SAGARMAL PANCH Vs. CHIEF JUDICIAL MAGISTRATE PURI

JUDGEMENT

(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.