G.K Misra, J.:— Deceased Jaharilal was the owner of a residential house at Mangiabag bearing Holding No. 103 in Ward No. 22 of the Cuttack Municipality. The house at present bearing Holding No. 120. He died on 16th of September, 1963 leaving behind the petitioners as his sole heirs. Jaharilal had let out the said premises to Mahindra Singh Jaggi (Opp. 1) on a rental of Rs. 70 per month with effect from 16-8-1952 on the basis of a written agreement. The case of the petitioners as narrated in the writ application runs thus:

2. Opposite party No. 1, deliberately did not pay the rent of the premises from the third month of the tenancy. On the other hand, he filed an application before the House Rent Controller in House Rent Control Act Case No. 11 of 1953 for fixation of fair rent. The Controller determined the rent at Rs. 33 per month. In appeal, it was raised to Rs. 60 per month by an order dated 24-1-1955. On 7th of November 1952, O.P 1 removed the wall in between the two bed rooms of the building and converted the rooms into a shop room and opened a shop therein, in contravention of the terms of the tenancy. Jaharilal instituted Money Suit No. 96 of 1953 in the court of the Munsif, First Court, Cuttack for recovery of compensation for damages caused to the house. The suit was decreed with costs. On 28th of December, 1953. O.P No. 1 without the knowledge and consent of Jaharilal made further additions and alternations. He demolished certain portions of the house, fixed collapsible gates and windows and caused heavy damages to the house. Jaharilal filed Title Suit No. 6 of 1954 in the Court of the Munsif, First Court, Cuttack for injunction restraining the O.P No. 1 from causing further changes and damages to the house and for recovery of compensation. That suit was decreed with costs. O.P No. 1 willfully defaulted to pay rent. Jaharilal filed Money Suit No. 71 of 1955 in the court of the Munsif. First Court. Cuttack for recovery of house rent from November 1952 to February, 1953. It was decreed with costs. Jaharilal instituted Title Suit No. 238 of 1955 in the court of the Munsif, First Court, Cuttack against O.P No. 1 for eviction and recovery of house rent and damages. As before the conclusion of the case, the Orissa House Rent Control Act (hereinafter called the Act) had come into force, the prayer for eviction was not held to be maintainable in civil court and accordingly only a decree for recovery of rent and cost was passed. Again Jaharilal had to institute Money Suit No. 664 of 1958 in the court of the Munsif, Second Court, Cuttack for recovery of house rent. The Munsif decreed the suit but did not allow costs holding that the tenant was not to blame for non-payment of house rent. Jaharilal preferred Money Appeal No. 40 of 1959 against the order refusing cost and the appeal was allowed on 12-8-61. Jaharilal filed an application before the House Rent Controller, Cuttack in H.R.C Case No. 8 of 1959 for eviction of the O.P No. 1 on grounds that the O.P No. 1 was a wilful defaulter in making payment of rent, had damaged the house, used it for purpose other than that for which it was let out without the knowledge and consent of the landlord, materially impaired the value and utility of the house and the landlord required the house in good faith for the occupation of himself and members of his family. The application for eviction was allowed on 31-12-62 by the House Rent Controller. O.P No. 1 was directed to put the landlord in possession of the house within 15 days of the receipt of the order. O.P No. 1 preferred an appeal in House Rent Control Appeal No. 4 of 1963 before the A.D.M (Executive) Cuttack. He by his judgment dated 15-7-1963 allowed the appeal and set aside the order of eviction passed by the House Rent Controller. Though in the petition for eviction, there was no prayer for fixation of fair rent, the A.D.M (Ex.) fixed the rent at Rs. 80 per month payable from 1-8-1963. Against this order. Jaharilal filed O.J.C No. 298 of 1963. The writ application was withdrawn for filing a review before the A.D.M The review application was dismissed by the A.D.M on 18-2-1964. Thereafter, the present writ application has been filed. Opposite Party No. 1 filed a counter. So far as the various litigations and facts referred to in the writ application, there is not much variance between the parties, though different interpretations and constructions are given to those facts. The substantial assertions made in the counter are that the house was not originally rented only for residential purpose. The alterations and changes in the structure were admitted. But it was said that the alleged alterations made by him to the building were essentially for convenience of the O.P No. 1 and that the said alteration greatly improved the value of the building and had not deteriorated its utility. O.P No. 1 asserts that he was not a defaulter much less a wilful defaulter. He deposited all the arrear rents in court on the 13th of January 1959 prior to the filing of application for eviction on 31-1-1959. The petitioner's case that he required the house bona fide for his own purpose is denied.

3. On 18-1-1967 the petitioner No. 1 filed an application for amendment of the writ petition stating therein that Jaharilal had sent a notice dated 12-8-1958 by registered post through his advocate Sri D.N Biswal calling upon O.P No. 1 to vacate the premises by the 15th December, 1958 and before the 16th of December, 1958 or by such other date expiring with the end of the month of tenancy. A counter to this petition was filed on 1967 stating that though O.P No. 1 received some notice of eviction some time in November, December, 1958, the O.P No. 1 never received a notice in terms of Section 106 of the Transfer of Property Act. The matter was heard on 14-12-1967. The petitioners did not press that amendment petition which was accordingly rejected.

4. The House Rent Controller recorded the following findings:

(i) Opposite Party No. 1 habitually defaulted to pay rent within the stipulated statutory period.

(ii) O.P No. 1's conversion of the house into shop room and fixing collapsible gate thereto deteriorated the value and living condition of the house.

(iii) The petitioner's requirement of the house for accommodation of his family and his claim to get back the house appeared to be bona fide.

5. On these grounds, he directed eviction.

6. The appellate court accepted the position that the house was converted into a shop house and was fitted with septic latrine and collapsible gate. But he did not allow eviction as already damages had been awarded to the petitioners for the injury caused to the house. Regarding payment of rent, he held that in view of the protracted litigation between the parties, there had been payments at long interval through the court and by then the appellant had paid up all the dues for the period ending May, 1963. As regards bona fide requirement, he held that the petitioner would have no difficulty in continuing to reside in the main house and i+ would be a hardship to evict the tenant

7. He accordingly dismissed the application for eviction.

8. Mr. R. Mohanty for the petitioners raised the following contentions:

The appellate court committed errors apparent on the face of the record in respect of his finding in as much as bald conclusions were recorded without any reference to the materials on record and by admitting inadmissible evidence, his ultimate conclusion has been vitiated. The appellate court failed to properly construe the various provisions for eviction under S. 7 of the Act and thus exercised his jurisdiction illegally.

9. Mr. B.M Patnaik conceded that the judgment of the appellate Court was highly unsatisfactory. He, however, contends that the appellate Court's conclusions on all the points were based on some evidence and in a writ of certiorari, this Court should not quash the order of the appellate Court merely on the basis of improper appreciation of evidence. He further contends that though the tenancy was a monthly one no notice to quit under Section 106 of the Transfer of Property Act had been served and as such, there can be no eviction. The contentions on either side require careful examination.

10. Before answering the various questions raised, it is necessary to examine the scope and ambit of the jurisdiction and power of this Court in writ of certiorari. Syed Yakoob v. Radhakrishnan, AIR 1964 SC 477 is the leading authority on the point. In paragraph 7 their Lordships observed thus:

“A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or requestioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from he said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised”

11. In paragraph 8 their Lordships elucidated what is an error of law apparent on the face of the record. Their Lordships observed thus:

“Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record.”

12. In the light of the aforesaid principles, the various contentions raised are to be examined.

13. The first contention of Mr. Patnaik is that the petitioners did not serve any notice on opposite party No. 1 in accordance with Section 106 of the Transfer of Property Act. In para 4 of the affidavit filed by Opposite Party No. 1 on 13-12-1967 he stated that though he received some notice of eviction sometime in November-December, 1958, he did not receive any notice in terms of or, as contemplated by Section 106 of the Transfer of Property Act. There is no dispute in this case that the original written agreement prescribed that opposite party No. 1 was liable to eviction without service of notice. On the expiry of one year from the original agreement, the tenancy was a monthly tenancy Under Section 106 of the Transfer of Property Act, in the absence of contract to the contrary, a lease of immoveable property from month to month is terminable on the part of either of the lessor or the lessee, by 15 days' notice expiring with the end of the month of Tenancy. Admittedly the notice to quit & the reply thereto were not exhibited in the counts below. Copies of such a notice and the reply thereto were filed in the High Court to which objection was taken by Opposite Party No. 1. After the matter was fully heard the objection of opp. Party No. 1 was upheld as for the first time the documents could not be admitted in High Court in support of the case of service of notice and the petitioners did not accordingly press the amendment application regarding service of notice to quit under Section 106 of the Transfer of Property Act.

14. Mr. Ranjit Mohanty, however, contended that the parties went to trial with the definite knowledge and assumption that the necessary notice to quit under Section 106 of the Transfer of Property Act had been served and that this Court would exercise its jurisdiction illegally if such a contention is allowed to be canvassed for the first time in the High Court.

15. Position of law is well settled that before an order of eviction can be passed, the landlord must comply with the provisions of Section 106 of the Transfer of Property Act besides complying with one or more of the requirements of S. 7 of the Act: See Abanikumar v. Rajgopal, 33 Cut LT 148 : (AIR 1967 Ori 113) It is now necessary to examine the contention of Mr. Mohanty that this question cannot be permitted to be canvassed for the first time in the High Court in the facts and circumstances of this case. In paragraph 9 of the petition filed before the House Rent Controller under Section 7 of the Act, there was a clear averment that Opposite Party No. 1 fell into arrears of the rent and did not vacate the house for the occupation of Jaharilal requiring it in good faith and a notice was served on Opposite Party No. 1 by the advocate of Jaharilal on 12-11-58 for vacating the house and a reply was given by Opposite Party No. 1 raising frivolous objections through his advocate. In paragraph 10 of the written statement, filed by Opposite Party No. 1, the allegation that Jaharilal required the house for his own occupation was denied. It was also stated that Jaharilal had other houses and that he wanted to take this house to let out on hire to other persons who were rival to Opposite Party No. 1 in business. There was however no denied of the factum of service of notice for vacating the house. Mr. Mohanty contends that as there was no denial of the service of notice to quit, it was not necessary for Jaharilal to admit into evidence the notice to quit and the reply thereto and the entire trial proceeded on the undisputed position that there was service of notice to quit and that this point cannot be raised for the first time in the High Court. There is considerable force in this contention. Notice under Section 106 of the Transfer of Property Act is mandatory in law and the onus is on the landlord to plead and prove it. In paragraph 9 of the petition before the Rent Controller, there was a reference to a notice to quit though its exact terms and whether it was in accordance with Section 106 of the Transfer of Property Act, were not clearly stated. In the written statement Opposite Party No. 1 should have clearly asserted that no notice to quit was served, and even if there was any such notice, it was not in accordance with Section 106 of the Transfer of Property Act. The trial proceeded on the assumption that there was notice to quit in compliance with the provision of Section 106 of the Transfer of Property Act. It was not urged before the trial court and its judgment does not at all make any reference to this point. Opposite Party No. 1 lost in the trial Court. In the memorandum of appeal filed before the Additional District Magistrate, such a ground was not taken. The point was not also canvassed before the lower appellate Court. On a perusal of the judgments of the courts below, it cannot be said that there was an error apparent on the face of the record regarding the objection as to non-service of the notice under Section 106 of the Transfer of Property Act. On the other hand, in view of the averment in paragraph 9 of the petition before the House Rent Controller that a notice to quit was served, and in the absence of a denial of such averment and objection not being raised in both the courts below it would be exercising the jurisdiction of this Court illegally to allow such a point to be canvassed for the first time in the High Court in exercise of our jurisdiction in a writ of certiorari

16. The point involves both a mixed question of law and fact. We accordingly disallow the objection that there was no notice to quit.

17. It is now necessary to examine the various grounds on which eviction was sought and how far there is error of fact and law apparent on the face of the record in the findings of the lower appellate Court.

18. The first ground of eviction is based on Section 7(1)(i). Proviso of the Act. It runs thus:

“Section 7(1):—A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. 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 or in the absence of any such agreement by the last day of the month next following that for which the rent is payable,

the Controller shall make an order directing the tenant to put the landlord in possession of the house and if the Controller is not satisfied, he shall make an order rejecting the application:

Provided that in 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”.

19. The sub-section lays down in unequivocal terms that if the tenant does not pay or tender the rent due from him within the stipulated period prescribed therein, the Controller shall pass an order of eviction. Where there is no agreement, the tenant is to pay or tender the rent by the last day of the month next following that for which rent is payable. Suppose the rent is payable for the month of January 1967 and the rent is not paid or tendered by 28-2-67, then the Controller shall make an order of eviction. If the proviso had not been inserted, the Controller has no option to condone the default and a peremptory order of eviction is to be passed.

20. The proviso enacts that the Controller can go into the question whether the tenant's default to pay or tender rent was not wilful. Manifestly the onus is on the tenant to establish that the default was not wilful. If the Controller is satisfied that the default was not wilful, he shall give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due from him upto the date of such payment or tender. If the tenant pays or tenders the amount within that period, the application shall be rejected.

21. In this connection Mr. Patnaik raised the following contentions:

(i) Default in payment or tender of rent within the statutory period is not enough for passing an order of eviction. The arrear of rent must remain unpaid or outstanding till the date of the suit. In other words, whatever be the arrears, if the amount is paid or tendered before the institution of the suit, no order of eviction can be passed;

(ii) The landlord filed a suit in the Civil Court for recovery of arrears of rent and got a decree. Thus the arrears of rent merged in the decree and lost the identity as “arrears of rent”. After the decree is passed, there is no arrear of rent and S. 7(1) has no application;

(iii) The Act came into force at Cuttack, where the disputed house is situate, on 1-1-1959. The application for eviction was filed on 31-1-1959 and the arrears in respect of which application for eviction was filed had been paid on 13-1-1959. So by the date of the suit, the tenant was not in arrears. The Act is not retrospective and there cannot be eviction in respect of the arrears which had been paid prior to the institution of the suit; and

(iv) Default on the tenant's part to pay or tender was not wilful. In such a case, the Controller is to give a reasonable time, not exceeding 15 days, to pay or tender the rent due. The tenant's position is not worsened by the mere fact that all arrears had been paid prior to the institution of the application for eviction.

22. Each of these contentions requires careful examination.

23. The first contention that the default in payment or tender within the prescribed period would not entail eviction unless the arrears of rent remained outstanding till the date of the suit is untenable in face of the plain language of S. 7(1)(i). Two periods for payment or tender have been statutorily prescribed. One is that the payment or tender would be made within thirty days after the expiry of the time fixed in the agreement of tenancy with the landlord. The other is where there is no such agreement, payment or tender of rent would be made by the last day of the month next following that for which the rent is payable. But for the proviso the sub-section is mandatory Nonpayment or non-tender within any one of the aforesaid stipulated periods entails eviction. There is no provision that arrears must be outstanding by the date of the application for eviction.

24. The contention leads to fantastic results, In such a case, no tenant would pay or tender within the stipulated period if he so chooses and the landlord would always be bound to file a suit in the Civil Court for recovery of rent. It is now well settled that before an application for eviction under Section 7 is filed, the landlord is bound to serve a notice to quit under Section 100 of the Transfer of Property Act. The moment such a notice is served, the tenant would come forward with a further payment or tender of the entire rent due before the expiry of the period in the notice. Thus on this ground an application for eviction can always be frustrated at the tenant's choice, and Section 7(1)(i) would be held unworkable and redundant. This simple analysis reasons the hollowness of the contention. The identical view was also taken on a similar provision in 58 Cal W.N 968, Hari Singh v. Dwarkin and Son, Ltd., At pp. 973 the conclusion was put thus—

25. In my view, the words “is in arrears” in clause (i) of the Proviso to Section 12, do not mean or imply that the amounts in respect of which the defaults are committed must remain unpaid till the date of suit for ejectment, in order to justify the court in passing a decree for possession….

26. This observation has our respectful concurrence. The first contention is without force and is accordingly rejected.

27. Undisputedly, O.P No. 1 fell into arrears of rent from 16-12-1955 to 15-12-1958. Though this amount was paid on 13-1-59, prior to the filing of the application for eviction under Section 7 of the Act on 31-1-1959, he incurred the liability for eviction under Section 7(1)(i).

28. The second contention in this regard is that the landlord had filed Money Suit No. 664/58 in the Civil Court for recovery of arrears of rent for the aforesaid period and got a decree. Thus, the arrears of rent merged in the decree and lost their identity as “arrears of rent”. There being no arrears by the date of the filing of the application, Section 7(1)(i) cannot be invoked.

29. This contention suffers from a fallacy. A decree does not extinguish the liability. Even assuming that the arrears of rent merged in the decree and lost their identity, the tenant cannot be said to be not in arrears of rent until the amount is realised in execution.

30. That apart, the arrears of rent do not lose their character merely because a decree has been passed in respect thereof. The only effect of the passing of a decree is that the cause of action is merged in the decree. Until the payment of the decretal dues is made, the rent is in arrears. In AIR 1953 All 113, Chhotey Lal…Defendant- v. L. Chhakki Lal Alias Hari Shanker…Plaintiff. the concept was put thus:—

“So long as the rent has not been paid, whether a decree has been passed for the same or not, it is rent in arrear. It remains ‘rent’ even if a decree is passed, and so long as it is not paid it is in arrear. There is no reason for thinking that the words “arrears of rent” in Section 3(a) mean only undecreed arrears of rent.”

we are in full agreement with this observation.

31. Despite the decree, therefore, O.P No. 1 was in arrears of rent.

32. The third contention is that the Act came into force on 1-1-1959. O.P No. 1 fell Into arrears of rent prior to the passing of the Act. The Act is not retrospective and as such there cannot be eviction for such arrears.

33. Section 1, sub-section (3) lays down that the Act shall come into force in such local area or areas and on such date or dates as the State Government may, by notification, appoint in this behalf. The Act was brought into force in Cuttack on 1-1-59, The language of the Section is clear that the Act is prospective and not retrospective. Law is, however, well settled that a statute is not applied retrospectively merely because a part of the requisites for its action is drawn from a moment of time prior to its passing.

34. In AIR 1965 S.C 1491, Kapur Chand v. B.S Grewaj, the retrospective character of Section 9(1)(ii) of the Punjab Security of Land Tenures Act which is similar to Section 7(1)(ii) was under examination. That section runs thus:—

“9(1) Notwithstanding anything contained in any other law for the time being in force, no land-owner shall be competent to eject a tenant except when such tenant—

(ii) falls to pay rent regularly without sufficient cause.”

35. In paragraph 6 of the judgment, their Lordships observed thus:—

“Mr. Iyengar argues that Sec. 9(1)(ii) applies prospectively and the conduct of the tenant prior to the enactment of Sec. 14-A cannot be taken into account. In our opinion, the conduct of the tenant prior to the coming into force of the new Section can be taken into account. No doubt a statute must be applied prospectively. But a statute is not applied retrospectively because a part of the requisites for its action is drawn from a moment of time prior to its passing. The clause in question makes a particular conduct the ground for an application for eviction. The necessary condition for the application of Section 9(1)(ii) may commence even before the Act came into force and past conduct, which is as relevant for the clause as conduct after the coming into force of the Act, cannot be overlooked. The Tribunals were, therefore, right in considering conduct of the appellant prior to the coming into force of Section 14-A while determining whether the appellant was irregular in paying the rent.”

36. Mr. Patnaik distinguishes this decision by saying that it decides a case of past-Act default which had commenced in a pre-Act period. The facts of that case do not justify such a view. The observations of their Lordships are in general terms and have got full application to the present case it is incumbent upon the authorities under the Act to take into consideration a default in payment of rent prior to the coming into force of the Act. The third contention fails and is rejected.

37. The last contention on this branch of argument is that opp. party no. 1's default to pay rent was not wilful. The onus is on the tenant to make out a case that the default was not wilful.

38. If the default is committed intentionally, or deliberately, it is a wilful default regardless of the reason why the default was in tended. (See AIR 1953 All 113, para 8).

39. The meaning of the word “wilful” was examined by a Bench of the Court in (1965) 31 Cut LT 331, Jammula Narasimhulu v. Kotini Sitaram. In paragraph 6, the following observations were made;

“The word ‘wilful’ must be given full significance. The meaning of the word as given in the “Oxford Dictionary” is twofold (1) “asserting or disposed to assert one's will against persuasion; instruction or command governed by will without regard to reason; determined to take one's own way; obstinately, self-willed or perverse”, (2) — “done on purpose of wittingly, purposed; deliberate; intentional: not accidental or casual: chiefly, now as always, in a bad sense, of an action either evil in itself or blame-worthy in a particular case; often (with a colour of sense) implying perverse or obstinate”

40. We respectfully endorse the aforesaid view

41. 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 a particular case may be wilful. An illustration would make the point clear. Suppose, a landlord demanded a number of times the rent for the month of January, 1967, on 28-2-67. The tenant refused to pay telling the landlord that he would not pay until a suit for recovery of rent was filed and accordingly did not pay the rent on that day, as has been fixed under Section 7(1)(i) of the Act. In such a case, the non-payment is an instance of wilful default

42. In this case the landlord had to go to Civil Court for recovery of rent a number of times and the amount was being paid only after protracted litigation.

43. The finding of the learned lower appellate court on Section 7(1)(i) proviso runs thus

“Regarding the payment of rent, the reasons for irregular payment has already been discussed above and it is clear that in view of protracted litigation between the parties there has been payments at a long interval through the court and at present the appellant has paid up all the dues for the period ending May, 1963”

44. The “reasons already discussed” to which the learned lower appellate court refers to in the aforesaid finding are in the narration of the facts of the case and not separately given. Those reasons are to the following effect:—

“With this background, there seems to be a bad relationship between both the landlord and tenant on the ground that the landlord wanted more rent and to evict the appellant tenant from the possession of the suit holding. In money Suit No. 664 of 1958 while discussing the arrear rents from 16-12-55 to 15-12-58, which was disputed (deposited?) by the appellant tenant in the court, the learned court dismissed the prayer for the cost of the suit on the ground that even though the appellant was sending rents by money order and also the arrear rent claimed since after he received summons in the suit, the arrear rent of the suit house accrued against the appellant not due to the negligence or default on the part of the appellant, but it was primarily due to the landlord in not accepting the same though tendered. The court therefore, had observed as follows:—

“There is, therefore, good reasons to believe that the plaintiff was not accepting the rent from the defendant with a view to create evidence that the defendant is a regular defaulter so that this may be a good ground for him to evict the defendant. Of course, against this finding, the O.P landlord has gone in appeal and no decision is forthcoming”.

45. It is admitted that the learned lower appellate court committed an error apparent on the face of the record in saying the Money Appeal No. 40 of 1959 against the judgment in Money Suit No. 664 of 1958 was pending. In fact, the lower appellate court delivered his judgment on 15-7-63 and the judgment in Money Appeal No. 40 of 1959 was passed on 12-8-1961 setting aside the observations of the Munsif in M.S No. 664 of 1958. The Additional District Judge in M.A 40/59 recorded a clear finding that the tenant was responsible for the default in payment of rent and accordingly he decreed the costs of the suit throughout against O.P No. 1.

46. Thus the finding of the learned lower appellate court that the tenant was not in default is based on the conclusions of the Munsif in M.S 664 of 1958 which was reversed and not accepted by the Additional Dist. Judge in M.A No. 40 of 1959. The Judgment of the Munsif in M.A 664 of 1958 after it was set aside in appeal was inadmissible in evidence, while the judgment of the Additional Dist. Judge in M.A 40 of 1959 was admissible in evidence. Thus the learned lower appellate court erroneously refused to admit admissible evidence and admitted inadmissible evidence and his finding has been influenced by this error apparent on the face of the record and cannot be sustained. On the principles in AIR 1964 SC 477 as already extracted, the conclusion of the lower appellate court that the tenant was not to blame for the defaults committed must be quashed.

47. The learned lower appellate court should have addressed himself the question whether the tenant was in wilful default. All the relevant facts should have been taken into consideration before rejecting the application for eviction under Section 7(1)(i).

48. It is now necessary to examine the contention of Mr. Patnaik that Section 7(1)(i) is hit by Article 14 of the Constitution. He contends that the Proviso envisages relief to that class of tenants who are not wilful defaulters and have not either paid or tendered the rent due before the filing of the application for eviction, while, if a tenant has in fact paid or tendered the arrears of rent in respect of which default was committed, he is not entitled to the benefit of the proviso even though he is not a wilful defaulter. These two classes of tenants, though similarly circumstanced, are differentially treated, and the differentia between the two classes has no rational relationship to the object sought to be achieved by the proviso. As such. Section 7(1)(i) is hit by Article 14.

49. The contention has no substance and the concept may be clarified with reference to an illustration.

50. A tenant defaulted in payment of rent from July to October, 1965. The landlord filed application for eviction in January, 1966. The case was disposed of on 1st January, 1967. The Controller found that the tenant was not a wilful defaulter. Under the Proviso, he can give the tenant a reasonable time not exceeding 15 days to pay or tender the rent due from him to the landlord upto the date of such payment or tender. In other words, the Controller may give the tenant time till 16th January, 1967 to pay or tender the rent not merely in respect of the arrears from July to October, 1965, but right upto the end of 16-1-67. In the application for eviction, the landlord had no cause of action for arrears from November, 1965 till 16-1-67, but yet the tenant is not entitled to the benefit of the Proviso until he pays or tenders the entire arrears falling due from July, 1965 till the end of 16-1-67. The Proviso is not capable of having any other construction. The application of the Proviso would make no difference to the aforesaid two classes of tenants. The one who has already paid the arrear rent in respect of which default was committed prior to the filing of the application stands in the same position as the one who has not paid the same. According to Section 7(1)(i), the tenant does not fall into arrears in respect of the rent for December 1966 until 31-1-67. To take advantage of the Proviso, however, the tenant is to pay the arrears of rent till the end of 16-1-67 even though that was not in arrear.

51. Section 7(1)(i). Proviso is not hit by. Article 14 and the contention is accordingly rejected.

52. Even if Mr. Patnaik's contention is accepted, it would not hit Section 7(1)(i), but would affect the Proviso itself. The main section is independent of the Proviso and can stand without it. If the Proviso is struck down, the tenant does not get the benefit of extension of time. We have, however, held that Section 7(1)(i), Proviso is constitutional.

53. It would be profitable to sum up our conclusions on this aspect of the question. Those are—

(i) The tenant incurs a liability for eviction if there is default in payment of the rent within the statutory period prescribed.

(ii) The mere passing of a decree in Civil Court does not exitinguish the arrears of rent.

(iii) The Act is not retrospective. The prayer for eviction can, however, be granted by taking into consideration the default coming into existence prior to the passing of the Act.

(iv) If the default is wilful, the Proviso would apply with all its limitations.

(v) Section 7(1)(i), Proviso is constitutional and is not hit by Article 14.

54. The errors of law which the learned lower appellate Court committed were apparent on the face of the record. Those errors are that he did not treat the opposite party No. 1 to be in default, because he had cleared up the arrears of rent prior to the filing of the application for eviction and that he rejected the prayer for eviction without recording a clear-cut finding that the default was not wilful. Even if such a finding can be inferred in the judgment, the conclusion was vitiated inasmuch as it took into consideration inadmissible evidence and rejected admissible evidence, as has been already pointed out.

55. The second attack of Mr. Mohanty on the appellate judgment is that it committed an error of law in not decreeing eviction on the admitted position that damage had been caused to the tenanted house and that its value or utility had been materially impaired.

56. This contention is based on Sec. 7(1)(iii) which runs thus:—

7.(1) A landolrd who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application is satisfied.

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(iii) that the tenant has committed such acts of damage as are likely to impair materially the value or utility of the house;

the controller shall make an order directing the tenant to put the landlord in possession of the house and if the Controller is not satisfied, he shall make an order rejecting the application.

57. The finding of the learned lower appellate court on this question is recorded thus:—

58. As regards the damage to the house, it is clear that the appellant had removed the partition wall where he is holding his shop at present and for this unauthorised alternation, he has already paid necessary cost for the damages as awarded by the court.

59. There is both error of law and fact apparent on the face of the record relating to this finding. The admitted position is that O.P No. 1 removed the wall in between the two bed rooms of the building and converted the rooms into a shop room and opened a shop therein. Again he demolished certain portions of the house and fixed collapsible gates and windows. All these were done without the consent of the landlord. The finding does not clearly state the entire admitted position, though the finding itself recognizes the alteration in the structure of the house to some extent.

60. Mr. Patnaik advances the following contentions against eviction under Section 7(1)(iii).

(i) Section 7(1)(iii) is not retrospective and there can be no eviction for acts of damage committed prior to the coming into force of this Act;

(ii) Though there was alteration in the structure of the house, there had been no alteration likely to impair materially the value or utility of the house. On the contrary, the alteration has immensely increased the value and utility of the house; and

(iii) Even if the alteration is hit by Section 7(1)(iii), no eviction can be ordered as the landlord obtained a decree for compensation for the damage done.

61. All these contentions require careful examination.

62. For reasons already given under Section 7(1)(i), the first contention that a suit for eviction is not maintainable for acts of damage prior to 1-1-1959 is not tenable.

63. Coming to the second contention, observations of their Lordships in Babu Manmohan Das Shah & Others v. Bishun Das, AIR 1967 SC 643 may be seen. There, a similar question was considered under Section 3(1)(c) of the U.P (Temporary) Control of Rent and Eviction Act, 1947. In Paragraph 7, their Lordships observed thus:—

“Without attempting to lay down any general definition as to what material alterations mean, as such a question would depend on the facts and circumstances of each case, the alterations in the present case must mean material alterations as the construction carried out by the respondent had the effect of altering the form and structure of the accommodation. The expression “material alterations” in its ordinary meaning would mean important alterations, such as those which materially or substantially change the front or the structure of the premises. It may be that such alterations in a given case might not cause damage to the premises unreasonable use of the leased premises or constitute a change in the purpose of the lease.”

64. In paragraph 8, their Lordships applied the law to the facts of that particular case and held that lowering the levy of the ground floor by about lift, by excavating the earth therefrom and putting up a new floor, the consequent lowering of the front door and putting up instead a larger door lowering correspondingly the height of the chambutra so as to bring it on the level of the new door-step, the lowering of the base of the staircase entailing the addition of new steps thereto and cutting the plinthband on which the door originally rested so as to bring the entrance to the level of the new floor are clearly structural alterations which are not only material alterations but are such as to give a new face to the form and structure of the premises. The constructions carried out in that case fell within the mischief of Clause (c) and the suit for eviction was decreed.

65. The learned appellate court should have applied the aforesaid principle to the admitted facts of the case and should have determined whether opposite party no. 1 committed acts of damage which materially impaired the value or utility of the house.

66. The third contention is that the landlord obtained a decree for compensation for the aforesaid damages caused to the house and that for the same cause of action the application for eviction is not maintain able.

67. The relevant facts in this regard may be noticed; On 7-11-1952, opposite party no. 1 removed the wall between the two bed rooms, and converted them into a shop room Money Suit No. 96 of 1953 was filed by the landlord for the damage so caused. The suit was decreed with costs and Money Appeal No. 36 of 55 filed by the tenant was dismissed with costs on 17-1-1957.

68. Again on 28-12-1953 opposite party no. 1 demolished a portion of the house, fixed collapsible gates and opened windows. The landlord filed T.S No. 6 of 1954 in the Court of the Munsif, First Court, Cuttack for injunction for restraining further wastage and for damages. On 22-7-1957 the suit was decreed.

69. On the aforesaid facts, it is contended by Mr. Patnaik that as the decree for damages had been granted, on the same cause of action, the landlord cannot ask for eviction it is not clear from the materials on record if the damages decreed in M.S No. 96 of 1953 and T.S No. 6 of 1954 had been paid. If the amount decreed remains unpaid, for reasons already discussed in connection with the arrears of rent, the application for eviction is maintainable.

70. Even assuming that the compensation decreed had already been paid and is no longer outstanding, the question for consideration is whether the cause of action under Section 7(1)(iii) still subsists.

71. On injury being caused to a house, at least two reliefs are available — (i) compensation for the damage caused so as to restore the house to its original condition and (ii) eviction of the tenant. Those reliefs can be had in two different forums. Compensation for damages done to the house can be obtained in civil court. The relief of eviction on the basis of Section 7(1)(iii) can be had only through the House Rent Controller. The landlord therefore, cannot combine both the reliefs either in the plaint for recovery of compensation for damages or in the application before the House Rent Controller. The landlord is not precluded from enforcing his claim for both the reliefs separately. Procurement of one relief in one forum cannot bar the remedy for the other relief.

72. An illustration would make the position clear. Suppose a tenant commits an act of damages likely to impair materially the value or utility of the house within the mischief of Section 7(1)(iii). Without going to civil court for recovery of compensation for damages done, the landlord, in the first instance, files an application for eviction of the tenant under Section 7(1)(iii). After obtaining such eviction, the landlord files a suit for recovery of compensation for the damage done within the period of limitation. The question is whether the suit instituted later than the application for eviction is barred. The unequivocal answer is in the negative. By obtaining the relief of eviction from the House Rent Controller, the landlord gets possession of the house in the damaged condition. His claim for getting compensation to bring back the house to its original conditions cannot be resisted. The same principle applies if the suit for compensation is filed first and the application for eviction is filed later in principle, it makes no difference. Mr. Patnaik's contention that as suit for recovery of compensation for damages had been decreed, the cause of action for recovery of the house by eviction of the tenant no longer subsisted has no force.

73. To sum up, all the contentions urged by Mr. Patnaik that the application for eviction under Section 7(1)(iii) is not maintainable, fail.

74. We would now pass on to the consideration of the ground of eviction under Section 7(2) The learned lower appellate court did not give a clear finding whether the landlord required the house in good faith for the occupation or use of himself and his family members.

75. The finding of the learned lower appellate court in this regard may be extracted:

“As regards the bona fide requirement of the house by the opposite party landlord it is no denying the fact that the O.P along with his brothers are a big family and residing together in their main house and they have let out several houses in their possession to other rent payers. Even though the O.P may lay his claim for the occupation of the present suit holding, still then there appears to be no difficulty in their continuing to occupy their main house where they are staving at present. ‘The suit holding is a road side house and has already been converted as shop house. More so, the present occupant is a refugee carrying on his business since long by making necessary alterations to the house. In my local Inspection I have found that the appellant has also fitted septic latrine and made some improvement in the kitchen side of the holding. It would really be hardship to evict the appellant at present’”.

76. The underlined (here into ‘ ’) expressions are wholly inadmissible in evidence and the learned lower appellate court should not have taken them into consideration as would be presently indicated.

77. The relevant law on the point is in Section 7(2) of the Act which runs thus:

“7(2) 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 or any member of his family or of any person or persons for whose benefit, the house is held by him.”

78. In (1965) 31 CLT 331 a Bench of this Court construed this sub-section and observed thus:—

“The expression “good faith” has been inserted obviously with a view to prevent the landlord from using the machinery of the Act as device for turning out a tenant under the cloak of “requiring it for his own use”, though in reality for letting it out to another person on a more profitable basis. Again the words “requires the house” have been construed ………to mean something more than mere wish and involve the element of need to some extent at least.”

79. The onus of proof in this case is on the landlord. It is for her, to show the circumstances and facts to prove her need or necessity. It has been made clear in that very decision that the need not be an absolute need or requirement that the landlord will not have any accommodation of any description and that he must actually be in the streets, before he can demand his own house for his occupation. The learned lower appellate court ought to have addressed himself to these questions. As he failed to do so, he committed an error of law apparent on the face of the record.

80. Section 7(2) is not at all concerned with the requirement, necessity or hardship of the tenant. The learned lower appellate court committed another error of law apparent on the face of the record in taking into consideration the requirement and hardship of the tenant as appears from the above underlined expressions (here into ‘ ’) and his ultimate conclusion has been vitiated by taking such inadmissible evidence into consideration. His finding in this regard must be quashed.

81. For reasons already indicated, the conclusons of the learned A.D.M that the application for eviction is not maintainable under Section 7(1)(i), 7(1)(iii) and 7(2) of the Act are not sustainable. The Judgment is accordingly quashed and a Writ of Certiorari will issue to that effect.

82. The next question for consideration is whether this Court itself can go into evidence and record its own findings of fact. If the findings were all in favour of the landlord, this Court could have passed final orders of eviction in exercise of its powers under Articles 226 and 227 of the Constitution by indicating the errors of law apparent on the face of the record was done in Waryam Singh v. Amarnath, AIR 1954 SC 215. We, however, notice that the learned lower appellate court's findings were all vitiated by errors of law apparent on the face of the record and also by ignoring admissible evidence and taking into consideration inadmissible evidence. We would prefer to follow, in this case, the observation in Prem Sagar v. Standard Vacuum Oil Co., AIR 1965 SC 111. In paragraph 22, their Lordships observed thus:

“Incidentally, we ought to point out that even if the Division Bench was right in holding that the impugned order should be corrected by the issue of a writ of certiorari, it would have been better if it had not made its own findings on the evidence and passed its own order in that behalf. In writ proceedings if an error of law apparent on the face of the record is disclosed and a writ is issued, the usual course to adopt is to correct the error and send the case back to the special Tribunal for its decision in accordance with law. It would, we think, be inappropriate for the High Court exercising its writ jurisdiction to consider the evidence for itself and reach its own conclusions in a matters which have been left by the legislature to the decisions of specially constituted Tribunals.”

83. We would accordingly remand the case to the lower appellate court for disposal in accordance with law after taking into consideration the relevant and admissible evidence on record.

84. To avoid further confusion and delay, the lower appellate court is to record its findings on the following points:—

1.(a) Has the tenant paid or tendered rent due from him within the statutory period prescribed in Section 7(1)(i) of the Act?

(b) Was the tenant's default to pay or tender rent wilful? If not, is the tenant entitled to the benefit of the Proviso?

2. Has the tenant committed any act of damage to the house as are likely to impair materially the value or utility thereof as required under Section 7(1)(iii) of the Act?

3. Does the landlord require the house in good faith for the occupation or use of himself or any members of his family?

85. The application for eviction before the House Rent Controller was filed on 31-1-1959. Almost nine years have elapsed. This case is a sad commentary on the disposal of the cases under the House Rent Control Act and should attract the notice of the Government to vest powers in the Civil Court to try cases under this Act providing for regular first and second appeals.

86. A writ of certiorari is hereby issued quashing the order of the learned Additional District Magistrate (Executive). The lower appellate court is directed to dispose of this case within two months from the date of the receipt of this record with intimation to this Court, after giving full opportunity to the parties to advance only their arguments on the materials on record. No further evidence is permissible on any of the points.

87. In the result, the order of the learned Lower Appellate Court is set aside and the writ application is allowed with costs Hearing fees of Rs. 200.

88. S.K Ray, J.:— I agree.

KSB

89. Case remanded.