appeal No. 1178 of 1984 must bedismissed as being not maintamable and theorder of ejectment passed by the High Courtis hereby set aside.'
In view of these observations of the Supreme Court there is no scope for doubt that the observation of this Court in the decided cases referred to above have to be taken as no longer good law.
20. The other point which, in my view, needs to be clarified is regarding scope and ambit of the Proviso to Section 7(2)(i) of the act. Referring to various authorities and decided cases on the point the Supreme Court summed up its conclusions on the point in para 42 of the judgment as follows :
'We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes :
(1) qualifying or excepting certain provisions from the main enactment.
(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;
(3) it may be so embedded in the Act itself as to became an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and
(4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.'
Thereafter the Court proceeded to examine the working and the relevant provisions of the Act (Tamil Nadu Act) along with similar provisions contained in other three Acts, that is, Andhra Pradesh, Orissa and Pondicherry Acts and observed in para 54 of the judgment as follows : --
'With this little preface we would now examine the working and relevant provisions of the Act alone with similar provisions contained in the other three Acts, viz., A. P., Orissa, and Pondicherry Acts, which are almost in pari materia the proviso to Section 10(2) of the Act. The only difference between the Acts and the other Acts is that whereas an Explanation is added to the proviso to Section 10(2) of the Act, no such Explanation has been added to the provisions of the other three Acts; hence we have now to consider the combined effect of the proviso taken in conjunction with the Explanation.'
In para 60 the view of the Court was summed up as follows : --
'Another view which, in our opinion, is a more acceptable one and flows from the actual words used by the proviso is that where the Explanation does not apply in the sense that the landlord hasnot issued two months' notice, it will be for the Court to determine in each case whether the default is wilful having regard to the tests laid down by us and if the Court finds that the default is wilful then a decree for eviction can be passed without any difficulty.'
In this regard the Court accepted the observations of Ramamurti, J. in the case of Khivraj Chordia v. Maniklal Bhattad, AIR 1966 Mad 67 wherein it was pointed out that in order to be a 'wilful default' it must be proved that the conduct of the tenant was such as would lead to the inference that his omission was in conscious violation of his obligation to pay the rent. In para 25 of the judgment the Supreme Court summed up the position as follows :
'Thus, a consensus of the meaning of the words 'wilful default' appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent withoutany just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to above.'
From the intent and purpose of the Act, the purpose it seeks to achieve and the observations of the Supreme Court quoted above, it appears to me to be clear that the proviso to Section 7(2) falls in the third category and has to be read as embodied in the main provision itself so as to become an integral part of the enactment. Therefore, the landlord in order to succeed on his application for eviction on the ground of default must show that the tenant had committed wilful default in payment of rent. I agree that in the facts and circumstances ot'a case it may be possible to establish wilful default even on the basis of a single default.