Sarathi Charan Adhikari vs Additional District Magistrate (Judicial) and Others

G.K. Misra, C.J.—Sri Sarathi Charan Adhikari, an Advocate, has filed the writ application under Articles 226 and 227 of the Constitution for quashing the orders dated 10-9-1973 and 13-11-1973 passed by the. Additional District Magistrate. (Judicial), Cuttack (opposite party No. 1) in H.R.C. Appeal No. 14 of 1972 and MISC. Case No. 6 of 1973 respectively. Shorn of details, facts may be stated in short. Petitioner is the tenant in respect of the disputed house which belongs to deceased Lokanath Sahu (opposite party No. 2) whose heirs have been substituted An order ''of eviction had been passed on 21-2-1972 by the House-Rent Controller u/s 7 of the Orissa House-Rent Control Act, 1967 (hereinafter to be referred to as the Act). House-Rent Control Appeal No. 14 of 1972 filed by the Petitioner was posted for hearing to 10-9.1973. On that day the Petitioner filed his hazira and attended the Court in the first hour. He took permission of the appellate authority at about 11. 30 a. m. to argue the appeal after an hour as he had to attend the Court of the Registrar of the High Court in M.J.C. No. 135 of 1973. He attended the Court of opposite party No. 1 at 1. 10 p. m. and learnt that the appeal had been dismissed for default on account of his non-appearance. He filed Misc. Case No. 6 of 1973 on the very day for restoration of the appeal which was dismissed on 13-11-1973.

A counter was filed by opposite party No. 2 alleging that the Petitioner delayed the disposal of the appeal by taking frivolous adjournments and the appeal and the misc. case were rightly dismissed.

The Petitioner argued his own case and raised the following contentions:

(i) In the absence of the Petitioner on 10.9-1973, H.R.C. Appeal No. 14 of 1972 should have been decided on merits and not dismissed for default.

(ii) Misc. Case No. 6 of 1973 to restore H.R.C. Appeal No. 14 of 1972 should have been allowed as there was sufficient cause for non-appearance of the Petitioner.

Mr. Biswal for opposite party No. 2 contended that Order 41, Rule 17(1) CPC applies to appeals u/s 13 of the Act and that the appeal was rightly dismissed for default and there was no sufficient cause for restoration of the appeal.

On the aforesaid contentions the following questions arise for consideration:

(i) Was there sufficient cause for non-appearance of the Petitioner on 10.9-1973 when the appeal was fixed for hearing?

(ii) Do the provisions of Order 41. CPC fully apply to appeals under section. 13 of the Act?

(iii) Did the appellate authority by dismissing the appeal for default exercise its jurisdiction illegally?

Point No. (i): To appreciate this contention the impugned order passed by the appellate authority may be extracted:

10-9-1973. Both parties present. 1 he Appellant wanted time at 11:30 a.m. for an hour to go to H.C. to see if any case is pending for hearing. Though in view of the specific last order time should not be-granted, for adjournment, time till 12:30 p. m. is allowed for hearing. Parties to come punctually at 12. 30 for hearing.

Sd. B.K. Patnaik: A.D.M. (J)

Later I called the parties at 12. 40 p. m. The Respondent 1. O. p. m. appeared with lawyers but Appellant did not appear. I had to wait till 1.0. p. m. exclusively for this case. I had also ordered on the last day that on no account the hearing be deferred and understanding full wen there is wilful default and his physical presence at 11:30 a.m. is an apology for readiness of the appeal and is subterfuge to avoid criticism. There is absolutely no justification to wait sine die.

The appeal is dismissed for default with costs.

Dictated. Sd. B.K. Patnaik A.D.M. (J)

It is admitted it paragraph 6 of the writ application that the Petitioner arrived at the Court of opposite party No. 1 at 1.10 p. m. The appellate authority was, therefore" justified in dealing with the appeal in the absence of the Petitioner though the further question arises whether it should have dismissed the appeal for default or should have disposed of the same on merits.

In paragraph 5 of the writ application the Petitioner stated on affidavit that he attended the Court of the Registrar of the High Court In M.J.C. No. 135 of 1973 on 10-9-1973. This averment is a he. No order has been passed on 10-9-1973 by the Registrar. On reference to records it appears that a notice was issued on 10-9-1973 that the cause list of the Lawazima Court published for 10th September, 1973 will be taken up on 12th September, 1973. On 11-9-1973 another notice was issued that the Lawazima Court will not function on 12-9-1973 and the list published on 10-9-1973 will be taken up on 14th September, 1973. It was taken up on 14-9-1973 and the following order was passed:

14-9-1973. Three days time is allowed for removal of both the defects as per S.R., failing either place before -the Bench for dismissal.

The Petitioner also made a false statement in his deposition dated 12-11-1973 in Misc. Case No. 6 of 1973 that he went to the High Court''s Registrar in connection with a case fixed for hearing after 11:30 a.m. Thus, the Petitioner made false statements both in the writ application as well as in his deposition before the A.D.M. (Judicial) that he was busy before the Registrar in M.J.C. No. 135/73 on 10-9-1973 after 11-30 a. m.

Section 12(2) of the Act prescribes that all proceedings under this Act shall, as far as possible, he disposed of within a period of six months from the date of its institution. Despite this mandatory provision opposite party No. 1 allowed the appeal to protract for about one and half years without exercising adequate control. He seems to have had no anxiety to dispose of the appeal within a period of six months.

On a previous occasion the appeal was dismissed for default on 29-9-1972 and it was restored on 11-5-1973. We are, therefore, satisfied that non-appearance of the Petitioner at 12.30 p. m. on 10-9-1973 was wholly unjustified.

Point Nos. (ii) and (iii): The next question for consideration is whether Order 41, CPC has full application to the hearing of an appeal u/s 13 of the Act. To appreciate this question Sections 12(1), 13, 14 and 21 of the Act may be extracted:

Enquiry and Procedure- (1) An enquiry under this 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).

Appeal-(1) Any person aggrieved by an order of the Controller may within thirty days from the date on which the order is communicated to him, present an appeal in writing to the Additional District Magistrate (Judicial) or any other officer specially appointed by the State Government for the purpose.

(2) 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.

Finality of orders - All orders passed by the Controller shall, subject to the decision, if any, made in an appeal, be finel and shall not be called into question in any Court.

Power to make rules - (1) The State Government may make rules to carry out the purposes of this Act.

(2) Without prejudice to the generality of the foregoing power, such rules may provide for (a) the procedure to be followed by 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.

Section 12(1) this prescribes that so far as practicable an enquiry under the Act shall be held in accordance with the provisions of the CPC Code.

An -appeal u/s 13 comes within the ambit of an enquiry within the meaning of Section 12(1) and as such Order 41, CPC dealing with appeals from original decrees would be applicable to the hearing of an appeal u/s 13 so far as practicable. The expression "so far as practicable" is significant. It means that Order 41 would not be applicable to appeals under the Act if there is inconsistency or repugnancy. In other words, if there is specific provision in the Act to decide the appeal in a particular manner and there is a contrary provision in Order 41, then the provisions of the Act would prevail and to the extent of inconsistency the provisions of Order 41 would not apply.

Section 14 clearly bars a second appeal or revision. That means the order of the appellate authority is final.

Section 21 invests the State Government with the power to make rules to carry out the purposes of the Act. Without prejudice to the generality of the power conferred under Sub-section (1) the State Government would have power to make rules regarding the procedure to be followed by Controllers and appellate authorities in the performance of their functions under the Act and the manner in which notices and orders under the Act shall be given or served.

Rule 10 of the Orissa House Rent Control Rules, 1968 (hereinafter to be referred to as the Rules) prescribes the procedure in appeal. Rule 10 runs thus:

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.

The appellate authority shall not only cause a notice to be served on the Respondent in form ''D'' but shall intimate the Appellant to appear on the date and time referred to in Form ''D'' by serving a copy of such notice on him.

It would be profitable to reproduce Form ''D'' in which notice would be served on the Respondent and intimation would be given to the Appellant.

FORM ''D''

Form of Notice in appeal (see Rule 10) BEFORE H.R.C. Appeal No. ... of 19..

To

... of ... (Respondent)

Whereas Shri/Shrimati ... has filed an appeal (copy enclosed) against the order dated ... of the House Rent Controller passed in ct. R.C. Case No.... of 19... you are hereby required to appear before me in person or through your authorised agent or by a pleader duly instructed, and able to answer all material questions relating to the case or who shall be accompanied by some person able to answer such questions on the day of 19... at ... A.M./P.M. to meet the points raised in the appeal.

Take notice that in default of your appearance on the date and time above mentioned the appeal shall be heard and decided in your absence.

Signature of the Appellate Authority or any subordinate officer authorised in this behalf.

Copy forwarded to Shri/Shrimati ... of ....

(Appellant) for information. He/she is hereby directed to appear before me in person or by a pleader or his/her authorised agent with all relevant documents and witnesses on the day and time mentioned above. Take notice that in default of your appearance on the day and time mentioned above, the appeal shall be beard and decided in your absence.

Signature of the Appellate Authority.

Section 13(2) expressly prescribes that the appellate authority shall send for the record of the case and it shall decide the appeal after perusing the record, hearing the parties and after making such further enquiries as it thinks fit. There is no provision In the Act that if the Appellant is absent on the date of hearing the appeal shall be dismissed for default.

On the contrary, the notice in Form ''D'' prescribed under Rule 10 which is also to be served on the Appellant dearly enjoins that in default of appearance of the Appellant on the day and time fixed for hearing, the appeal shall be heard and decided in the Appellant''s absence. Form ''D'' is in conformity with Section 13(2).

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. The plain language of Section 13(2) is not capable of a construction that in the absence of the Appellant the appeal may be dismissed for default.

The question for consideration is whether Order 41, Rule 17(1) is applicable to the hearing of the appeal under the Act. Rule 17(1) runs thus:

Dismissal of appeal for Appellant''s default.-(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the Appellant does not appear when the appeal is called on for hearing, the Court may make an older that the appeal be dismissed.

Thus, if Order 41, Rule 17(1) applies to the hearing of an appeal under the Act, the impugned order dated 10-9-1973 could be in accordance with law.

As has already been stated, the CPC would be applicable to enquiries and hearing of appeals under the Act as far as practicable. Section 13 prescribes that even in the absence of the Appellant the appeal shall be decided on merits; Order 41, Rule 17(1) is inconsistent with Section 13(2). In case of repugnancy the Act would prevail. In other words, it would not be practicable to apply Order 41, Rule 17(1) to the hearing of an appeal under the Act.

It would be instructive to examine the notice in Form No. 6 in Appendix 6 of CPC issued under Order 41, Rule 14. It may be extracted:

No. 6 Notice to Respondent of the day fixed for the hearing of the appeal. (Order 41, Rule 14.) (Title) Appeal from the of the Court of dated the day of 19 Respondent. To Take notice that an appeal from the decree of in this case has been presented by and, registered in this Court, and that the day of 19 has been fixed by this Court for the hearing of this appeal.

If no appearance is made on your behalf by yourself, your pleader or by some one by law authorised to act for you in this appeal it will be heard and decided in your absence.

Given under my hand and the seal of the Court, this

day of 19

Judge.

A copy of this notice is not to be served on the Appellant unlike that of Form ''D'' under Rule 10 of the Rules which enjoins that the appeal will be heard and decided in the absence of the Appellant.

Our conclusion that the appeal cannot be dismissed for default is fully supported by Vajesingh Salambhai Naik and Others Vs. State of Gujarat and Another, . Facts of that case are as follows: The Appellants therein had applied for compensation to the Jagir Abolition Officer, Baroda, u/s 13 of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 (hereinafter to be referred to as the Jagirs Abolition Act) in respect of their proprietary Jagirs. Against the award of compensation made by the Jagir Abolition Officer the Appellants preferred appeals u/s 16 of that Act. The appeals were dismissed for non-prosecution. An application under Article 227 of the Constitution was filed in the High Court to quash the order refusing restoration. Their Lordships noticed Sections 15 to 20 of that Act. Sections 16, 17 and 20 as extracted in that case are reproduced.

An appeal shall lie against an award of the Collector to the Bombay Revenue Tribunal constituted under the Bombay Revenue Tribunal Act, 1957 notwithstanding anything contained in the said Act.

(1) The Bombay Revenue Tribunal shall, after giving notice to the Appellant and the State Government, decide the appeal and record its decision.

(2) In deciding an appeal under this Act the Bombay Revenue Tribunal shall exercise all the powers which a Court; has and shall follow the same procedure which a Court follows in deciding appeals from the decree or order of an original Court under the Code of Civil Procedure, 1908.

The award made by the Collector subject to an appeal to the Bombay Revenue Tribunal and 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 would thus be seen that Section 17(1), 17(2) and 20 of the Jagirs Abolition Act respectively correspond to Sections 13(2), 12(1) and 14 of the Act.

Analysing the sections of the Jagirs Abolition Act their Lordships observed thus:

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 an 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''. It is important to notice that Section 20 of the Jagirs Abolition Act makes a decision of the Tribunal in appeal as final and conclusive and not to be questioned in any suit or proceeding in any Court. In the context of Section 20 and in view of the express language of Section 17(1) of the Jagirs Abolition Act we are of opinion that the Tribunal has no power to dismiss an appeal for non prosecution but it is obligatory on its part to decide the appeal on merits and to record its decision even though there is default on the part of the Appellant to appear in the appeal.

In Narasingh Misra v. A.D.M. (Judicial), Cuttack and Ors. O.J.C. No. 459 of 1972, decided on 28-2-1974, our learned brothers R.N. Misra and B.K. Ray, JJ. held on similar facts that the appeal u/s 16 of the Act can be dismissed for default for nonappearance of the Appellant. The decision is not good law being contrary to Vajesingh Salambhai Naik and Others Vs. State of Gujarat and Another, . In the circumstances, there is no necessity to refer the matter to a larger Bench to consider the correctness of that decision.

On the aforesaid analysis, we are dearly of opinion that the appellate authority exercised a jurisdiction which it had not in dismissing the appeal for default on 10-9-1973 and that order is liable to be quashed.

The next question for consideration is whether the appellate authority acted illegally in the exercise of its jurisdiction in dismissing the application for restoration. Order 41, Rule 19, CPC runs thus:

Re-admission of appeal dismissed for default. Where an appeal is dismissed under Rule 11, Sub-rule (2) or Rule 17 or Rule 18, the Appellant may apply to Appellate Court for the re-admission of

the appeal; and, where it is proved that he was ''prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall readmit the appeal on such terms as to costs or otherwise as it thinks fit.

In view of our conclusion that there was no sufficient cause for non-appearance of the Petitioner and the appeal could not have been dismissed under Order 41, Rule 17(1), Order 41, Rule 19 CPC has no application. But as the impugned order, dated 10-9-1973 is without jurisdiction and as such a nullity the appeal is to be heard and decided even though the application for restoration does not come within the ambit of Order 41, Rule 19. CPC Code. On the application for restoration the appellate authority could have restored the appeal not on the ground that Order 41, Rule 19. CPC applied but on the ground that it should not have dismissed the appeal for default and in exercise of its inherent powers u/s 151, CPC it could have restored the appeal which it wrongly dismissed for default though it should have heard the same and decided on merits.

We would sum up our conclusions thus:

(i) There was no sufficient cause for the Petitioner to be absent on the date of hearing of the appeal on 10-9-1973.

(ii) The appeal cannot be dismissed for default for nonappearance of the Appellant but it is to be heard and decided in the absence of the Appellant.

As a result of the aforesaid conclusions the impugned order dated 10-9-1973 is vacated and the appeal will proceed from the stage when the Appellant failed to appear at the hearing.

We would accordingly issue a writ of certiorari quashing the order dated 10-9-1973 and direct that the appeal will be heard and decided in the absence of the Appellant. As the advocate for the Respondent was present at the time of hearing he will be heard. The writ application is allowed. Parties to bear their own costs.

The appeal is very old. As far as possible it should have been decided within six months. It will be peremptorily heard on 26-5-1975 by opposite party No. 1 in the absence of the Appellant but in the presence of the advocate for the substituted legal representatives of deceased opposite party No. 2, who will appear before him on the date fixed by us for hearing. In case he does not appear at the hearing the appeal will also be heard and decided in his absence.

P.K. Mohanti, J.

I agree.