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Nimai Charan Kamila Vs. Sham Mohan Nandi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 94 of 1950
Judge
Reported inAIR1953Ori254; 18(1952)CLT279
ActsConstitution of India - Article 227; Orissa House Rent Control Act, 1947 - Sections 1; Code of Civil Procedure (CPC) , 1908 - Order 9
AppellantNimai Charan Kamila
RespondentSham Mohan Nandi
Appellant AdvocateD. Mohanty, Adv.
Respondent AdvocateB.C. Dasgupta, Adv.
DispositionPetition dismissed
Cases ReferredManik Lal Behari v. Parakh Kothi Ltd.
Excerpt:
.....of india v smt gita banik, 1996 (2) glt 246, are not good law]. - i am therefore satisfied that this court has got jurisdiction to revise the order of the district magistrate......landlord filed a petition on 28/10/49 praying for restoring his original application. the house rent controller did not fake up this petition for revival, but granted an exemption under section 5, as prayed for by the landlord) ignoring the order of dismissal passed on 22/10/49. the petitioner, who is the tenant, filed an appeal before the district magistrate against this order of the house rent controller, in h. r. c. appeal no. 188 of 1949. that appeal was disposed of by the district magistrate by his order dated 8/12/49 whereby he set aside the order of the house rent controller granting exemption under section 5. the district magistrate, however, remanded the case for a re-hearing of the revival application and disposal according to law.when the case went back to the house rent.....
Judgment:
ORDER

Panigrahi, J.

1. This is a petition under Article 227, Constitution Act, praying for revising an order of the District Magistrate, Cuttack, in a case under the Orissa House Rent Control Act. The facts are that the application of the landlord for exemption under Section 5 of the Act was dismissed for default of appearance on 22-10-49. The landlord filed a petition on 28/10/49 praying for restoring his original application. The House Rent Controller did not fake up this petition for revival, but granted an exemption under Section 5, as prayed for by the landlord) ignoring the order of dismissal passed on 22/10/49. The petitioner, who is the tenant, filed an appeal before the District Magistrate against this order of the House Rent Controller, in H. R. C. Appeal No. 188 of 1949. That appeal was disposed of by the District Magistrate by his order dated 8/12/49 whereby he set aside the order of the House Rent Controller granting exemption under Section 5. The District Magistrate, however, remanded the case for a re-hearing of the revival application and disposal according to law.

When the case went back to the House Rent Controller, that officer held, by his order dated 11/1/50, that he had no jurisdiction to decide the application for revival. Against this order the landlord preferred an appeal to the District Magistrate in H. R. C. Appeal No. 7 of 1950. The District Magistrate, by his order dated 30/3/1950, allowed the petition, set aside 'all orders passed hitherto and direct that the House Rent Controller should give a hearing to both parties and pass orders within a month from date.' It is against this order that the present petition has been filed.

2. Mr. D. Mohanty, learned counsel for the petitioner, argues that this Court has jurisdiction under Article 227, Constitution Act, to revise the order of the District Magistrate even if it be assumed that Section 115, C.P.C., does not apply. Article 227 is very wide in terms and confers on the High Court powers of superintendence over all Courts and Tribunals, throughout the territories in relation to which it exercises jurisdiction. The Article restores the power that had previously been vested in the High Courts under Section 107, Government of India Act, 1919, and does away with the restriction that had been introduced by the Government of India Act in Section 224(2). My attention has also been drawn to two cases of the Calcutta High Court reported in -- 'Abdul Rahim v. Abdul Jabbar', AIR 1950 Cal 379 (A) and -- 'Manik Lal Behari v. Parakh Kothi Ltd.', 54 Cal WN 934 (B). It has been held by that Court that the High Court in exercising this power of superintendence can also revise the order passed by a tribunal. I am therefore satisfied that this Court has got jurisdiction to revise the order of the District Magistrate.

3. Coming, however, to the merits of the case, I find that by a previous order of the District Magistrate, the case had been remanded for a re-hearing of the revival petition. Mr. Mohanty's contention is that once an application by the landlord had been dismissed there was only one remedy open to him and that was by way of an appeal under Section 12 of the Act. There is no provision corresponding to Order 9, C.P.C., enabling the House Rent Controller to restore the petition or set aside an order already passed by him. The rules framed under the House Rent Control Act do not specifically lay down as to what the procedure is to be in such cases, but it may be assumed that, in the absence of any special directions to the contrary, the rules of natural justice which are embodied in the C.P.C. should apply. It is also clear that Rule 12 of the Rules framed by the State under the Orissa House Rent Control Act, says that the District Magistrate in hearing and disposing of an appeal shall exercise the powers of an appellate Court under Section 107, C.P.C. the order of the District Magistrate, therefore, remanding the case for fresh disposal in accordance with law cannot be questioned by the applicant. Nor can his order, dated 30-3-50, be challenged as he has got the power to remand the case for fresh hearing. The petitioner, in my opinion, has therefore no grievance whatsoever and I can discover no flaw in the order passed by the District Magistrate.

4. This petition is accordingly dismissed,but in the circumstances there will be no orderas to costs.


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