9911796707
TMI Blog1987 (9) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... late authority and both are being disposed of by this common judgment. 2. Two questions have been urged by Mr. Panigrahi, learned counsel appearing for the petitioner-tenant to press for reversal of the appellate judgment. The first is whether a person who was a tenant but was evicted from the house in execution of an ex parte order of evictioa but occupied the house thereafter forcibly could still be called a tenant in the house rent control proceeding restored after setting aside of the ex parte order; and second, whether the House Rent Controller functioning under the Orissa House Rent Control Act, 1967 has the authority to set aside an ex parte order of eviction and restore the house rent controlcase for fresh hearing. 3. The fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d continue to determine the issue raised in the house rent control proceeding not only relating to the fact of wilful default and bona fide requirement, but also the question whether there was any relationship of landlord and tenant, on his plea of continuing in possession of the premises on account of a prior agreement with the original landlord to whom he also paid some advances. The eviction order in pursuance of which the petitioner was evicted had no independent existence than the house rent control case. When the order of eviction was itself set aside, any action taken in pursuance of such order of eviction would, in the eye of law, be non est and hence the eviction effected in execution of the order would no longer be deemed to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order was obtained by the petitioner himself. It is urged that the petitioner's action would not debar him from raising the question since it is one relating to jurisdiction of the Controller. It is submitted that the restoration of the house rent control case being without jurisdiction, the execution of the order of eviction against the petitioner would no longer be deemed to have been not effective and hence the petitioner's possession of the premises would be that of a trespasser, not amenable to the jurisdiction of the House Rent Controller. 6. The submission requires careful consideration on the question of powers of the House Rent Controller for setting aside an ex parte order or even to restore an application dismissed fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g before him. In the case, the earlier single Judge decision reported in (1952) 18 Cut LT 279 : (AIR 1953 Orissa 254) (supra) was approved holding that the proceeding before the House Rent Controller is undoubtedly a civil proceeding and that the provisions of the Code of Civil Procedure apply to the proceedings under the House Rent Control Act as rules of natural justice unless there is any particular indication in the statute or the rules made thereunder for its non-application, or by implication it can be held that an alternate procedure is indicated. It was observed that once the provisions of Order 9, Rule 13, C.P.C. are held to be applicable, the subsequent direction for restoration of the case for fresh disposal cannot be questioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as laid down in (1975) 41 Cut LT 721 (supra) was reaffirmed and applying the same it was held that Order 8, Rule 5, C.P.C. can be applied in construing a written statement filed in a house rent control proceeding since there is nothing in the Act or the Rules which runs counter to the provision of Order 8, Rule 5, C.P.C. In a recent decision of this Court, (1985) 1 Orissa LR 215 (Smt. Debmoni @ Devmani Atha v. Smt. Sarala Ben Mulji Bhinda), S. C. Mohapatra, J. on a re'sume' of the earlier decisions, has also come to the conclusion that the House Rent Controller has jurisdiction to restore a case under Order 9, Rule 13. C.P.C. by setting aside the ex parte order. 8. In another decision, (1973) 1 Cut WR 618 : (1974 Lab 1C 836) (Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natural justice and that such provisions apply unless any provision in the Act is inconsistent with the provision of the Civil P. C. making the applicability of the latter unworkable and that the power of restoration can also be exercised in respect of appeals under the Act as an inherent power under Section 151, C.P.C. even though there is no scope for dismissal of appeal for default at all. It is however doubtful whether the House Rent Controller being a tribunal would be possessed of any inherent power, in view of the decision of this Court in ILR (1971) Cut 1325 : (1972 Tax LR 1735) (State of Orissa v. Member, Sales Tax Tribunal), Chief Justice G. K. Misra, who incidentally also delivered the decision in (1975) 41 Cut LT 721 (supra), on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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