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High Court Of Orissa
G. B. PATTANAIK, LINGARAJA RATH
K.P.RAO - Appellant
Versus
T.LAKSHMANAMURTY - Respondent
ORIGINAL JURDN. 561 Of 1983
Decided On : 09/01/1987
HOUSE RENT CONTROL - Restoration of case - Powers of House Rent Controller - Applicability of Civil Procedure Code - O. 9, R. 13, C. P. C. - Whether applicable to proceedings before House Rent Controller - Whether House Rent Controller has inherent power to restore a case.
Fact of the Case:
The petitioner, a tenant, was evicted from the house in execution of an ex parte order of eviction. However, he forcibly occupied the house thereafter. The landlord filed a house rent control case seeking eviction of the petitioner on the ground of wilful default of the petitioner in payment of the rent and denying the landlord's title and also on the ground of bona fide requirement. The House Rent Controller found in fact that the petitioner was a wilful defaulter and had denied the title of the landlord, but however rejected the petition finding that the landlord had obtained an ex parte order of eviction of the petitioner which he had put into execution and had taken delivery of possession of the house, but the petitioner had thereafter forcibly occupied the house as a trespasser and hence no relationship of landlord and tenant subsisted between the parties so as to maintain the petition under the Orissa House Rent Control Act. Both the petitioner and the landlord preferred appeals before the Chief Judicial Magistrate, Ganjam, Berhampur, who reversed the decision of the House Rent Controller and directed eviction of the petitioner and also fixed the fair rent of the house at Rs. 200/- per month.
Finding of the Court:
The court held that the House Rent Controller has the power to restore a case under O. 9, R. 13, C. P. C. by setting aside the ex parte order. The court also held that the provisions of O. 9, C. P. C. are applicable to proceedings before the House Rent Controller as principles of natural justice and that such provisions apply unless any provision in the Act is inconsistent with the provision of the Civil P. C. making the applicability of the latter unworkable.
Issues: 1. Whether a person who was a tenant but was evicted from the house in execution of an ex parte order of eviction, but occupied the house thereafter forcibly could still be called a tenant in the house rent control proceeding restored after setting aside of the ex parte order? 2. Whether the House Rent Controller functioning under the Orissa House Rent Control Act, 1967 has the authority to set aside an ex parte order of eviction and restore the house rent control case for fresh hearing.
Ratio Decidendi: 1. The court held that the petitioner, who was evicted from the house in execution of an ex parte order of eviction, but occupied the house thereafter forcibly, could still be called a tenant in the house rent control proceeding restored after setting aside of the ex parte order. The court reasoned that the eviction order in pursuance of which the petitioner was evicted had no independent existence than the house rent control case. When the order of eviction was itself set aside, any action taken in pursuance of such order of eviction would, in the eye of law, be non est and hence the eviction effected in execution of the order would no longer be deemed to have been carried out in view of the fact that the very order stood withdrawn and there was nothing left, by the fiction of law, which could have been put into execution. Consequently, it would follow that an eviction, in the eye of law, had never been carried out. 2. The court held that the House Rent Controller functioning under the Orissa House Rent Control Act, 1967 has the authority to set aside an ex parte order of eviction and restore the house rent control case for fresh hearing. The court reasoned that the provisions of O. 9, C. P. C. are applicable to proceedings before the House Rent Controller as principles of natural justice and that such provisions apply unless any provision in the Act is inconsistent with the provision of the Civil P. C. making the applicability of the latter unworkable.
Final Decision: Both the writ petitions were dismissed with costs.
L. RATH, J.
( 1 ) THESE two writ applications arise out of the same appellate judgement in a House Rent Control case disposing of two House Rent Control Appeals respectively preferred by the landlord and the tenant as against an order of the House Rent Controller dismissing the landlord's application for eviction even though recording adverse findings against the tenant as being a wilful defaulter and having negatived the title of the landlord. Two writ petitions have been filed against the same order since originally there were two appeals before the appellate authority and both are being disposed of by this common judgement.
( 2 ) TWO questions have been urged by Mr. Panigrahi, learned counsel appearing for the petitioner-tenant to press for reversal of the appellate judgement. The first is whether a person who was a tenant but was evicted from the house in execution of an ex parte order of eviction, but occupied the house thereafter forcibly could still be called a tenant in the house rent control proceeding restored after setting aside of the ex parte order; and second, whether the House Rent Controller functioning under the Orissa House Rent Control Act, 1967 has the authority to set aside an ex parte order of eviction and restore the house rent control case for fresh hearing.
( 3 ) THE facts, shorn of details, are that the opposite party No. 1 filed the house rent control case seeking eviction of the petitioner on the ground of wilful default of the petitioner in payment of the rent and denying the landlord's title and also on the ground of bona fide requirement. Besides, he also filed a petition for fixation of fair rent. The learned House Rent Controller found in fact that the petitioner was a wilful defaulter and had denied the title of the landlord, but however rejected the petition finding that opposite party No. 1 had obtained an ex parte order of eviction of the petitioner which he had put into execution and had taken delivery of possession of the house, but the petitioner had thereafter forcibly occupied the house as a trespasser and hence no relationship of landlord and tenant subsisted between the parties so as to maintain the petition under the Orissa House Rent Control Act. Both the petitioner and opposite party No. 1 preferred appeals before the Chief Judicial Magistrate, Ganjam, Berhampur, who reversed the decision of the House Rent Controller and directed eviction of the petitioner and also fixed the fair rent of the house at Rs. 200/- per month.
( 4 ) SO far as the first submission is concerned, it has no force since the petitioner came himself with a petition before the House Rent Controller for setting aside the ex parte order and after restoration contested the proceeding and thus accepted the fact that the proceeding against him could continue to determine the issue raised in the house rent control proceeding not only relating to the fact of wilful default and bona fide requirement, but also the question whether there was any relationship of landlord and tenant, on his plea of continuing in possession of the premises on account of a prior agreement with the original landlord to whom he also paid some advances. The eviction order in pursuance of which the petitioner was evicted had no independent existence than the house rent control case. When the order of eviction was itself set aside, any action taken in pursuance of such order of eviction would, in the eye of law, be non est and hence the eviction effected in execution of the order would no longer be deemed to have been carried out in view of the fact that the very order stood withdrawn and there was nothing left, by the fiction of law, which could have been put into execution. Consequently, it would follow that an eviction, in the eye of law, had never been carried out. The question of re-occupation by the petitioner forcibly also would not arise and he would continue to fill the same character in respect of the premises which he was originall
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