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High Court Of Orissa
H. L. AGRAWAL, G. B. PATTANAIK, LINGARAJA RATH
SAGARMAL PANCH - Appellant
Versus
CHIEF JUDICIAL MAGISTRATE, PURI - Respondent
ORIGINAL JURDN. CASE 840 Of 1981
Decided On : 02/02/1989
HOUSE RENT CONTROL ACT - APPEAL - MAINTAINABILITY - ORDER UNDER O. 9, R. 13, C. P. C. - SCOPE OF ENQUIRY - REMAND - SUMMARY PROCEDURE - O. 37, C. P. C. - APPLICABILITY - ORISSA HOUSE RENT CONTROL ACT, 1967 (14 OF 1967), SS. 12, 13, 21 - O. 9, R. 13, O. 37, R. 4, C. P. C. - ORISSA HOUSE RENT CONTROL RULES, 1968, R. 13.
Fact of the Case:
Tenant filed an application under O. 9, R. 13, C. P. C. before the House Rent Controller, which was rejected. Tenant appealed to the appellate authority, who allowed the appeal and set aside the ex parte order of eviction. Landlord challenged the appellate order, contending that the appellate authority had no jurisdiction to entertain the appeal, that the decree had been executed and satisfied during the pendency of the appeal, that the order amounted to an order of remand which was without jurisdiction, and that the proceeding being summary in nature, the only remedy available to the tenant was to make an application under O. 37, R. 4, C. P. C.
Finding of the Court:
1. The appeal filed by the tenant against the order rejecting his application under O. 9, R. 13, C. P. C. was maintainable under S. 13 of the Act itself, as the order seriously prejudiced and affected the tenant's right. 2. The appellate authority did not become functus officio on account of the discharge and satisfaction of the decree under appeal, and the benefits flowing from the appellate order could be given to the appellant by applying the principles of restitution enshrined in S. 144, C. P. C. 3. The order of the appellate authority did not amount to an order of remand, as it was only a direction to the parties to adduce evidence before the Controller in the inquiry in accordance with S. 13 (2) of the Act. 4. The proceeding being summary in nature, it was not governed by the procedure of O. 37, C. P. C., which was confined only to suits of negotiable instruments and to superior courts.
Issues: 1. Whether an appeal lay against an order passed under O. 9, R. 13, C. P. C., in a proceeding under the Orissa House Rent Control Act, 1967. 2. Whether the appellate authority became functus officio on account of the discharge and satisfaction of the decree under appeal. 3. Whether the order of the appellate authority amounted to an order of remand. 4. Whether the proceeding being summary in nature, it should be governed by the procedure of O. 37, C. P. C.
Ratio Decidendi: 1. The right of appeal conferred under S. 13 of the Act is wide enough in its application and does not contain any restriction with respect to the nature of orders which alone would be appealable. Restricting its ambit with reference to R. 13 of the Orissa House Rent Control Rules, 1968, which has an entirely different dimension and purport, would be improper. 2. All decrees and orders passed by a court, which may although be subject to appeal, become executable, and the appellate authority is not bound to grant stay of execution in all cases. The appellate court does not become functus officio on account of the discharge and satisfaction of the decree under appeal, and the benefits, if any, which can flow to the appellant from the appellate order must be given to him by applying the principles of restitution enshrined in S. 144, C. P. C. 3. The scope of an appeal against an order under O. 9, R. 13 is only to find out whether the decree should be set aside or not. It should be in the fitness of things that the main case be decided by the Controller. The main case being not in appeal before the Controller, the scope of enquiry contemplated by the appellate authority cannot be a forum for deciding the eviction applications on merit at all. An order remitting back the case to the Controller for fresh hearing would not amount to an order of remand as such as he is not asking to redecide the O. 9, R. 13 matter. 4. The proceeding being summary in nature does not mean that it should be governed by the procedure of O. 37, C. P. C., which is confined only to suits of negotiable instruments and to superior courts.
Final Decision: The writ application challenging the appellate order was dismissed.
AGARWAL, CJ.
( 1 ) THIS writ application, arising out of an order passed by the Chief Judicial Magistrate, Puri, acting as the appellate authority under the Orissa House Rent Control Act, 1967 (for short 'the Act'), by which he has allowed the appeal of the tenant against the order of rejection of his application for setting aside an ex parte order of eviction passed by the House Rent Controller, raises a question of construction of S. 13 of the Act, namely, as to whether the appellate authority was competent in law to entertain the appeal.
( 2 ) EARLIER, when this writ application was listed before a Division Bench of this Court, it referred the matter to a larger Bench to resolve some conflict between the observations made in different decisions of this Court, particularly in the case of Maganlal Sharma v. Smt. Maya Dutta, ILR (1979) 2 Cuttack 455 and Arun Sunder Das v. B. Subash Subudhi Rao, (1988) 65 Cut LT 169 Kandula Prabhakar Rao v. Tumulu Lakshmanamurty, (1987) 64 Cut LT 713.
( 3 ) THE facts may be briefly noticed : an application under S. 7 (2) (iv) of the Act was filed by the petitioner before the House Rent Controller, Puri, against O. P. No. 3 for his eviction from the suit premises in the year 1978. In that proceeding, the tenant O. P. No. 3 was set ex parte and ultimately an ex parte order for his eviction was passed on 1-7-1978 vide Annexure-1. The claim of the petitioner is that in pursuance of the aforesaid order, delivery of possession was obtained from the executing court on the failure of the tenant to get any order of stay. In the meantime, on 24-10-1978, the tenant had filed an application under O. 9, R. 13, C. P. C. before the Controller for setting aside the ex parte order of eviction, which was registered as a miscellaneous case. The Controller, by his order dated 9-9-1980 (Annexure-3) rejected the said application mainly on the ground that the tenant's application for stay of delivery of possession having been rejected, the decree stood satisfied and, therefore, the application for setting aside the same could not be maintained. He came to the above conclusion on referring to a decision of the Calcutta High Court in Keshab Chandra Datta v. Ballygunge Estate Pvt. Ltd. , AIR 1972 Cal 221. Against the aforesaid order of the Controller, the tenant carried an appeal to the appellate authority (O. P. No. 1 ), who, by the impugned order (Annexure-1), allowed the appeal and set aside the ex parte order of eviction. The petitioner has further alleged that the tenant, after the delivery of possession was effected, trespassed into the premises and in order to get back possession, he filed a title suit as well as a criminal case. The tenant was found guilty under S. 448, I. P. C. by the trial court and sentenced to pay fine which was maintained up to this Court.
( 4 ) BEFORE the appellate authority, the only point that appears to have been argued on behalf of the petitioner was that the appellate authority had the jurisdiction to make further inquiry as he might think fit and decide the appeal, but had no power to remand the case to the Controller, and inasmuch as allowing the appeal would virtually amount to an order of remand for a fresh decision of the case, he had no jurisdiction to entertain the appeal. Reliance was placed on a decision of this court in Smt. Nirmala Ben Patel v. Indersingh Bagi, (1977) 44 Cut LT 72 for the above submission. This plea was repelled by the appellate authority and he, on appreciation of the materials on the record, came to the conclusion that there was sufficient reason for the absence of the tenant inasmuch as the notice of the proceeding was not properly served upon him. This order has been assailed by the landlord in this Court on the following grounds : - (1) An order passed on an application under O. 9, R. 13, C. P. C. being not an order 'communicable' to the parties, no appeal lay. (2) In view of the fact that the ex parte decree had been fully executed and satisfied d
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