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Smt. Debmeni @ Devmani Atha Vs. Smt. Sarala Ben Mulji Bhinda - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 240 of 1981
Judge
Reported in1985(I)OLR215
ActsOrissa House Rent Control Act, 1967 - Sections 12 and 16; Code of Civil Procedure (CPC) , 1908 - Sections 144 and 151 - Order 9, Rule 13
AppellantSmt. Debmeni @ Devmani Atha
RespondentSmt. Sarala Ben Mulji Bhinda
Appellant AdvocateR.K. Mohapatra, A.N. Misra, N.N. Nanda and S.C. Basa
Respondent AdvocateB.K. Mohanty, P.K. Misra, L. Das, J.P. Patnaik, R.N. Sinha, S.N. Sinha and P.K. Routray
DispositionRevision allowed
Cases ReferredMuiraj v. Murti Raghunathji. The
Excerpt:
.....was created under the statute, in section 12 it was clearly provided that an enquiry shall, so far as practicable, be held in accordance with the provisions contained in the code of civil procedure. the phrase 'as far as' practicable' gives wide scope for application for the provisions of the code unless clearly it defeats the legislative intention. in the meantime, the judgment-debtor has failed to set aside the ex parte order and an appeal is pending against the said order......c. p. c.(ii) even if such an application is entertainable, the controller has no power to grant stay of execution proceeding;(iii) assuming that the controller has jurisdiction to grant stay, it had no effect since the writ had already been issued, before the same was communicated to the executing court ; (iv) the direction of the executing court not to execute the decree had no effect since the process server delivered possession before knowledge of the direction;(v) whatever be the effect of stay order, ramachandra patel is not a party to the proceeding and he cannot be evicted.5. mr. r. n. sinha, the learned counsel for the opposite party on the contrary submitted that :(i) the question of applicability of order 9, rule 13, c. p. c. to proceedings under the act is not open to.....
Judgment:

S.C. Mohapatra, J.

1. Decree-holder is the petitioner in this Civil Revision. She owns a house in Jharsuguda town. Opposite party was inducted as a monthly tenant in respect of that house by the petitioner. Petitioner filed an application under Section 7 of the Orissa House Rent Control Act, 1967 (Orissa Act 4.of 1.968) (hereinafter referred to as the Act) for directing the opp. party to' deliver possession to the petitioner. The Controller directed the opposite party to deliver possession in her absence. Petitioner filed an application for execution of the order in the Court of Munsif, Sambalpur. On 4.9.1980, the executing Court directed issue of writ of delivery of possession of the house by breaking open the lock fixing 30th September,: 1980 as the returnable date. Shortly thereafter, opposite party filed an application before the Controller under Order 9, Rule 13, Civil Procedure Code, for setting aside the ex parte order of eviction. She also filed an application for stay of the execution case. On 16.9.1980, the Controller passed an order staying the execution case which was communicated to the executing. Court on 17.9.1980. Executing Court, on receipt of the order, stayed further proceeding of the execution case and directed return of the writ unexecuted. The Nazir of the executing Court, however, reported on the same day that no such writ was pending with him. While the matter stood thus on 27.2.1980 the process server to whom the writ was entrusted for execution, delivered possession of the house to the petitioner. Neither the process server not the decree-holder had knowledge that the execution case had been stayed. On 29.9.1980, the son of the opp. party filed an application before the executing Court for restoration of possession of the house and the materials to him after service of a copy on the Advocate for the petitioner. This application was registered as Misc. Case No. 24 of 1980 and the same is yet pending disposal.

On 3.10.1980, opposite party filed an application for restitution of the house to her on the ground that in spite of the order of stay, the writ has been executed. On the same day, petitioner inducted one Ramchandra Patel as a tenant. The application of the opposite party for restitution was registered as Misc. Case No. 25 of l980. After hearing the petitioner and the opposite party, the executing Court, by order dated 12.3.1981 granted restitution of the house. Petitioner has impugned the same in this Civil Revision.

2. Executing Court granted restitution on the finding that the delivery of possession was effected through Court on 27.9.1980 on account of the laches and mistake of the Nazir when the stay order was in force and it was necessary in the interest of justice to restore the effect of the stay order and undo injustice meted out to opposite party. Ramchandra Patel being inducted as a tenant, after the application of the son of opposite party for restoration of the house, was accepted as the representative of the landlord to be bound by the order of eviction. Ramchandra Patel was not a party to the restitution proceeding and has not been given opportunity of being heard in the matter.

3. In course of hearing, there was some factual disputes for which the records of the House Rent Control Proceeding, the Execution Proceeding and the appeal before the Chief Judicial Magistrate were called for. It is seen from these records that the application before the Controller for setting aside the ex parte order has been dismissed and opposite party has filed an appeal against such dismissal before the Chief Judicial Magistrate which is pending disposal.

4. Mr. R. K. Mohapatra, the learned counsel for the petitioner submitted that :

(i) the Controller has no jurisdiction to entertain an application under Order 9, Rule 13, C. P. C.

(ii) even if such an application is entertainable, the Controller has no power to grant stay of execution proceeding;

(iii) assuming that the Controller has jurisdiction to grant stay, it had no effect since the writ had already been issued, before the same was communicated to the executing Court ;

(iv) the direction of the executing Court not to execute the decree had no effect since the process server delivered possession before knowledge of the direction;

(v) whatever be the effect of stay order, Ramachandra Patel is not a party to the proceeding and he cannot be evicted.

5. Mr. R. N. Sinha, the learned counsel for the opposite party on the contrary submitted that :

(i) the question of applicability of Order 9, Rule 13, C. P. C. to proceedings under the Act is not open to challenge in view of the consistent decisions of this Court.

(ii) in view of Section 16 of the Act, Controller has power to grant stay and in any case, it is an incidental power for effective adjudication of the application under Order 9, Rule 13, C. P. C. to give relief to the parties but for which the application under Order 9, Rule 13, C. P.C. would become infructuous ;

(iii) issue of writ would not validate the delivery of possession as all actions subsequent to the order of stay are nullity ;

(iv) the process server is a ministerial officer acting for the Court and opposite party should not suffer for the mistake of the Court, and

(v) Ramchandra Patel is a representative of the petitioner bound by the order against the petitioner.

6. In 18 (1952) C.L.T. 279 : Nimai Charan Kamila v. Shyam Mohan Nandi, this Court held that the Controller has jurisdiction to entertain an application under Order 9, Rule 13, C. P. C. The same view has been reiterated in the decision reported in I. L. R. 1970 Cut. 986 : Sarat Chandra Tripathy v. Hirambala Devi, and unreported decision in O. J. C. 1904 of 1982 decided on 8. 8. 1984 (Khirodmani Haldar and Anr. v. Chief Judicial Magistrate and Ors.). Mr. Mohapatra submitted that the decision in 18 (1952) C. L. T. 279 (supra) is contrary to the principle in I. L. R. 1963 Cut. 910 : Jogeswar Bhoi v. Jibardhan Bhoi and the latter two decision though of the Division Benches are contrary to the earlier Division Bench decision. In I. L. R. 1963 Cut. 910 (supra) it was held that the Arbitrator under Orissa Act XVIII of 1948 was not an ordinary Civil Court. Mr. Mohapatra submitted that the Controller under the Act is also not an ordinary Civil Court, It is to be kept in view that the rights and liabilities under Orissa Act XVIII of 1948 were newly created rights and liabilities. The remedies thereunder were of a special nature which were not pre-existing in ordinary Civil Courts prior to the statute came into force. In respect of those special statutes, the provision of the Civil Procedure Code would not be applicable unless the language impliedly permits the same. The Orissa House Rent Control Act, however, deals with pre-existing rights and liabilities, enforcement of which was available in ordinary Civil Courts. It is a benevolent statute . to give protection to the tenants of houses in certain areas to be selected and notified by the State Government. Though special forum was created under the statute, in Section 12 it was clearly provided that an enquiry shall, so far as practicable, be held in accordance with the provisions contained in the Code of Civil Procedure. This provision is not subject to the rules to be made. The phrase 'as far as' practicable' gives wide scope for application for the provisions of the Code unless clearly it defeats the legislative intention. In 41 (1975) C. L. T. 721: Sarathi Charan Adhikari v. . Additional District Magistrate (Judicial) Cuttack), cited by Mr. Mohapatra, the scope of applicability of Order 41, Rule 19, Civil Procedure Code, was examined and it was held that within the scheme of hearing an appeal, the provision is not applicable. In view of the direct decisions of the Court, there is no scope to hold otherwise. In conclusion, the Controller has Jurisdiction to entertain and decide applications under Order 9, Rule 13, C. P. C.

7. Section 16 of the Act reads as follows :

'16. Stay of execution of decree or order for eviction in certain cases.

(1) Notwithstanding anything in any law or in any of the other provision of this Act, where a person who continues in possession of a house in spite of a decree or order of eviction therefrom made against him before the commencement of this Act and would but for such decree or order be a tenant within the meaning of this Act, has preferred an appeal against, or made an application for review or revision of, the decree or order to Court of competent jurisdiction, such Court may for sufficient cause order stay of execution of the decree or order pending the disposal of the appeal or, as the case may be, application for review or revision.

(2) The Court may, while ordering stay of execution under Sub-section (1) impose such terms and conditions in respect of the quantum and manner of payment of rent of the house or in respect of the manner of possession thereof as the Court may deem fit, and on breach of any such terms and conditions by the person aforesaid the Court may, after giving such person a reasonable opportunity of being heard, vacate the order of stay of execution of the decree or order.'

Section 6 of the Act provides that a tenant cannot be evicted otherwise than under Section 7. An order under Section 7 can be passed only by the Controller which is not a Court. An appeal under Section 13 against an order under Sec .7 is to be heard and decided by the Chief Judicial Magistrate. For the purpose of this Act the appellate authority is not a Court. There is no provision under the Act for review or revision of the order. Appeal, revision or review are creatures of the statute and without such right being conferred, an agrieved person cannot prefer an appeal, revision or review. While keeping in view that the words used in a statute must be given the natural meaning, it is also to be kept in mind that legislature never uses words which would have no meaning. The expressions find place in a benevolent statute where liberal meaning is to be given to meet the legislative intention. Accordingly, expression 'Court' 'review' or 'revision' in Section 16 are to be given liberal meaning to have full effect of the provision for benefit of the tenant. 'Court' would, thus, mean the statutory authorities under the Act. 'Review or Revision would mean reconsideration of the order by the authority who passed the order. 'Possession' means the actual physical possession of the tenant. Controller, thus has jurisdiction to stay further proceeding of the execution pending disposal of an application under Order 9, Rule 13 C.P.C.

8. The order of stay was passed on 16.9.1980 and was communicated on 17.9.1980. Had the writ been issued after 17.9.1980 it would have been a nullity as has been held in A. I. R. 1967 S. C. 1386: Muiraj v. Murti Raghunathji. The issue of the writ in this case cannot be said to be a nullity. In the aforesaid decision of the Supreme Court it has been held that the executing Court is to exercise its inherent power to undo the injustice meted out with out knowledge of the stay order. It cannot be said that the order of stay became ineffective. The stay order would be effective from the stage it was brought to the knowledge of the executing Court. In fact, the executing Court rightly directed the return of the writ unexecuted.

9. In spite of the direction of the executing Court, possession was delivered by the process server as he had no knowledge of direction. Though there has been delivery of possession in such circumstances, it is not a nullity, where the lack of knowledge of the process server being on account of mistake of the Court a party is not to be prejudiced in such circumstances. Mr. Mohapatra is not correct that the Court has become functus officio after delivery of possession.

10. Submission of Mr. Mohapatra is that after taking delivery of possession, the landlord has already inducted a tenant who has spent huge money for repairs of the house. Even if the Court is not functus officio, the inherent power of Court should not be exercised to eradicate one technical prejudice where a third party would be . factually prejudiced.

11. Mr. Sinha however, submitted that a tenant being inducted by the landlord is his representative and cannot claim any equity which would not be available to the landlord himself. The order of the Controller under Section 7 of the Act directing eviction has not been reversed or modified. Accordingly, Section 144, C. P. C, in terms is not applicable. There is no dispute that in appropriate cases, inherent power under Section 151, C. P. C, can be exercised by the executing Court to grant restitution. In this case on account of laches and mistakes of the officer' of the Court, the judgment-debtor-opposite party has been deprived of the possession. Unless right of any other innocent person has been created in the meantime as in the case or a bona fide purchaser for value without notice, mistake of the Court is not to prejudice any suitor. A proceeding under Section. 144, C. P. C, does not allow consideration of subsequent event as equity has no place where the statute does not provide for the same. While exercising the inherent power, however, subsequent events can be taken note of. In the meantime, the judgment-debtor has failed to set aside the ex parte order and an appeal is pending against the said order. Judgment-debtor an old lady was staying with her son at Talcher at the time of delivery of possession and no evidence has been led to prove her suffering on account of the order of eviction. She has continued without possession for more than three years, in view of order of stay of this Court. Whether Ramchandra Patel who is continuing in pessession as a tenant has acquired any right is essantial to be considered in this case. Natural justice demands Ramchandra Patel to be heard, since he was not inducted as a tenant during the pendency of the application of the opposite party for restitution. Therefore, the order of the executing Court directing restitution is set aside and the matter is remitted back to the executing Court for reconsideration after giving opportunity to Ramchandra Patel to be heard in the matter. Unless this is done, the litigation cannot become final and Ramchandra Patel might raise objection and defeat any adverse order on the ground that he is not bound by the same.

12. The Civil Revision is accordingly allowed. There shall be no order as to costs.


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