KISHANLAL KAPOOR Vs. BABAJI CHARAN BEHERA

JUDGEMENT

(1.) Petitioner was a monthly tenant in respect of holding No. 331 in Ward No. 22 within Cuttack Municipality since 1976. Opp. Party No. 1 filed an application for eviction of the petitioner under Section 7 of the Orissa House Rent Control Act on the ground of bona fide requirement and wilful default. The House Rent Controller passed an order of eviction ex pane on 13 -12 -1978. The petitioner had no knowledge of the said House Rent Control proceedings and could know about the same only when the landlord opp. party No. 1 levied execution in the Court of the Munsif, First Court, Cuttack, and 'the clerk -in -charge of the petitioner's case could know of the same. The petitioner avers that after inspection of records on 1 -11 -1983 in the execution case, the petitioner came to know of the ex parte order passed by the House Rent Controller and he filed an application before the Controller under Order 9, Rule 13, CPC alleging that there has been suppression of summons in the house rent control proceedings and further alleging that the delay in approaching the Controller under Order 9, Rule 13 was on account of illness. Simultaneously in the execution case which was registered as Execution Case No. 62 of 1933, the petitioner filed an objection under Section 47, CPC challenging the executability of the order on the ground of fraudulent suppression of summons. This objection filed under Section 47 was registered as Misc. Case No. 214 of 1983 and the same having been dismissed by order dated 10 -1 -1984 the petitioner has assailed the same in Civil Revision which has been registered as G.R. No. 163 of 1984 and will be disposed of today. The application filed by the petitioner under Order 9, Rule 13, CPC which was registered as Misc. Case No. 25 of 1983 was heard by the Controller and the Controller by order dated 16 -1 -1985 rejected the said application, on a finding that the application was barred by limitation. On the merits of the petitioner's allegation with regard to non -service of summons, the Controller, however, recorded a finding that the notice in the HRC Case or even notice in the execution case under Order 21, Rule 22, GPC had not been served on the petitioner. This order of the Controller rejecting the petitioner's application under Order 9, Rule 13 was assailed in appeal in HRC Appeal No. 10 of 1985. The appellate authority confirmed the finding of the Controller with regard to non -service of notice on the petitioner both in the HRC case as well as in the execution case and yet dismissed the appeal on 11 -7 -1986 on the ground that the petitioner had the knowledge about the execution case and, therefore, the application under Order 9, Rule 13, CPC was filed beyond time. The petitioner thereafter has approached this Court in this writ application.

(2.) MR . Mukherjee appearing for the petitioner raises the following contentions in assailing the orders of the lower forums: (i) Since both the Controller as well as the appellate authority had recorded a finding that there was no service of notice on the petitioner in the house rent control proceeding as well as in the execution case, the order of the House Rent Controller evicting the petitioner is null and void and, therefore, the Controller as well as the appellate authority committed error in not restoring the said house rent control proceeding by recalling an invalid order of eviction ; (ii) An order of eviction becomes appealable under Section 13 only when the same is communicated to the tenant. The order not having been communicated as yet, right of appeal of the petitioner still subsists, and, therefore the Controller as well as the appellate authority failed to exercise their jurisdiction vested in law in not restoring the house rent control proceeding by recalling the ex pane order of eviction ; (iii) The observation of the Controller to the effect that the petitioner in his evidence has admitted that he was aware of the execution case in September 1983, constitutes an error of record and, therefore, the ultimate conclusion is vitiated. The learned counsel appearing for opp. parties 1 and 2, on the other hand, contends that the records of the proceedings having indicated about service of summons on the petitioner a presumption as to the correctness of the same attached under Section 114 of the Evidence Act, and therefore the Controller and the appellate authority committed an error in recording a finding that there had been no service of notice on the petitioner in the house rent control proceeding. He further urges that the petitioner, a tenant not having paid arrears of rent is not entitled to invoke the extraordinary equitable jurisdiction under Article 226 of the Constitution.

(3.) WE also find sufficient force in the submission of Mr. Mukherjee that under the provisions of the House Rent Control Act, an appeal lies against the order of eviction on being communicated within thirty days from the date of the communication. Since admittedly the order of eviction has not been communicated as yet, the petitioner still has the right of appeal. Taking this factor into consideration, the forums below should have set aside the ex parte order of eviction and should have restored the house rent control proceeding. They not having done so have failed to exercise their jurisdiction vested in law.