Devidutta Agarwalla (Deceased by Lrs) and ors. Vs. Mohanlal Tebriwal - Court Judgment

Excerpt:
.....the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........mohapatra, j. 1. plaintiff is appellant against dismissal of suit for realisation of arrear house-rent. 2. case of plaintiff is that defendant was a monthly tenant under mm in respect of a house in jharsuguda town within municipal area to which orissa house rent control act was applicable. since 1963 the monthly rent was @ rs. 200/- payable on the first week of every month. when defendant defaulted to pay the rent from january, 1970 and initiated litigation against plaintiff and his family members, paintiff had to approach the house rent controller for eviction of defendant on the ground of wilful default in payment of monthly rent. house rent controller directed eviction of the defendant accepting case of plaintiff. thereafter, this suit has been filed in the year 1973 for arrear.....

Judgment:
ORDER

S.C. Mohapatra, J.

1. Plaintiff is appellant against dismissal of suit for realisation of arrear house-rent.

2. Case of plaintiff is that defendant was a monthly tenant under mm in respect of a house in Jharsuguda town within Municipal area to which Orissa House Rent Control Act was applicable. Since 1963 the monthly rent was @ Rs. 200/- payable on the first week of every month. When defendant defaulted to pay the rent from January, 1970 and initiated litigation against plaintiff and his family members, paintiff had to approach the house rent controller for eviction of defendant on the ground of wilful default in payment of monthly rent. House Rent Controller directed eviction of the defendant accepting case of plaintiff. Thereafter, this suit has been filed in the year 1973 for arrear of house rent for the period between 1-1-1970 to 30-4-1973, amounting to Rs. 8,000/-.

3. Defendant contested the suit denying the claim. While not disputing his relationship as monthly tenant, it is stated that monthly rent from 1958 was Rs. 50/- only. Plaintiff borrowed an amount of Rs. 6,000/-from defendant and it was stipulated that interest on the said amount is to be adjusted towards monthly rent. Suit for realisation of arrear monthly rent by plaintiff is not maintainable as other persons are also owners of the house and as such landlords entitled to the said amount.

4. Plaintiff examined two witnesses and proved documents marked Exts. 1 to 3. Defendant examined four witnesses and proved documents marked Exts. A to G series. On consideration of these materials trial Court found that arrear monthly rent due is @ Rs. 100/- per month as stipulated between parties. It, however, dismissed the suit on the ground that plaintiff alone cannot file the suit for recovery of arrear rent. This is grievance of plaintiff.

5. Any person who comes under the definition of 'landlord' in the Orissa House Rent Control Act is entitled to rent and can thus, file a suit for realisation of the same. Payment to one of the landlords is a valid discharge of liability of the tenant. Therefore, it is not necessary that all persons who are landlords are to join together to file a suit. Therefore, suit by plaintiff for realisation of arrear of house rent against defendant is maintainable. If defendant would have taken a plea that he has paid the rent to any other person who is also a landlord and had a valid discharge of his liability, question might have been different. The same is not the case. Trial Court is in error in finding that plaintiff cannot file the suit for recovery of arrear of rent alone. Besides, in this case on death of plaintiff, his legal representatives are now on record and the objection, if any, becomes technical in nature.

6. Plaintiff claimed arrear of rent to be Rs. 8,000/- & Rs. 200/- per month. Trial Court has found that monthly rent was Rs. 100/- per month. Accordingly, on the finding of the trial Court which has become final arrear claimed would be Rs. 4,000/-. Suit is to be decreed in respect of Rs. 4,000/-.

7. In result, appeal is allowed. Suit is decreed for Rs. 4,000/- only. Since trial Court has not granted any costs, I am not inclined to grant any costs in this appeal also.