Decided on February 18,1988

OJIFA BIBI Respondents


G.B.PATNAIK, J. - (1.) Both these writ petitions were heard together and are being disposed of by this common judgment since both are interlinked. Petitioner in O.J.C. No. 865 of 1983 is the tenant in respect of a house belonging to the opposite parties 1 to 9. The petitioners in O.J.C. No. 2495 of 1987 are the landlords in respect of the self same house.
(2.) The tenant-petitioner in O.J.C. No. 865 of 1983 is the son of Sarfuddin who is since dead and brother of Kamruddin (opposite party No. 10). The co-sharer landlords in respect of Holding No. 486 in Ward No. VI of Cuttack Municipality filed a petition for eviction of the tenants namely Sarfuddin (since dead), Rahimuddin (present petitioner) and Kamruddin (present opposite party No. 1) both on the ground of wilful default in payment of rent as also on the ground of bona fide requirement of the landlords. In the said proceeding, Rahimuddin remained ex parte but his brother Kamruddin as well as father Sarfuddin filed a joint written statement and contested the proceeding. The learned House Rent Controller allowed the prayer of eviction on the conclusion that the tenants wilfully defaulted in payment of rent as well as on the ground that the landlords required the house bona fide for their own use. The prayer for eviction was allowed ex parte against Rahimuddin and on contest against Kamruddin, while the father Sarfuddin died during the pendency of the original proceeding. This judgment of the House Rent Controller is dated 18-9-1975, and has been annexed as Annexure-2 to the writ petition in O.J. C. No. 865 of 1983. This order of eviction passed by the Controller was challenged by Kamruddin in appeal, but the same was dismissed on 3-7-1976. The matter was then carried to this Court in O.J.C. No. 1036 of 1976 at the instance of said Kamruddin and ultimately the writ application was dismissed by order dated 26-11-1981. Shortly thereafter Rahimuddin preferred an appeal being H.R.C. Appeal No. 49 of 1982 in the Court of the Chief Judicial Magistrate, Cuttack, against the original order of eviction passed by the learned House Rent Controller in H.R.C. Case No. 84 of 1974 on the ground that the order of eviction was not binding against him since he was a minor during the original eviction proceeding and there had been no proper representation of such minor by a guardian in the said proceeding. The learned Chief Judicial Magistrate dismissed the aforesaid appeal by order dated 19-2-1983. The said order of the appellate authority has been annexed as Annexure-5 to the writ petition in O.J.C. No. 865 of 1983 and is being impugned in this writ petition. The learned Chief Judicial Magistrate after scrutinising the materials on record came to the conclusion that there had been due service of notice of the original eviction proceeding on the present petitioner and yet the petitioner did not appear. In the appellate Court, the petitioner had filed an application under O.41, R.27, Code of Civil Procedure, praying there in that the Certificate issued by the Registrar of Births and Deaths indicating the minority of the petitioner on the date when the original eviction proceeding culminated may be taken as additional evidence. This prayer of the petitioner was rejected by the learned appellate authority after coming to a conclusion that the document sought to be marked by way of additional evidence was a highly suspicious one and the pre-conditions for giving additional evidence as laid down in R.27 of O.41, Code of Civil Procedure, had not been satisfied. After rejecting the said prayer, the appellate authority then came to the conclusion that there was no basis for coming to a conclusion that the present petitioner was a minor on the date of filing of the original eviction proceeding. The appellate authority also rejected the petitioner's plea regarding non-communication of the order of eviction and held that "the plea of the appellate that the order was not communicated to him and he does not know about the order can never be accepted." On these conclusions, the learned Chief Judicial Magistrate dismissed the appeal.
(3.) The sole ground on which the learned counsel for the petitioner assails the order of the Chief Judicial Magistrate under Annexure-5 is that there has been an illegal exercise of jurisdiction in refusing to take evidence with regard to the minority of the petitioner and under S.13(2) of the Orissa House Rent Control Act, it is the bounden duty of the appellate authority to make further inquiry as he thinks fit. Such refusal of the appellate authority to consider the additional evidence produced by the petitioner has vitiated the ultimate conclusion and accordingly the impugned order under Annexure-5 is liable to be set aside by this Court.;

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