G.B. Pattnaik, J.
1. Petitioner was a monthly tenant in respect of holding No. 331 in Ward No. 22 within Cuttack Municipality since 1976. Opp. Party No. 1 filed an application for eviction of the petitioner under Section 7 of the Orissa House Rent Control Act on the ground of bona fide requirement and wilful default. The House Rent Controller passed an order of eviction ex pane on 13-12-1978. The petitioner had no knowledge of the said House Rent Control proceedings and could know about the same only when the landlord opp. party No. 1 levied execution in the Court of the Munsif, First Court, Cuttack, and 'the clerk-in-charge of the petitioner's case could know of the same. The petitioner avers that after inspection of records on 1-11-1983 in the execution case, the petitioner came to know of the ex parte order passed by the House Rent Controller and he filed an application before the Controller under Order 9, Rule 13, CPC alleging that there has been suppression of summons in the house rent control proceedings and further alleging that the delay in approaching the Controller under Order 9, Rule 13 was on account of illness. Simultaneously in the execution case which was registered as Execution Case No. 62 of 1933, the petitioner filed an objection under Section 47, CPC challenging the executability of the order on the ground of fraudulent suppression of summons. This objection filed under Section 47 was registered as Misc. Case No. 214 of 1983 and the same having been dismissed by order dated 10-1-1984 the petitioner has assailed the same in Civil Revision which has been registered as G.R. No. 163 of 1984 and will be disposed of today.
The application filed by the petitioner under Order 9, Rule 13, CPC which was registered as Misc. Case No. 25 of 1983 was heard by the Controller and the Controller by order dated 16-1-1985 rejected the said application, on a finding that the application was barred by limitation. On the merits of the petitioner's allegation with regard to non-service of summons, the Controller, however, recorded a finding that the notice in the HRC Case or even notice in the execution case under Order 21, Rule 22, GPC had not been served on the petitioner. This order of the Controller rejecting the petitioner's application under Order 9, Rule 13 was assailed in appeal in HRC Appeal No. 10 of 1985. The appellate authority confirmed the finding of the Controller with regard to non-service of notice on the petitioner both in the HRC case as well as in the execution case and yet dismissed the appeal on 11-7-1986 on the ground that the petitioner had the knowledge about the execution case and, therefore, the application under Order 9, Rule 13, CPC was filed beyond time. The petitioner thereafter has approached this Court in this writ application.
2. Mr. Mukherjee appearing for the petitioner raises the following contentions in assailing the orders of the lower forums:
(i) Since both the Controller as well as the appellate authority had recorded a finding that there was no service of notice on the petitioner in the house rent control proceeding as well as in the execution case, the order of the House Rent Controller evicting the petitioner is null and void and, therefore, the Controller as well as the appellate authority committed error in not restoring the said house rent control proceeding by recalling an invalid order of eviction ;
(ii) An order of eviction becomes appealable under Section 13 only when the same is communicated to the tenant. The order not having been communicated as yet, right of appeal of the petitioner still subsists, and, therefore the Controller as well as the appellate authority failed to exercise their jurisdiction vested in law in not restoring the house rent control proceeding by recalling the ex pane order of eviction ;
(iii) The observation of the Controller to the effect that the petitioner in his evidence has admitted that he was aware of the execution case in September 1983, constitutes an error of record and, therefore, the ultimate conclusion is vitiated.
The learned counsel appearing for opp. parties 1 and 2, on the other hand, contends that the records of the proceedings having indicated about service of summons on the petitioner a presumption as to the correctness of the same attached under Section 114 of the Evidence Act, and therefore the Controller and the appellate authority committed an error in recording a finding that there had been no service of notice on the petitioner in the house rent control proceeding. He further urges that the petitioner, a tenant not having paid arrears of rent is not entitled to invoke the extraordinary equitable jurisdiction under Article 226 of the Constitution.
3. Having heard Mr. Mukherjea for the petitioner and Mr. Moharana for opp. parties 1 and 2, we find sufficient force in the submissions made by Mr. Mukherjee for the petitioner. The concurrent findings of both the Controller as well as the appellate authority with regard to service of summons on the petitioner in the house rent control proceeding is that there has been no due service of summons on the petitioner in the House Rent Control proceeding. It is undoubtedly true that there is a presumption that official acts must be presumed to be correctly done under Section 114 of the Evidence Act, but that presumption is a rebuttable one. Notwithstanding the said presumption, on the materials the Controller as well as the appellate authority having recorded a finding that there has been no service of summons on the petitioner in the house rent control proceeding that finding is unassailable and cannot be interfered with by this Court in a writ application. In view of the said finding, there is no manner of doubt that the ex parte order of eviction passed by the Controller becomes null and void. Consequently, when the petitioner came to Know of the said order approached the Controller for setting aside the said ex parte order and for restoring the house rent control proceeding, the Controller committed an error in rejecting that application on the ground of limitation. An order which does not have arty legal existence, the same having been obtained by not serving summons on the affected party cannot be permitted to be effective. In this view of the matter, we have no hesitation to hold that the Controller as well as the appellate authority committed gross illegality in not setting aside the ex parte order and in not restoring the House Rent Control proceeding.
4. We also find sufficient force in the submission of Mr. Mukherjee that under the provisions of the House Rent Control Act, an appeal lies against the order of eviction on being communicated within thirty days from the date of the communication. Since admittedly the order of eviction has not been communicated as yet, the petitioner still has the right of appeal. Taking this factor into consideration, the forums below should have set aside the ex parte order of eviction and should have restored the house rent control proceeding. They not having done so have failed to exercise their jurisdiction vested in law.
5. The third contention of Mr. Mukherjee that the finding of the Controller that the petitioner admitted to have knowledge of the execution case in September, 1993, is obviously based upon an error of record, inasmuch as nowhere in his evidence he has made such admission. Such error of record has vitiated the ultimate decision of the Controller.
6. In the premises, as aforesaid, we quash the order of the House Rent Controller dated 16-1-1985 passed in Misc. Case No. 25 of 1983 as well as the order of the appellate authority dated 11-7-1986 passed in HRC Appeal No. 10 of 1985 and we further quash the ex parte order of eviction passed by the House Rent Controller on 13-12-1987 passed in the HRC Case No. 100 of 1979 subject to the condition that the petitioner shall pay a sum of Rs. 1,000/- (one thousand) to Shri Moharana, the learned counsel appearing for opp. parties 1 and 2, within a period of three weeks from today. Failure on the part of the petitioner to pay the cost within the time as stipulated would entail dismissal of the writ application. On cost being pain in time, the HRC Case No. 100 of 1978 would revive and would be relegated to the stage as it was before 13-12-1978. The petitioner will have an opportunity of filing his written statement in the said House Rent Control proceeding within six weeks from today, but the said written statement wilt be accepted subject to the condition that the petitioner shall either deposit with the Controller or pay to the landlord-opp. party No. 1, all arrear house rent as on today before filing of the written statement. The House Rent Control proceeding thereafter will be taken up and shall be disposed of as expeditiously as possible in accordance with law by giving opportunity of hearing to the parties concerned.
This writ application is allowed on the aforesaid terms conditions. There will, however be no order as to costs.
D.M. Patnaik, J.
I agree