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 2-7-1954 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 31-10-1969. The writ application has been filed by one of the tenants, impleading the co-tenant 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 Controller states thus:--
'x x x xxRespondents of course wanted to exhibit all accounts and the pronotes; butin view of the admitted facts this wasnot accepted. It is the clear case of thepetitioners that besides the suit housethey have no other property at Berhampur town'.
4. Mr. Rath does not dispute that the landlords have no other house in Berhampur and that the father was disabled and had no earning capacity while the son who has the earning capacity had to serve outside Berhampur. On the face of the findings that the landlords have no other house at Berhampur, that theson has got a transferable service whereby he moves from place to place, 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, conclusion is irresistible that the landlords require the house in good faith for their own occupation.
5. Section 7 (2) of the Act runs thus:--
'The landlord may, subject to the provisions of this Act, apply to the Controller for an order directing the tenant to put him in possession of the house, if he requires the house in good faith for the occupation or use of himself, any member of his family or of any person or persons for whose benefit, the house is held by him'.
The meaning of this sub-section, so far as this Court is concerned, is no longer res integre. It has been 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. The statute does not, however, insist that a need must be an absolute one in the sense that the landlord will not have any accommodation of any description that he must actually be in the streets before he can demand his own house for his own occupation. Even if the landlord is in occupation of a rented house he is not bound to continue his residence in the same. Rented premises carry certain amount of uncertainty of the tenure.
6. '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. The court is entitled to look to every relevant fact or circumstance affecting the landlords and their position. The nature and character of the landlord's temporary accommodation at the time when they are asking for the decree for possession, the insecurity or otherwise of the tenure that they might be holding at the time, the fact that they themselves are under a notice to quit, the scope, size and character of their requirement are all relevant factors that the Court might consider in that context (see para 18 in AIR 1950 Cal 249, (Basant Lal Sana v. P. C. Chakravarty).
It is also settled that hardship of the tenant is no consideration in determining whether the landlord acts in goodfaith or not or requires the house for hisown occupation.
7. The aforesaid view has been taken in (1965) 31 Cut LT 331, (Jammula Narasimhulu v. Kotini Sitaram) and 34 Cut LT 277 = (AIR 1968 Orissa 113), (Manakarani Hazra v. Mohinder Singh Jaggi). Though a large number of other decisions were cited the learned Advocates frankly conceded that the aforesaid two Bench decisions of this Court lay down the law correctly. In this view of the matter it is unnecessary to examine other decisions cited before us.
8. The main contention of Mr. Rath is that to escape payment of the outstanding dues the landlords have backed out from their agreement that they would not evict the tenants until the dues were paid. The authorities below have not accepted such an agreement but assuming for the present that there was such an agreement the same is 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 are 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. This difficulty having been pointed out to Mr. Rath he frankly conceded that the agreement cannot be advanced as an element to be taken into consideration for determining whether the landlords acted in good faith or not. This being the legal position it is unnecessary to examine whether the House Rent Controller and the appellate authority were justified in not allowing the tenants to prove the outstanding dues with the help of their account book and other documents.
9. To sum up, the disputed house is the only house which the landlords have at Berhampur. They have urgent necessity of housing their family members in the disputed house not only for the purpose of education of some of the members but to escape the rigour of moving the family from place to place according to the transfer of the son. The authorities below acted within jurisdiction and on evidence in recording the finding that the landlords require the house in good faith for their own occupation.
10. It was contended by Mr. Mohanty on the strength of Section 6 of the Act that the alleged agreement set up by the tenant is contrary to law. Section 6 runs thus:
'6. Notwithstanding anything to the contrary contained in any agreement or law no tenant shall be liable to be ejected except as provided in Section 7.'
Section 7 prescribed the conditions under which a tenant can be ejected. Section 6 puts an embargo on any agreement being entered into adverse to the interest of the tenant whereby he would be precluded from raising objections that the conditions prescribed in Section 7 have not been fulfilled. It is contended that the prohibition of a contrary agreement not only extends to tenants but also covers the case of landlords. In other words it is said that no agreement can be entered into between the tenant and the landlord prohibiting the landlord not to evict the tenant even though the conditions for eviction under Section 7 are fulfilled. The contention in the face of clear language of Section 6 is untenable. It says that the tenant shall not be liable to be ejected unless the conditions of Section 7 are fulfilled even though there may be an agreement entered into by the tenant contrary to those conditions. The same restriction has not been imposed so far as the landlord is concerned. The landlord can therefore enter into an agreement with the tenant that he would allow the tenant to continue in occupation of the tenement even though he has violated the conditions prescribed in Section 7. An illustration would make the position clear. Suppose a tenant is in arrears of rent and is a wilful defaulter. He is liable to be evicted under Section 7 (1) (i) proviso. It would be quite legal for the landlord to allow such a tenant to continue in occupation by condoning the default. On the other hand if the tenant enters into an agreement with the landlord that he will vacate the tenement when the landlord desires even though he might not have fallen into arrears of rent, the agreement would be hit by Section 6 of the Act. Mr. Mohanty ultimately conceded that the contention raised by him is not tenable.
11. On the aforesaid analysis, the writ application has no merit and is accordingly dismissed with costs. Hearing (fee of Rs. 100/-.
Acharya, J.
12. I agree.