SARAT KU. SHARADA Vs. CHIEF JUDICIAL MAGISTRATE

JUDGEMENT

(1.) HAS the appellant got vested right to insist the appellate authority before when appeal under Section 13 of the Orissa House Rent Control Act, 1967 is pending to accede his prayer for examination of a witness on his behalf ? This is the short question that arises for consideration in this application made under Article 226 and 227 of the Constitution of India filed by the tenant challenging the order of eviction of the House Rent Controller at Annexure-4 confirmed in appeal by the appellate order at Annexure P-7.

(2.) FACTS : Opposite parties 3 to 5 filed H.R.C. Case No. 12 of 1987 before the House Rent Controller (opp. party No. 2) under Section 7(4) of the Orissa House Rent Control Act, 1967 (hereinafter referred to as 'the Act') against the petitioner. Their case is that they are the joint owners of municipal holding Nos. 294 and 295 of Dalaipare. Sansarak, Ward No. 12 in Sambalpur town. A shop room situated on the ground floor of municipal holding No. 294 (14' x 14') was let out to the petitioner whose monthly rent was Rs. 220/-. Narayan Pandey, father of opp. parties 4 and 5 while working as Inspector of Commercial Taxes died on 5.5.1984. After his death, opposite party No. 4 was appointed in the Government service under the rehabilitation assistance scheme. Opposite party No. 5 is unemployed who wants to engage himself in the business for which the shop room in question is very much required. He accordingly issued notice to the petitioner on 13.3.1987 by giving three months' time to vacate the house and hand over possession of the same. But, as there was no response from the petitioner, the case was filed for the petitioner's eviction on the ground that the shop room in question is bona fide required to start business. The petitioner resisted the case on the grounds that opp. parties 3 to 5 are not absolute owners of the house and the case was not maintainable as some other co-sharers were not impleaded. The petitioner also challenged that there were many other tenants in the same holding and opposite party No. 5 is not an unemployed inasmuch as he is doing farming in village Kenghatee and has been raising double crops on his lands. The petitioner further pleaded that the case was filed with an ulterior motive to get higher rent of Rs. 400/- per month and salami of Rupees 25,000/- for the house. In course of that, on behalf of opp. parties 3 to 5, opposite party No. 4 was examined as P.W.1. On the basis of the evidence adduced in the case, the House Rent Controller (opp. party No. 2) held, inter alia, that the shop room in question is required bona fide for opp. party No. 5 to run a business and the allegation that the case was filed with a view to get salami of Rs. 25,000/- and higher rent of Rs. 400/- per month had not been substantiated by the petitioner. On the basis of the aforesaid findings, the House Rent Controller (opp. party No. 2) by judgment dated 4.12.1993 Annexure-4 directed eviction of the petitioner from the shop room in question. The petitioner aggrieved by the aforesaid judgment filed H.R.C. Appeal No. 1 of 1994 before the Chief Judicial Magistrate, Sambalpur (opp. party No. 1). On 18.4.1995, the petitioner filed an application at Annexure 5 praying the appellate authority to summon one Salegram Panda to examine as a witness. The Chief Judicial Magistrate, Sambalpur by order dated 14.2.1997 at Annexure-6 rejected the said application holding that the petitioner took several adjournments before the House Rent Controller but did not produce him for examination and the House Rent Controller allowed only the petitioner to be examined as a witness and the said order has become final as it was not challenged and in the circumstances, the prayer to summon Salegram Panda to be examined as a witness at the appellate Court cannot be entertained. The Chief Judicial Magistrate accordingly posted the case to 26.2.97 for hearing. Thereafter, he after hearing, passed judgment dated 20.3.1997 at Annexure-7 dismissing the appeal. The petitioner, as already noted, assails the validity of the judgment of the House Rent Controller at Annexure-4, order dated 14.2.1997 at Annexure-6 and the judgment dated 20.3.1997 at Annexure-7 passed by the appellate authority.

(3.) BEFORE going to consider the rival contentions of the counsel for the parties, it is necessary to note certain orders passed by the House Rent Controller which would throw light on the points at issue. On 29.9.1992, a petition along with process fee was filed on behalf of the petitioner to issue summons to his witness Salegram Panda. The House Rent Controller allowed the petition and fixed the case to 6.11.1992 for hearing. The summons, however, could not be served on the witness as he was found absent from the village and it came back after "affixture service". On 6.11.1992, the House Rent Controller adjourned the case to 4.12.1992 and to 7.1.1993. In the meanwhile i.e. on 4.1.1993, process fee and requisites for issue of summons to the witness through the Court were filed on behalf of the petitioner. On 7.1.1993 the House Rent Controller directed issue of summons to the witness fixing 8.2.1993 for his appearance. On 8.2.1993, it was found that the summons issued to the witness came back without being served as the witness was found absent. On the prayer made on behalf of the petitioner, the case was adjourned to 5.3.1993 on which day the case was further adjourned to 20.4.1993 for hearing. On 14.4.1993, a petition was filed on behalf of the petitioner along with process fee and requisites for issue of summons to the witness through Court. Order was passed on that day to put up the said petition on the date fixed. Accordingly, on the date fixed (20.4.1993) when the case was put up, the House Rent Controller allowed the petition and directed issue of summons to the witness fixing 12.5.1993. On 12.5.1993, the House Rent Controller found that the "service return" had not come back and on the prayer of the petitioner, the case was adjourned to 11.6.1993. On that day also, the "service return" had not come and the matter was adjourned to 14.7.1993. On that day (14.7.1993), order was passed directing issue of notice to the witness and the case was adjourned to 20.8.1993 for hearing. On 20.8.1993, a petition was filed by the petitioner for adjournment. The House Rent Controller rejected the petition and directed the case to be put up on 23.8.1993 for argument. On 21.8.1993, the petitioner filed an advance petition stating, inter alia, that he summoned Salegram Panda as a witness through Court but the summons could not be served on him as he was out of station and on 20.8.1993, the petitioner himself was temporarily absent at the time when the case was called on account of which he could not examine himself first. The petitioner accordingly prayed for permission to be examined himself as a witness and the presence of his witness (Salegram Panda) be procured by coercive measures. The House Rent Controller directed the said petition to be put up on the date fixed with objection. On 23.8.1993, objection was filed on behalf of the opposite parties 3 to 5 to the advance petition dated 21.8.1993. The House Rent Controller directed the advance petition to be put up on 24.8.1993. On 24.8.1993, the House Rent Controller passed order allowing the petition subject to payment of cost of Rs. 200/- to be paid to the opp. parties 3 to 5 and permitted the petitioner to be examined only after payment of cost. The matter was adjourned to 4.9.1993. On the date fixed, the matter could not be taken up because the Presiding Officer was busy in another case. The case record was transferred to another Presiding Officer for disposal on 2.11.1993. On that day (3.11.1993), the transferee Presiding Officer adjourned the case as 11.11.1993 for hearing. On 10.11.1993, the petitioner filed a petition praying to issue summons to the witness Salegram Panda by hand (the hand summons is one record). The House Rent Controller rejected the petition stating that as per the previous order dated 24.8.1993, the petitioner alone was permitted to be examined subject to payment of cost of Rs. 200/- but no cost had yet been paid. On 11.11.1993, the petitioner was examined himself as O.P.W. 1. He was cross-examined and was discharged. The House Rent Controller closed the evidence and adjourned the case to 17.11.1993 for argument. The matter was, however, heard on 24.11.1993 and the judgment was delivered on 4.12.1993 vide Annexure-4. From the aforesaid orders passed by the House Rent Controller it would appear that the petitioner's prayer to summon Salegram Panda as a witness was allowed at one stage but the summons could not be served on him for which order was passed on 14.7.1993 to issue fresh notice to the witness. Fresh summons was issued but it could not be served on him due to his absence. The petitioner was even prepared to serve the summons on Salegram Panda by hand but the prayer was not allowed because of the order dated 24.8.1993 by which the petitioner alone was permitted to be examined in the case. Point No. (i) In order to appreciate this point, it would be profitable to refer to the relevant provisions of the Act and the Rules made thereunder. Section 13 of the Act deals with the appeal provision. Sub-section (1) thereof provides that if a person is aggrieved by the order of the Controller he may prefer an appeal to the Chief Judicial Magistrate or any other officer specially appointed for the purpose. Sub-section (2) thereof which is relevant for our purpose is extracted hereunder :