1. The plaintiff's suit for permanent injunction having been dismissed and the decree passed by the trial court in his favour having been reversed by the lower appellate court, this second appeal has been filed.

2. The appellant (hereinafter described as the plaintiff) asserted that the disputed house located in Nimchouri, Cuttack belonged to one Durga Prasad Bhagat, the father of respondents 1 and 2 (hereinafter described as defendants 1 and 2). Durga Prasad had let out one room from the western side to the plaintiff on a monthly rental of Rs. 8/-. After the death of Durga Prasad, defendants 1 and 2 acknowledged the plaintiff as tenant and received rent from him. Bhikari Charan Behera, defendant No. 3, took on rent from Durga Prasad the room on the eastern side and at his own cost constructed a shed. Defendants 1 and 2 instituted H.R.C Case No. 78 of 1969 against Bhikari Charan Behera for his eviction. The proceeding was in respect of the entire house (the rooms both on the eastern and western sides). Defendants 1 and 2 obtained an order for eviction of defendant No. 3 in the said proceeding and filed Execution Case No. 175 of 1971 for possession. The plaintiff asserted that he was a tenant in respect of the western side room and without a proceeding for eviction under the Orissa House Rent Control Act, 1967 and an order for his eviction passed under the provisions of the said Act, he was not liable to be evicted, and defendants 1 and 2 should be restrained by permanent injunction from executing the order of eviction obtained by them in H.R.C Case No. 78 of 1969.

3. Defendants 1 and 2 opposed the suit mainly on the ground of res judicata. Their case was that the plaintiff is the Godson of defendant No. 3, Bhikari Charan Behera. In the year 1957-1958 though the plaintiff had taken the disputed western side room on rent, he quit the same and after some time defendant No. 3 took the entire house, i.e both the eastern side and the western side rooms on rent from Durga Prasad and was paying rent to him. There was no relationship of landlord and tenant between the plaintiff and late Durga Prasad or defendants 1 and 2. When defendant No. 3 committed default in payment of rent, proceeding under the Orissa House Rent Control Act was initiated and an order for eviction was passed against him, H.R.C Appeal No. 105 of 1970 filed by defendant No. 3 was dismissed. They further averred that in respect of the disputed room, the plaintiff had filed H.R.C Case No. 152 of 1969 for fixation of fair rent alleging that he was a tenant in respect of the said room. The said case was dismissed on a finding that there was no relationship of landlord and tenant between the plaintiff and defendants 1 and 2. Against the said judgment, the plaintiff filed H.R.C Appeal No. 106 of 1970 which was sought to be withdrawn and was dismissed as not pressed. The present suit, they alleged, was filed with a view to delay the execution proceeding. The trial Judge held that the suit was not barred by res judicata and the plaintiff was the tenant under defendants 1 and 2 in respect of the disputed house. So holdings, the trial Judge granted a decree in favour of the plaintiff restraining defendants 1 and 2 from proceeding with the execution case. In appeal, the finding on the question of res judicata was reversed and it was held that the decision in the H.R.C proceeding to the effect that the plaintiff was not a tenant under defendants 1 and 2 operated as res judicata and the self-same issue was not available to be re-adjudicated in the suit. The further finding, though not expressly stated, which can be inferred from his discussions in paragraphs 9 and 10 of the judgment, is that the plaintiff was not a tenant.

4. It has been strenuously urged by Mr. Sanjit Mohanty, the learned counsel for the appellant, that the finding of the House Rent Controller in H.R.C case No. 152 of 1969 that the plaintiff was not a tenant would not operate as res judicata. His trump-card is the decision of a Full Bench of the Patna High Court in Kishun Sah v. Harinandan Prasad Sah, AIR 1963 Pat 79. Their Lordships observed as follows (at p. 80):—

“It is well settled that, unless the legislature expressly confers upon a tribunal of limited jurisdiction the exclusive power to decide facts upon which it can assume jurisdiction to do a certain act or to pass a certain type of order, it has no jurisdiction to decide those preliminary or jurisdictional facts finally. While it has necessarily to come to its own conclusions on those facts in order to exercise its jurisdiction relating to matters within its exclusive jurisdiction, its decision on those facts is liable to be challenged in the Civil Court. A tribunal of limited jurisdiction cannot have unlimited power to determine the limit and to assume jurisdiction or, in other words, it cannot usurp jurisdiction on a wrong decision relating to jurisdictional facts.”

To reach the aforesaid ratio, their Lordships referred to the observations of Lord Esher. M.R which have become locus classicus, in the Queen v. Commrs. for Special Purposes of Income-tax, (1888) 21 QBD 313, and held that a decision of the tribunal on the question of existence of the relationship of landlord and tenant belonged to the first type described by Lord Esher and the decision of the Collector as to existence of the relationship of landlord and tenant between the parties is not final and the correctness is liable to be examined by the Civil Court.

5. However, after going through various authorities cited above, and the decision of the Supreme Court in Rai Brij Raj Krishna v. S.K Shaw and Brothers, AIR 1951 SC 115, which their Lordships of the Patna High Court distinguished, I am, with respect, of the view that the ratio in Kishun Sah's case (AIR 1963 Pat 79) (FB) has no application to a case arising under the Orissa House Rent Control Act.

6. In the Queen v. Commrs. for Special Purposes of Income-tax, Lord Esher, M.R said:—

“When an inferior court or tribunal or body, which has to exercise the power of deciding facts is first established by Act of Parliament, the legislature has to consider what powers it will give to that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.”

In Rai Brij Raj Krishna case (AIR 1951 SC 115), a suit had been filed for declaration that the order of the Controller was illegal and without jurisdiction. The suit was dismissed by the trial court and the lower appellate court. But the High Court decreed the suit holding that the order of the Controller was without jurisdiction. Fazal Ali, J. after referring to the provisions in the Bihar Act, which provided that the decision of the Controller was final and not liable to be questioned in any court of law observed (at p. 117):

“The Act thus sets up a complete machinery for the investigation of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depends, and it expressly makes his order final and subject only to the decision of the Commissioner.”

and after referring to the observations of Lord Esher, M.R and the observation of Sir James Colville in Colonial Bank of Australasia v. Willan, (1874) LR 5 PC 417, to the effect:—

“Accordingly, the authorities ………… establish that an adjudication by a Judge having jurisdiction over the subject-matter is, if no defects appears on the face of it, to be taken as conclusive of the facts stated therein:”

“There can be no doubt that the present case falls within the second category mentioned by Lord Esher, because here the Act has entrusted the Controller with a jurisdiction, which includes the jurisdiction to determine whether there is non-payment of rent or not, as well as the jurisdiction, on finding that there is non-payment of rent, to order eviction of a tenant. Therefore, even if the Controller may be assumed to have wrongly decided the question of non-payment of rent, which by no means is clear, his order cannot be questioned in a civil court.”

In Addanki Tiruvenkata Thata Desika Charyulu v. State of Andhra Pradesh, AIR 1964 SC 807, the question whether an Inam village was an Inam estate, was exclusively within the jurisdiction of the Settlement Officer and the Tribunal in appeal; or the civil courts had jurisdiction to determine over again the question in controversy.

7. Under the Madras Estates (Ryotwari) Act, there is no provision in terms debarring the civil courts from entertaining suits for declaration that the estate was not an Inam estate. Section 9(4)(c) of the Madras Act provided that the decision of the tribunal was final and not liable to be questioned in any court of law and S. 9(6) declared that the decision of the tribunal and subject to such decision, every decision of the Settlement Officer shall be binding on all persons claiming any interest in any land in the village etc. Ayyangar, J. for the Five-Judge Bench, observed (at p. 816 of AIR 1964 SC):—

“The very provision setting up an hierarchy of judicial tribunals for the determination of the question on which the applicability of the Act depends, is sufficient in most cases for inferring that the jurisdiction of the Civil Courts to try the same matter is barred. In addition we have the provision in S. 9(4)(c) read with S. 9(6) to which we have adverted. In these circumstances, we have no hesitation in holding that to the extent of the question stated in Section 9(1), the jurisdiction of the Settlement Officer and of the Tribunal are exclusive and that the Civil Courts are barred from trying or re-trying the same question. We, should, however, hasten to add that this exclusion of jurisdiction would be subject to two limitations. First is the reservation made by Lord Thankerton in Secretary of State v. Mask and Co., 67 Ind App 222 at p. 236 : (AIR 1940 PC 105 at p. 110) where after holding that the provisions of the Sea Customs Act setting up a special machinery for the adjudication of the correct duty leviable under the Act barred recourse to the Civil Courts to question the correctness of the decisions of the Authorities, acting under that enactment added:

“It is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.”

In Choudhury Krishna Chandra v. Srimati Hemamani Biswal, (1970) 1 Cut WR 224 : (AIR 1971 Orissa 140), the question was if Sec. 39 of the Orissa Estates Abolition Act, 1951 ousted the jurisdiction of the civil court in regard to matters specified in the said section. It was held that the jurisdiction of the Orissa Estates Abolition Collector was of the second type, referred to by Lord Esher, M.R

8. Section 7 of the Orissa House Rent Control Act makes provision for eviction of a tenant. Section 7(1) reads as hereunder:—

“A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf.”

Denial of title of the landlord has been made a ground for eviction under S. 7(2)(iv). It is, therefore, clear that the legislature has entrusted the tribunal with jurisdiction to determine whether parties stand in the relationship of landlord and tenant and upon determination of this preliminary state of facts, to proceed further. Section 14 reads as hereunder:

“All orders passed by the Controller shall, subject to the decision, if any, made in an appeal, be final and shall not be called in question in any Court of law.”

The observations of Lord Esher, M.R and the observations of their Lordships of the Supreme Court make it clear that the decision of the Controller or of the appellate authority falls in the second category enumerated by Lord Esher, M.R and the decision of the tribunal under the Orissa House Rent Control Act is not liable to be questioned in civil courts. Section 14 expressly ousts the jurisdiction of the civil courts.

9. In Smt. Dei v. Bidyadhar Pradhan (1971) 37 Cut LT 456, a Division Bench of this Court observed:—

“Law is well settled that an authority or a Court of limited jurisdiction has the power to determine its initial jurisdiction. If it comes to the conclusion that there is such relationship, it can proceed to decide whether grounds for eviction exist. If, on the other hand, it determines that there is no relationship of landlord and tenant then it will stay its hand from examining the grounds of eviction. The decision of a Court of limited jurisdiction as to the existence of that relationship can however, be challenged in a civil court unless the civil court's jurisdiction is either expressly or impliedly barred by the special statute itself.”

(Emphasis added).

This decision relied upon by the counsel for the appellant does not lend any assistance, because S. 14 of the Orissa House-Rent Control Act expressly forbids exercise of jurisdiction by the civil courts.

10. Reliance has also been placed by Mr. Mohanty on Smt. Gangabai v. Smt. Chhabubai, AIR 1982 SC 20. The Supreme Court held therein that a finding as to title to immovable property rendered by a Court of Small Causes does not operate as res judicata in a subsequent regular suit for the determination or enforcement of any right or interest in immovable property. The reason for the said view being (para 9):—

“A question of title in a Small Cause suit can be regarded as incidental only to the substantial issue in the suit and cannot operate as res judicata in a subsequent suit in which the question of title is directly raised.”

This decision, in my humble opinion, is distinguishable. A question of relationship of landlord and tenant in a proceeding under the Orissa House Rent Control Act is not incidental to any substantial issue. That question has to be confronted at a threshold as preliminary state of facts, upon determination of which the further questions would hinge. The finding on the said question, though jurisdictional, is final. Having regard to the purpose of the statute, the general scheme and especially S. 14 of the Act, it is clear that the legislature has given the Controller the jurisdiction to determine all the facts, including the existence of preliminary facts on which the further exercise of that jurisdiction depends and there is no appeal from that decision to the civil court.

11. I am, therefore, of the opinion that the finding in the House Rent Control proceeding that there was no relationship of landlord and tenant between the plaintiff and defendants 1 and 2 operated as res judicata and the said finding was not available to be re-adjudicated in the civil court. The suit was, therefore, not maintainable and has been rightly dismissed.

12. In the result, the appeal has no merit and is dismissed with costs.

Appeal dismissed.