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Smt. Nirmala Ben Patel Vs. Indersingh Bagi and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtOrissa High Court
Decided On
Case NumberOriginal Jur. Case No. 1450 of 1975
Judge
Reported inAIR1977Ori211; 44(1977)CLT72
ActsOrissa House Rent Control Act, 1967 - Sections 12, 13 and 21; Orissa House Rent Control Rules, 1968 - Rule 10
AppellantSmt. Nirmala Ben Patel
Respondentindersingh Bagi and anr.
Appellant AdvocateS.C. Mohapatra and ;Laxmidhar Rath, Advs.
Respondent AdvocateR.N. Sinha, Adv.
DispositionPetition allowed
Cases Referred(Rajinder Kumar v. Basheshar Nath).
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........application is to the order of 'remand passed by the appellate authority under the orissa house rent control act, 1967.2. the petitioner filed an application under section 7 (4) of the orissa house rent control act for eviction of opposite party no. 1 from a house alleging that she required the same for her personal occupation. opposite party no. 1 admitted that he was a monthly tenant under the petitioner in respect of the house in question, but contended that the petitioner did not require the house bona fide for her personal occupation. the case was posted to 19-10-74 for hearing, on that day opposite party no. 1 applied for adjournment which was rejected by the learned house rent controller and an order of eviction was passed ex parte. opposite party no. 1 preferred an appeal.....
Judgment:

Mohanti, J.

1. Challenge in this writ application is to the order of 'remand passed by the appellate authority under the Orissa House Rent Control Act, 1967.

2. The petitioner filed an application under Section 7 (4) of the Orissa House Rent Control Act for eviction of opposite party No. 1 from a house alleging that she required the same for her personal occupation. Opposite party No. 1 admitted that he was a monthly tenant under the petitioner in respect of the house in question, but contended that the petitioner did not require the house bona fide for her personal occupation. The case was posted to 19-10-74 for hearing, On that day opposite party No. 1 applied for adjournment which was rejected by the learned House Rent Controller and an order of eviction was passed ex parte. Opposite party No. 1 preferred an appeal before the Chief Judicial Magistrate (opposite party No. 2) and prayed for remanding the case to the House Rent Controller for giving him an opportunity to put forth his case. After hearing the parties the learned Chief Judicial Magistrate, Sambalpur came to the findings that though the case was not covered by the provisions of Order 41, Rule 23, Civil Procedure Code yet in exercise of his inherent powers he could remand the case for fresh disposal. Upon such finding he remanded the case to the House Rent Controller for fresh disposal.

3. It is urged on behalf of the petitioner that Section 13 of the Orissa House Rent Control Act does not confer on the appellate authority all the powers under the Civil Procedure Code and that the order of remand is outside the scope of the jurisdiction of the appellate authority. The learned counsel appearing for the opposite parties contended that though there is no specific provision in the Act enabling the appellate authority to remand the case for fresh disposal yet the appellate authority has inherent power to remand a case for fresh disposal in cases not falling strictly within the provisions of the Act.

4. Before dealing with the rival contentions of the parties it is necessary to refer to some of the provisions of the Act, and the rules made thereunder.

Sub-section (1) of Section 12 of the Act provides that an enquiry under the Act shall be of a summary nature and shall, so far as practicable, be held in accordance with the provisions contained in the Code of Civil Procedure, 1908 (Act 5 of 1908). Subsection (2) of Section 12 enjoins that all proceeding under the Act shall, so far as possible, be disposed of within a period of six months from the date of its institution.

Section 13 makes provision for appeal and Sub-section (2) thereof provides as follows:

'The authority before whom an appeal is presented shall send for the record of the case from the Controller and after perusing such record, hearing the parties and after making such further enquiries, as he thinks fit, shall decide the appeal.'

Under Section 14 finality has been attached to the orders of the appellate authority passed under Section 13.

Section 21 confers powers on the State Government to make rules to carry out the purpose of this Act, according to Sub-section (2) of that section such rules may provide for (a) the procedure to be followed by the controllers and appellate authorities in the performance of their functions under this Act, and (b) the manner in which notices and orders under this Act shall be given or served.

Rule 10 of the Orissa House Rent Control Rules, 1968 provides as follows: '10. Procedure in appeal:-- On receipt of an appeal, the appellate authority shall cause a notice to be served on the respondent in Form 'D' together with a copy of the appeal petition and such notice shall be signed by the appellate authority or any subordinate officer authorised by him in this behalf. The appellate authority shall also intimate the appellant or his authorised agent to appear on the date and time referred to in Form 'D' by serving a copy of such notice on him.'

5. The sole question for consideration is whether in view of the above provisions in the Act and the Rules the appellate authority has jurisdiction to remand a case for fresh disposal by the Controller.

6. There is no express provision in the Act enabling the appellate authority to remit a case to the Controller for fresh disposal. The language employed in Section 13 of the Act is that the appellate authority after perusing the record, hearing the parties and after making such further enquiries, as he thinks fit, shall decide the appeal. According to the dictionary meaning, 'to decide' means 'settle (question, issue, dispute) by giving victory to one side; give judgment (between, for, in favour of, against); bring, come, to a resolution' and 'decision' means 'settlement, (of question etc.), conclusion, formal judgment, making up one's mind, resolve resoluteness, decided character'. In AIR 1967 SC 148 (Vajesingh Salembhai Nayak v. State of Gujarat) Sections 17 and 20 of the Bombay Merged Territories and Areas (Jagirs Abolition) Act (39 of 1954) came up for consideration before the Supreme Court. Section 17 (1) of that Act provides that the Bombay Revenue Tribunal shall, after giving notice to the appellant and the State Government, decide the appeal and record its decision. Section 20 enjoins that the decision of the Bombay Revenue Tribunal on the appeal shall be final and conclusive and shall not be questioned in any suit or proceeding in any court. It was contended before their Lordships that the orders of the Tribunal dismissing the appeals for non-prosecution were illegal and ultra vires since it was obligatory on the part of the Tribunal to decide the appeals on merits and record its decision. Construing the above provisions their Lordships held as follows: (at p. 150)

'On a consideration of the language of Section 17 (1) of the Jagirs. Abolition Act and in the context of Section 20 of the Jagirs Abolition Act we are of the opinion that it is obligatory on the part of the Tribunal to decide appeal on merits even though there is default in the appearance of the appellants and to record its decision regarding the merits of the appeal. If an appeal is dismissed for want of prosecution it cannot be said that the Tribunal has 'decided the appeal' and 'recorded its decision' within the meaning of Section 17 of the Jagirs Abolition Act. It cannot be supposed that the legislature intended by the word 'decide' in Section 17 (1) to mean 'dispose of the appeal or to put an end to the appeal.''

In the case of Sarathi Charan Adhikari v. Additional District Magistrate (Judicial), Cuttack, (1975) 1 Cut WR 465 a Division Bench of this Court, to which one of us was a party (Mohanti, J.), relying on the aforesaid decision of the Supreme Court held that in view of the express provisions of Section 13 (2) of the Orissa House Rent Control Act, 1967 the appellate authority is bound to go through the record, hear the respondent, make further enquiries if it so desires and decide the appeal. Dismissing the appeal for non-appearance is not deciding the appeal. To decide the appeal is not the same thing as disposing of or putting an end to the appeal. It was further held that Order 41 of the Code of Civil Procedure would not be applicable to appeals under the Orissa house Rent Control Act in view of the specific provision in the Act to decide the appeal.

7. Mr. R. N. Sinha, the learned counsel for the opposite parties, relying on the decisions in AIR 1952 Pal 458 (Ram Sarup Sinha v. Inderdeo Narayan Sinha) and AIR 1968 Andh Pra 353 (FB) (Radha Bai v. Banka Chinnayya) contended that the appellate authority has an inherent power ex debito justitiae to remand a case for retrial in cases not falling strictly within the scope of Order 41, Rule 23. C P. C. In the Patna case their Lordships held that an order of remand is one of the ways of deciding an appeal. In the Full Bench decision of the Andhra Pradesh High Court it was held that quite apart from Section 107 and Order 41, Rule 23 C. P C. the appellate court has inherent power to remand which it could exercise in the interest of justice It was also observed that the power to remand cases in the interest of justice applies not only to civil courts, but also to statutory Tribunals created under special enactments.

8. There are decisions of other High Courts in which a contrary view has been taken. In the case of Mahboob Bi v. Alvala Lachmiah: AIR 1964 Andh Pra 314 the Court considered Sub-section (3) of Section 20 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act (Andhra Pradesh Act XV of 1960) which reads:

'The appellate authority shall send for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary after making such further inquiry as he thinks fit either personally or through the Controller, shall decide the appeal.'

It was held that inasmuch as the appellate court is to order further enquiry which is either to be done personally or through the Controller, it is implicit that the appeal should be kept pending all the time before the appellate authority. Reliance was placed on a decision reported in 1959 Andh LT 206 (Brijmohan Lal y. Rajalingam) wherein similar provisions contained in Subsection (3) of Section 25 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, (Hyderabad Act XX of 1954) were considered. In AIR 1968 Andh Pra 353 (FB) their Lordships did not differ from the view taken in the aforesaid decisions but observed as follows: (at p. 361).

'.........Both these decisions turn upon the precise language employed in the relevant sections. In our opinion, these decisions have no bearing on the question we have to consider viz., whether the appellate powers conferred upon the Controller under Section 92 of the Tenancy Act include the power to remand......'

In AIR 1973 Mad 388 (C. Kuttappa Nair v. S. S. A. Shahul Hameed) Hon'ble Mr. Justice Kailasam (as he then was) considered the provisions of Section 23 of the Madras Buildings (Lease and Rent) Control Act which is in pari materia with the relevant provisions in the Andhra Pradesh Act and held as follows (at p. 388):

'The section does not confer any right on the appellate authority to remand the matter for fresh disposal. All that the Sub-section empowers the appellate authority to do is to decide the appeal after making such further enquiry as he thinks fit either personally or through the Rent Controller. Option is given to the appellate authority to make the further enquiry either personally or through the Controller. It is specifically provided that the appellate authority shall decide the appeal. The only power that is left with him is that if he does not make the 'further enquiry' himself personally, he may call the Controller to make 'such further enquiry'. But the decision can only be by the appellate authority.'

Reliance was placed on a decision reported in (1949) 62 Mad LW (SN) 35 (Rangasami Naidu v. 2nd Judge, Small Cause Court, Madras) wherein the contention that the appellate authority had an inherent power to remand a case was repelled.

In 1976 Rent CJ 715 (Him Pra) (Smt. Surinder Kaur v. Shri Mohinder Pal Singh) the High Court of Himachal Pradesh considered the provisions of Section 21 (3) of the Himachal Pradesh Urban Rent Control Act, 1976 which provides:

'The appellate authority shall decide the appeal after sending for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller.'

and held as follows:

'It is clear from the terms of Section 21 (3) of the Act that the enquiry envisaged by the provision is intended in order to enable the Appellate Authority to decide the appeal. It is manifest that the provision does not contemplate that the appeal should be allowed and the case remanded to the Controller for making an enquiry and disposing of petition afresh. No such power to remand the case has been conferred by Section 21 (3) on the Appellate Authority.'

Reliance was placed on two decisions reported in 1961 Pat LR 865 (Shri Kishan Lal Seth v. Shrimati Pritam Kumar) and 1965 Pat LR 974 (Rajinder Kumar v. Basheshar Nath).

9. It is significant to note in this connection that Section 12 (2) of the Orissa House Rent Control Act. 1947 (Orissa Act V of 1947) contained provisions similar to Section 13 (2) of the 1967 Act referred to above and Rule 12 of the Rules framed under that Act provided as follows:

'12. On receipt of an appeal the District Magistrate shall cause a notice to be served on the opposite party together with a copy of the appeal petition in the manner prescribed in Rule 5. In hearing and disposing of the appeal the District Magistrate shall, so far as may be applicable, exercise the powers of an appellate Court under Section 107 of the Code of Civil Procedure (V of 1908).'

Although the provisions in Section 12 (2) of the 1947 Act requiring the District Magistrate to decide the appeal after making such further enquiries, as he thinks fit, was retained in the corresponding provisions of Section 12 (2) of the Orissa House Rent Control Act (XXXI of 1958), the provision in Rule 12 of the Orissa House Rent Control Rules, 1947 requiring the appellate authority to exercise the powers of an appellate court under Section 107 of the Code of Civil Procedure was omitted from the Orissa House Rent Control Rules, 1959 framed under Act XXXI of 1958. Rule 9 of the Orissa House Rent Control Rules, 1959 provides as follows:

'9. Appeal:-- On receipt of an appeal, the District Magistrate, or the Additional District Magistrate or any other officer specially appointed by the State Government for the purpose shall cause a notice to be served on the opposite party in Form C together with a copy of the appeal petition and such notice shall be signed by the appellate authority or any subordinate officer authorised by him in this behalf. The appellate authority shall also intimate the petitioner or his authorised agent to appear on the date and time referred to in Form C by serving a copy of such notice on the petitioner.'

It is also not without significance that by the notice in Form D prescribed under Rule 10 of the Orissa House. Rent Control Rules, 1968 the appellant is required to appear in person or by a pleader or authorised agent with all relevant documents and witnesses on the date and time mentioned in the notice. Such a direction to the appellant obviously means that the appellate authority, if it thinks fit, may hold further enquiries on the points raised in the appeal and dispose of the same expeditiously without remitting the case to the Controller for fresh decision. The change in law manifests the intention that the final decision in the appeal must be that of the appellate authority and it has no power to remit the case to the Controller for a fresh decision. This view gains support from the provisions of Section 12 of the present Act wherein some changes have been effected by making specific provision that the enquiry under the Act shall be of a summary nature and a time limit of six months from the date of institution has been provided for the final disposal of the proceedings.

10. On a careful analysis of the relevant provisions of the Act and from a conspectus of the principles laid down in the decisions referred to above we come to the conclusion that the appellate authority under the Orissa House Rent Control Act, 1967 has jurisdiction only to make such further enquiries as it thinks fit and decide the appeal but has no power to remand the case to the Controller for a fresh decision.

11. The order of the appellate authority in the instant case is in excess of his jurisdiction and is vitiated accordingly. The writ petition is allowed and the order of remand is set aside. In view of the law set out above, the appellate authority shall now proceed with the further enquiry itself and decide the appeal according to law. We make no order as to costs.

S.K. Ray, J.

12. I agree.


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