SARAT CHANDRA TRIPATHY Vs. HIRANBALA DEBI

JUDGEMENT

(1.) THE Appellant is the landlord and the Respondent the tenant under him in respect of a house located in the town of Cuttack.

(2.) HOUSE Rent Control Case No. 8 of 1965 was filed by the Appellant before the House Rent Controller of Cuttack for eviction as provided under Section 7 of the Orissa House Rent Control Act, 1958 and the said case was allowed ex parte on 27 -7 -1965 and an order for eviction was made. Under Section 13 of the Orissa House Rent Control Act (hereinafter referred to as the Act) an execution case was filed in the Court of the First Munsif, Cuttack being Execution Case No. 159 of 1965. On 19 -9 -1965, possession was delivered to the Appellant in the said execution case.

(3.) MR . M.N. Das contended before us that the view of the learned Appellate Judge that the House Rent Controller or the Appellate Authority has jurisdiction to vacate the ex parte order of eviction and restore the House Rent Control case for II fresh disposal was wrong. According to him the Respondent having not gone in appeal against the ex parte order it was not open to the learned Additional District Magistrate to vacate the ex parte order. The only matter which came before the learned Additional District Magistrate was as to whether the refusal of adjournment on 5 -3 -1966 by the learned Controller was justified. The other appeal questioned the propriety of the order of the learned Controller in vacating the ex parte order. If the Appellate Authority found that the refusal of adjournment on 5.3.1966 was improper, the subsequent order of the Controller dated 9.3.1966 recalling the earlier order of eviction could not be justified. The order of the Appellate Authority is indeed not very clear. But the learned District Judge has interpreted it to mean that the main case was restored to the file of the Controller for disposal afresh. The view taken by the learned District Judge seems to be justified. He has clearly indicated that "the notices were not property served as it appears from the endorsements on them". These notices must only be with reference to the allegation of the Respondent that he had not been properly served in the case. Non -service of notice with reference to the Respondent was not the case before the appellate Authority. In view of the statement in the appellate order of the learned Additional District Magistrate we are of the view that the learned District Judge was right in holding that the effect of the order of the Appellate Authority was to restore the main case for eviction to the me of the Controller for a fresh disposal in accordance with law Since in Appeal No. 6 of 1966 the Appellant was questioning the propriety of the order of the House Rent Controller in the matter of recalling the ex parte order, it was open to the learned Additional District Magistrate in appeal to bold that the order of the Controller was right and both the parties should be given an opportunity of being heard again before the final order in the case was made.