BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/02/2009 CORAM THE HONOURABLE MR.JUSTICE N. PAUL VASANTHAKUMAR C.R.P.(NPD)(MD)No.1090 of 2007 M.P.(MD)No.1 of 2007 K.I.M.Sajjdeen ... Petitioner Vs. A.1254, Theni Co-Operative Sale Society Limited, Theni, rep.by its Special Officer/ Deputy Registrar ... Respondent This Civil Revision Petition is filed under Section 227 of the Constitution of India, against the order dated 5.6.2007 in E.P.No.231 of 2006 in R.C.O.P.No.13 of 2001 on the file of the District Munsif Court, Theni. !For Petitioner ... Mr.M.Ajmal Khan ^For Respondent ... Mr.S.Seenivasagam :ORDER
This civil revision petition is filed under Article 227 of the
Constitution of India, challenging the order of arrest made in E.P.No.231 of
2006 in R.C.O.P.No.13 of 2001 on the file of the Rent Controller (District
Munsif Court), Theni.
2. The respondent herein filed R.C.O.P.No.13 of 2001 before the Rent
Controller (District Munsif Court), Periyakulam, under Sections.10(2)(i) and
10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960,
contending that the petitioner herein committed wilful default in payment of
rent to the building viz., two rooms bearing Door No.641 and 656, for which rent
was agreed to be paid at the rate of Rs.150/- and Rs.500/- per month
respectively, and also on the ground that the petitioner had sub-let a portion
of the stalls to some third parties.
3. The revision petitioner, though resisted the said eviction petition,
the Rent Controller, by order dated 18.9.2003, ordered eviction on the ground of
wilful default. Insofar as the ground of sub-letting is concerned, the eviction
petition was rejected. The revision petitioner vacated the premises and handed
over vacant possession of the rental premises to the respondent, pursuant to the
order passed in E.P.No.35 of 2004 and delivery of possession was recorded on
5.3.2005 through the Court Amin.
4. In the eviction petition, in addition to the prayer for eviction on
the above two grounds, the respondent herein sought for a direction to the
petitioner herein to pay all the arrears of rent to the respondent herein. The
eviction petition having been allowed with a direction to pay the rental arrears
within three months, the respondent herein filed E.P.No.231 of 2006 and prayed
for execution of the decree insofar as the non-compliance of the order directing
payment of arrears of rent.
5. The said execution petition was resisted by the petitioner/tenant by
filing counter affidavit contending that the direction issued to pay the arrears
of rent by the Rent Control Court is without jurisdiction and no amount was
quantified and therefore the respondent cannot file execution petition for
realisation of the amount of Rs.34,750/-. It is also stated in the counter
affidavit that the execution petition filed as such is not maintainable.
6. The learned Rent Controller rejected the contention raised in the
counter affidavit and ordered arrest of the petitioner/tenant by 6.7.2007 under
Order XXI Rule 37 CPC. The said order is challenged in this revision petition
on the ground that the Rent Control Court, constituted under the Tamil Nadu
Buildings (Lease and Rent Control) Act, 1960, has no jurisdiction to give
direction to pay the arrears of rent and the prayer made by the respondent in
the eviction petition for a direction to pay the arrears of rent while ordering
eviction for wilful default in payment of rent is unsustainable.
7. The learned counsel for the revision petitioner submitted that the
Rent Control Court has no jurisdiction to order payment of arrears of rent and
hence the decree passed for paying the arrears of rent while ordering eviction
is a nullity and the said plea was raised in the execution proceedings before
the Rent Controller, which was not properly considered and therefore this
revision petition is filed on the plea that nullity of the decree, which is
incapable of execution, can be challenged in any proceeding. According to the
learned counsel, the same is challenged in this revision petition under the
supervisory jurisdiction of this Court under Article 227 of the Constitution of
India. The learned counsel also submitted that as per the explanation to
Section 22 of the Tamil Nadu Court Fees and Suit Valuation Act, 1955, the claim
being realisation of money, the respondent has to file civil suit by paying
Court fee and shall obtain a decree and in this case, no money suit is filed
before the Civil Court for recovery of money/rental arrears. Hence the learned
counsel contended that the Rent Controller has no jurisdiction to order arrest
of the petitioner for realisation of the arrears of rent.
8. The learned counsel for the respondent on the other hand submitted
that the respondent having filed R.C.O.P.No.13 of 2001 with a specific prayer
for consequential direction to the petitioner/tenant in the eviction petition,
to pay all the arrears of rent and the said petition having been allowed, there
is a valid decree obtained by the respondent for the arrears of rent and the
petitioner having not filed any appeal against the said portion of the decree
and the decree having become final, the respondent is entitled to file execution
petition to implement that portion of the decree as the said decree has become
final and binding and therefore there is no illegality in the order passed by
the Executing Court viz., the Rent Controller and the same cannot be interfered
with in this revision petition.
9. I have considered the rival submissions made by the learned counsel
for the petitioner as well as the respondent.
10. From the above narrated pleadings and arguments the following issues
arise for consideration:
(1) Whether the Rent Controller is vested with the jurisdiction to order payment
of arrears of rent after ordering eviction ?
(2) Whether the Rent Controller is bound to consider the plea of nullity of
decree in the execution proceedings ?
Issue No.1 – Whether the Rent Controller is vested with the jurisdiction to
order payment of arrears of rent after ordering eviction ?
11. The respondent herein filed R.C.O.P.No.13 of 2001 on two grounds
viz., under Sections 10(2)(i) and 10(2)(ii)(a) of the Tamil Nadu Buildings
(Lease and Rent Control) Act, 1960. The said two grounds urged in the eviction
petition are on the ground of wilful default in payment of rent. The said
provisions are extracted hereunder:
“Sec.10. Eviction of tenants.-
(1) …………
(2) A landlord who seeks to evict his tenant shall apply to the
Controller for a direction in that behalf. If the Controller, after giving the
tenant a reasonable opportunity of showing cause against the application, is
satisfied-
(i) that the tenant has not paid or tendered the rent due by him in
respect of the building, within fifteen days after the expiry of the time fixed
in the agreement of tenancy with his landlord or in the absence of any such
agreement, by the last day of the month next following that for which the rent
is payable, or
(ii) that the tenant has after the 23rd October, 1945 without the written
consent of the landlord-
(a) transferred his right under the lease or sub-let the entire building
or any portion thereof, if the lease does not confer on him any right to do so,
or
……………..”
From the perusal of the above statutory provisions it is clear that non-payment
of rent i.e, wilful default, sub-letting are grounds for filing the eviction
petition and if the said grounds are established, the Rent Controller is
empowered to order eviction of the tenant. Nowhere in the said sections, the
Landlord is given the right to demand arrears of rent in the eviction petition.
In proviso to Section 10 it is stated that if the default in payment of rent is
not wilful, he may notwithstanding anything contained in Section 11, give the
tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent
due by the tenant and if the same is complied with, he shall reject the
application seeking eviction.
12. The power of the Rent Controller to order deposit of the rent is
again provided under Section 11 of the Act, which reads as follows:
“Sec.11. Payment or deposit of rent during the pendency of proceedings
for eviction.-
(1) No tenant against whom an application for eviction has been made by
a landlord under Section 10 shall be entitled to contest the application before
the Controller under that Section, or to prefer any appeal under Section 23
against any order made by the Controller on the application, unless he has paid
or pays to the landlord, or deposits with the Controller or the Appellate
Authority, as the case may be, all arrears of rent due in respect of the
building up to the date of payment or deposits, and continues to pay or to
deposit any rent which may subsequently become due in respect of the building
until the termination of the proceedings before the Controller or the Appellate
Authority, as the case may be.
(2) The deposit of rent under sub-section (1) shall be made within the
time and in the manner prescribed.
(3) Where there is any dispute as to the amount of rent to be paid or
deposited under sub-section (1) the Controller or the Appellate Authority, as
the case may be, shall, on application made to him either by the tenant or by
the landlord, and after making such inquiry as he deems necessary, determine
summarily the rent to be so paid or deposited.
(4) If any tenant fails to pay or to deposit the rent as aforesaid, the
Controller or the Appellate Authority, as the case may be, shall, unless the
tenant shows sufficient cause to the contrary, stop all further proceedings and
made an order directing the tenant to put the landlord in possession of the
building.
(5) The amount deposited under sub-section (1) may, subject to such
conditions as may be prescribed, be withdrawn by the landlord on application
made by him in that behalf to the Controller or the Appellate Authority, as the
case may be.”
Section 9 of the Act empowers the tenant to deposit the rent in the Court in
certain circumstances viz., when the address of the landlord or his authorised
agent is not known to the tenant. The tenant may deposit the rent before the
Controller unless and until the address of the landlord or his authorised agent
becomes known to the tenant. Section 8(5) of the Act also enables the tenant to
deposit the rent before the Controller after following the mandatory procedures
contemplated under Sections 8(2)(3) & (4).
13. Under the above provisions, a tenant can deposit the rents if the
landlord refuses to receive the same. Nowhere in the Rent Control Act, the Rent
Controller is given power to give a direction to pay the arrears of rent while
ordering eviction. Only for the continuance of the Rent Control proceeding or
on filing appeal, the tenant may be directed to deposit the rent in the Court.
14. The learned counsel for the petitioner is right in his submission
that if the arrears of rent is to be collected by the landlord and if it is
refused to be paid by the tenant, the only remedy available is to file the money
suit. The term ‘money suit’ or ‘suit for money’ is explained under Section 22
of the Tamil Nadu Court Fees and Suit Valuation Act, 1955, which reads as
follows:
“Section 22. Suits for money.- In a suit for money (including a suit for
damages or compensation, or arrears of maintenance, of annuities, or of other
sums payable periodically), fee shall be computed on the amount claimed.
Explanation.- For the purposes of this section, the expression “suit for
money” shall in respect of the transferred territory, also include suits for
rents, pattam, michavaram, adukkuvathu, janmikaram, or other dues of a like
nature.”
From the reading of Section 22, it is evident that a suit for recovery of the
rent is also a money suit. Admittedly the respondent has not filed any suit for
recovery of the arrears of rent/money before the competent civil Court. The
Rent Controller is a statutory authority created under the Act, discharges his
duties in a different capacity than the civil court. Further, the respondent
has not quantified the arrears of rent and no court fee is also paid for
realisation of the alleged rental due of Rs.34,750/-.
15. The Rent Controller is given jurisdiction to deal with eviction
matters and also to fix the fair rent under the Act. The Rent Controller is an
authority conferred with the powers under the Act. The Tenant is a statutory
tenant as per the Act. When the Rent Controller is getting powers under the
statutory enactment, he has to exercise his powers within the four corners of
that statute and not beyond that. Since no power is vested with the Rent
Controller to pass a decree for payment of arrears of rent under the Act, the
decree passed by the Rent Controller ordering payment of arrears of rent within
three months while ordering eviction is a statutory violation. Therefore, the
decree passed directing payment of arrears of rent is a nullity. It is a well
settled proposition of law that a statutory authority can perform his statutory
functions only within the statute. In the decision reported in (1974) 1 SCC 242
(Nagindas Ramdas v. Dalpatram Ichharam), the Honourable Supreme Court held that
the Rent Controller can pass orders only in accordance with the statute.
Paragraphs 15 to 17 of the decision read as follows:
“15. All these three Acts lay down specific grounds more or less similar,
on which a decree or order of eviction can be passed by the Rent Court or the
Tribunal exercising exclusive jurisdiction. In the Delhi Rent Act, such grounds
are specified in a consolidated form under Section 13, while the same thing has
been split up into two and provided in two Sections (12 and 13) in the Bombay
Rent Act which represent the negative and positive parts of the same pattern.
Taken together, they are exhaustive of the grounds on which the Rent Court is
competent to pass a decree of possession. Similarly, in the Madras Rent Act, the
grounds on which a tenant can be evicted, are given in Sections 10, 14 to 16.
16. Section 13 of the Delhi Rent Act starts with a non obstante clause
viz. “Notwithstanding anything to the contrary contained in any other law or any
contract, no decree or order for the recovery of possession of any premises
shall be passed by any Court in favour of the landlord against any tenant….”
Likewise, Section 10(1) of the Madras Rent Act starts with the clause, “a tenant
shall not be evicted whether in execution of a decree or otherwise except in
accordance with the provisions of this Section or Sections 14 to 16”.
17. It will thus be seen that the Delhi Rent Act and the Madras Rent Act
expressly forbid the Rent Court or the Tribunal from passing a decree or order
of eviction on a ground which is not any of the grounds mentioned in the
relevant Sections of those statutes. Nevertheless, such a prohibitory mandate to
the Rent Court that it shall not travel beyond the statutory grounds mentioned
in Sections 12 and 13, and to the parties that they shall not contract out of
those statutory grounds, is inherent in the public policy built into the statute
(Bombay Rent Act).”
16. The word “controller” is defined under Section 2(3) of the Tamil
Nadu Buildings (Lease and Rent Control) Act, 1960, as follows:
Sec.2(3) “Controller” means any person appointed by the Government, by
notification, to exercise the powers of a controller under this Act for such
area as may be specified in the notification.”
It is evident that even though a Civil Judge is appointed by the Government by
notification as Rent Controller, he is only a designated authority under the
Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, i.e. persona designata.
17. Thus, the learned counsel for the petitioner is right in contending
that the Rent Controller has no jurisdiction to give direction to pay the
arrears of rent after ordering eviction on the ground of wilful default. The
objection raised before the learned Rent Controller on the ground that the order
passed in R.C.O.P.No.13 of 2001 has become final, cannot be sustained in view of
the fact that the Rent Controller has no jurisdiction to pass a decree directing
payment of arrears of rent to the landlord after ordering eviction.
Issue No.2 – Whether the Rent Controller is bound to consider the plea of
nullity of decree in the execution proceedings ?
18. The executability of the decree, which is non-est is considered by
the Honourable Supreme Court in very many decisions.
(a) In AIR 1954 SC 340 (Kiran Singh v. Chaman Paswan) in paragraph 6 the
Honourable Supreme Court held thus:
“6. …… It is a fundamental principle well-established that a decree
passed by a Court without jurisdiction is a nullity and that its invalidity
could be set up whenever and wherever it is sought to be enforced or relied
upon, even at the stage of execution and even in collateral proceedings. A
defect of jurisdiction whether it is pecuniary or territorial, or whether, it is
in respect of the subject-matter of the action, strikes at the very authority of
the Court to pass any decree, and such a defect cannot be cured even by consent
of parties. ……..”
(b) In AIR 1962 SC 199 (Hira Lal v. Kali Nath) in paragraph 4 the
Supreme Court held as follows:
“4. …….. The validity of a decree can be challenged in execution
proceedings only on the ground that the court which passed the decree was
lacking in inherent jurisdiction in the sense that it would not have seizin of
the case because the subject matter was wholly foreign to its jurisdiction or
that the defendant was dead at the time the suit had been instituted or decree
passed, or some such other ground which could have the effect of rendering the
court entirely lacking in jurisdiction in respect of the subject matter of the
suit or over the parties to it. ……”
(c) In AIR 1970 SC 1475 (V.D.Modi v. R.A.Rehman), in paragraph 7 it is
held thus,
“7. When a decree which is a nullity, for instance, where it is passed
without bringing the legal representatives on the record of a person who was
dead at the date of the decree, or against a ruling prince without a
certificate, is sought to be executed an objection in that behalf may be raised
in a proceeding for execution. Again, when the decree is made by a Court which
has no inherent jurisdiction to make it, objection as to its validity may be
raised in an execution proceeding if the objection appears on the face of the
record ………”
(d) In (1977) 2 SCC 662 (Sunder Dass v. Ram Prakash) in paragraph 3, the
Supreme Court held as follows:
“3. Now, the law is well settled that an executing court cannot go behind
the decree nor can it question its legality or correctness. But there is one
exception to this general rule and that is that where the decree sought to be
executed is a nullity for lack of inherent jurisdiction in the court passing it,
its invalidity can be set up in an execution proceeding. Where there is lack of
inherent jurisdiction, it goes to the root of the competence of the court to try
the case and a decree which is a nullity is void and can be declared to be void
by any court in which it is presented. Its nullity can be set up whenever and
wherever it is sought to be enforced or relied upon and even at the stage of
execution or even in collateral proceedings. The executing court can, therefore,
entertain an objection that the decree is a nullity and can refuse to execute
the decree. By doing so, the executing court would not incur the reproach that
it is going behind the decree, because the decree being null and void, there
would really be no decree at all. Vide Kiran Singh v. Chaman Paswan (AIR 1954 SC
340) and Seth Hiralal Patni v. Sri Kali Nath (AIR 1962 SC 199). It is,
therefore, obvious that in the present case, it was competent to the executing
court to examine whether the decree for eviction was a nullity on the ground
that the civil court had no inherent jurisdiction to entertain the suit in which
the decree for eviction was passed. If the decree for eviction was a nullity,
the executing court could declare it to be such and decline to execute it
against the respondent.”
(e) In (1990) 1 SCC 193 (Sushil Kumar Mehta v. Gobind Ram Bohra) in
paragraphs 5 to 9 the Supreme Court held as follows:
“5. ……….It is the finding of the forums below that the shop in
question stands mainly on the land of the landlord and a small portion is
located on municipal land. Therefore, we are of the view that the building was
governed by the provisions of the Act and the exemption accorded by the
government under Section 3 was not attracted to the premises. In Sadhu Singh v.
District Board, Gurdaspur (AIR 1962 Punj 204) the question was whether to the
reconstructed building governed by the provisions of East Punjab Urban Rent
Restriction Act the exemption under Section 3 applied. It was held to be so by
the Division Bench. But the present facts are different.
6. In Barraclough v. Brown (1897 AC 615: 66 LJ QB 672: 13 TLR 527) the
House of Lords held that when a special statute gave a right and also provided a
forum for adjudication of rights, remedy has to be sought only under the
provisions of that Act and the common law court has no jurisdiction.
7. In Doe d. Rochester (BP.) v. Bridges ((1831) 1 B&Ad 847, 859: 109 ER
1001) the famous and oft quoted words of Lord Tenterdan, occur:
“Where an Act creates an obligation and enforces the performance in a specified
manner, we take it to be a general rule that performance cannot be enforced in
any other manner.”
8. This statement of law was approved not only by the House of Lords in
several cases, but also by this Court in Premier Automobiles Ltd. v. K.S. Wadke
((1976) 1 SCC 496) where this Court was called upon to consider whether the
civil court can decide a dispute squarely coming within the provisions of the
Industrial Disputes Act. While considering that question, this Court laid down
four propositions and third of them is relevant for consideration here. It is as
follows: (SCC pp. 513-14, para 23)
“(3) If the industrial dispute relates to the enforcement of a right or an
obligation created under the Act, then the only remedy available to the suitor
is to get an adjudication under the Act.”
9. Thus on construction of relevant provisions of the Act and in the light
of the position in law it must be held that the provisions of Section 13 of the
Act apply to the building leased out to the appellant by the landlord and the
Controller was the competent authority to pass a decree of ejectment against the
appellant and the civil court lacked inherent jurisdiction to take cognizance of
the cause and to pass a decree of ejectment therein. …….”
(f) The question arose as to whether after enactment of the Tamil Nadu
Buildings (Lease and Rent Control) Act, 1960, a civil Court can order eviction
in the building located in the notified area, came up for consideration before
the Honourable Supreme Court in the decision reported in JT 1991 (2) SC 397 :
(1991) 3 SCC 230 (M/s.East India Corporation Ltd. v. Shree Meenakshi Mills Ltd.)
wherein in paragraphs 7 and 10 it is held thus,
“7. Section 10 of the Act, as seen above, prohibits eviction of a tenant
whether in execution of a decree or otherwise except in accordance with the
provisions of that section or Sections 14 to 16. These provisions as well as the
other provisions of the Act are a self-contained code, regulating the
relationship of parties, creating special rights and liabilities, and, providing
for determination of such rights and liabilities by tribunals constituted under
the statute and whose orders are endowed with finality. The remedies provided by
the statute in such matters are adequate and complete. Although the statute
contains no express bar of jurisdiction of the civil court, except for eviction
of tenants “in execution or otherwise”, the provisions of the statute are clear
and complete in regard to the finality of the orders passed by the special
tribunals set up under it, and their competence to administer the same remedy as
the civil courts render in civil suits. Such tribunals having been so
constituted as to act in conformity with the fundamental principles of judicial
procedure, the clear and explicit intendment of the legislature is that all
questions relating to the special rights and liabilities created by the statute
should be decided by the tribunals constituted under it. Although the
jurisdiction of the civil court is not expressly barred, the provisions of the
statute explicitly show that, subject to the extraordinary powers of the High
Court and this Court, such jurisdiction is impliedly barred, except to the
limited extent specially provided by the statute. See in this connection the
principle stated by this Court in Dhulabhai v. State of M.P. ((1968) 3 SCR 662).
See also Secretary of State v. Mask & Co. ((1939-40) IA 222 (PC), Raleigh
Investment Co. Ltd. v. Governor General in Council ((1946-47) IA 50 (PC) and
Barraclough v. Brown ((1897) AC 615 (HL)).
8. ……………..
9. ……………..
10. Significantly, the jurisdiction of the civil court can be invoked
only where the Controller comes to a decision, and records a finding, that the
denial or claim by the tenant, as aforesaid, is bona fide. If the Controller
were to come to the opposite conclusion, no question of invoking the
jurisdiction of the civil court would arise. But the decision of the Controller
is concerned solely with the bona fides, and not the correctness or validity, of
the denial or claim, for these difficult questions of title are by the statute
reserved for decision by the appropriate civil court which is the more competent
forum in such matters. ……….”
(Emphasis Supplied)
(g) In (1993) 2 SCC 507 (Chiranjilal Shrilal Goenka v. Jasjit Singh and
Others) in paragraph 20, the Supreme Court held thus,
“20. ………….. the probate court has been conferred with exclusive
jurisdiction to grant probate of the will of the deceased annexed to the
petition (suit); on grant or refusal thereof, it has to preserve the original
will produced before it. The grant of probate is final subject to appeal, if
any, or revocation if made in terms of the provisions of the Succession Act. It
is a judgment in rem and conclusive and binds not only the parties but also the
entire world. The award deprives the parties of statutory right of appeal
provided under Section 299. Thus the necessary conclusion is that the probate
court alone has exclusive jurisdiction and the civil court on original side or
the arbitrator does not get jurisdiction, even if consented to by the parties,
to adjudicate upon the proof or validity of the will propounded by the
executrix, the applicant. ……..”
(h) The nullity of the decree is further explained in the decision
reported in (1993) 2 SCC 458 (Hiralal Moolchand Doshi v. Barot Raman Lal
Ranchhoddas). In paragraph 8 the Supreme Court held as follows:
“8. It may be noticed that we are dealing with the question of nullity of
a decree because the executing court is bound to execute the decree and cannot
go behind the same unless the decree passed by it is a nullity. It appears,
there is a lot of confusion as to what is meant by “decree being null and void”.
In the context which we are dealing, a decree is said to be a nullity if it is
passed by a court having no inherent jurisdiction. Merely because a court
erroneously passes a decree or there is an error while passing the decree, the
decree cannot be called a nullity. The decree to be called a nullity is to be
understood in the sense that it is ultra vires the powers of the court passing
the decree and not merely voidable decree.”
(i) Whether the decree which is a nullity can be challenged even at the
execution stage, came up for consideration before the Honourable Supreme Court
in the decision reported in (1994) 4 SCC 370 (Jaipur Development Authority v.
Radhey Shyam and Others). In paragraphs 8 the Honourable Supreme Court held as
follows:
“8. The question then is, whether it is open to the appellant to raise the
objections on the execution side as to allotment of acquired land under the
award. We have already said that what is executable is only an award under
Section 26(2), namely, the amount awarded or the claims of the interests
determined of the respective persons in the acquired lands. Therefore, the
decree cannot incorporate any matter other than the matters determined under
Section 11 or those referred to and determined under Section 18 and no other.
Since we have already held that the Land Acquisition Officer has no power or
jurisdiction to allot land in lieu of compensation, the decree even, if any,
under Section 18 to the extent of any recognition of the directions in the award
for the allotment of the land given under Section 11 is a nullity. It is open to
the appellant to raise the invalidity, nullity of the decree in execution in
that behalf. Accordingly we hold that the execution proceedings directing
delivery of possession of the land as contained in the award is, invalid, void
and inexecutable. Accordingly it is set aside.”
(j) In the decision reported in (1996) 3 SCC 301 (Sabitri Dei and Others
v. Sarat Chandra Rout and Others), it is held that the objection regarding
invalidity of the decree sought to be executed can be raised at the execution
stage or in collateral proceedings. In paragraph 6 it is held thus,
“6. ………. Once a decree is held to be a nullity, the principle of
constructive res judicata will have no application and its invalidity can be set
up whenever it is sought to be enforced or is acted upon as a foundation for a
right even at the stage of execution or in any collateral proceeding. This
question no longer remains res integra and has been so held in the case of
Sushil Kumar Mehta v. Gobind Ram Bohra to which one of us (brother Ramaswamy,
J.) was a member. It has been held in the aforesaid case:
“Thus it is settled law that normally a decree passed by a court of competent
jurisdiction, after adjudication on merits of the rights of the parties,
operates as res judicata in a subsequent suit or proceedings and binds the
parties or the persons claiming right, title or interest from the parties. Its
validity should be assailed only in an appeal or revision as the case may be. In
subsequent proceedings its validity cannot be questioned. A decree passed by a
court without jurisdiction over the subject-matter or on other grounds which
goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction.
It is a coram non judice. A decree passed by such a court is a nullity and is
non est. Its invalidity can be set up whenever it is sought to be enforced or is
acted upon as a foundation for a right, even at the stage of execution or in
collateral proceedings. The defect of jurisdiction strikes at the authority of
the court to pass a decree which cannot be cured by consent or waiver of the
party. If the court has jurisdiction but there is defect in its exercise which
does not go to the root of its authority, such a defect like pecuniary or
territorial could be waived by the party. They could be corrected by way of
appropriate plea at its inception or in appellate or revisional forums, provided
law permits. The doctrine of res judicata under Section 11 CPC is founded on
public policy. An issue of fact or law or mixed question of fact and law, which
are in issue in an earlier suit or might and ought to be raised between the same
parties or persons claiming under them and was adjudicated or allowed
uncontested becomes final and binds the parties or persons claiming under them.
Thus the decision of a competent court over the matter in issue may operate as
res judicata in subsequent suit or proceedings or in other proceedings between
the same parties and those claiming under them. But the question relating to the
interpretation of a statute touching the jurisdiction of a court unrelated to
questions of fact or law or mixed questions does not operate as res judicata
even between the parties or persons claiming under them. The reason is obvious;
a pure question of law unrelated to facts which are the basis or foundation of a
right, cannot be deemed to be a matter in issue. The principle of res judicata
is a facet of procedure but not of substantive law. The decision on an issue of
law founded on fact in issue would operate as res judicata. But when the law has
since the earlier decision been altered by a competent authority or when the
earlier decision declares a transaction to be valid despite prohibition by law
it does not operate as res judicata. Thus a question of jurisdiction of a court
or of a procedure or a pure question of law unrelated to the right of the
parties founded purely on question of fact in the previous suit, is not res
judicata in the subsequent suit. A question relating to jurisdiction of a court
or interpretation of provisions of a statute cannot be deemed to have been
finally determined by an erroneous decision of a court. Therefore, the doctrine
of res judicata does not apply to a case of decree of nullity. If the court
inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain
statutory rights in a welfare legislation are created, the doctrine of waiver
also does not apply to a case of decree where the court inherently lacks
jurisdiction.”
(k) An illegal decree cannot be executed. What kinds of decrees are
executable, came up for consideration before the Honourable Supreme Court in the
decision reported in (2004) 1 SCC 287 (Rafique Bibi v. Sayed Waliuddin), wherein
in paragraph 8 it is held thus,
“8. A distinction exists between a decree passed by a court having no
jurisdiction and consequently being a nullity and not executable and a decree of
the court which is merely illegal or not passed in accordance with the procedure
laid down by law. A decree suffering from illegality or irregularity of
procedure, cannot be termed inexecutable by the executing court; the remedy of a
person aggrieved by such a decree is to have it set aside in a duly constituted
legal proceedings or by a superior court failing which he must obey the command
of the decree. A decree passed by a court of competent jurisdiction cannot be
denuded of its efficacy by any collateral attack or in incidental proceedings.”
(l) In AIR 2007 SC 1155 : (2007) 2 SCC 481 (National Institute of
Technology v. Niraj Kumar Singh) in paragraph 23 (in AIR) the Supreme Court held
thus,
“23. ……………. It is well known that where an order is passed by
an authority which lacks inherent jurisdiction, the principles of res judicata
would not apply, the same being a nullity. (See Chief Justice of A.P. v. L.V.A.
Dixitulu, (1979) 2 SCC 34 and Union of India v. Pramod Gupta, (2005) 12 SCC
1).”
(m) A Division Bench of this Court in the decision reported in (2008) 4
MLJ 495 (Sivakalai Muthu v. State of T.N.) held that after constitution of the
administrative Tribunal, the decree passed by the Civil Court altering the date
of birth of a Government Servant is a nullity as the jurisdiction of the Civil
Court is ousted under section 28 of the Administrative Tribunals Act, 1985, with
effect from 5.12.1988.
(n) In the Division Bench decision reported in 1993 WLR 534 (Little
Flower Teacher Training Institutes for Men and Women, etc. v. The State of Tamil
Nadu & three others) a question arose as to whether the Civil Court can give a
direction to grant recognition to the Teacher Training Institution, when the
said power is given to the Government/Department. In paragraphs 3 and 4, this
Court held as follows:
“3. The decree as such is a nullity. The civil Court has no
jurisdiction to decide the question of grant of recognition. The civil court
should have stopped with considering status of the petitioner-institution and
giving a declaration to that effect. It should not have proceeded to consider
the question of granting recognition. It is for the authorities to decide the
same, if at all the Civil Court could only have issued a mandatory injunction
directing the authorities to consider the question and pass appropriate orders
on the application of the petitioner for recognition. The principle has been
laid down by the Supreme Court in several cases. Suffice it refer to one of
them M/s.Chingleput Bottlers v. M/s.Majestic Bottling Co. (AIR 1954 SC 1030).
4. As the decree of the civil court is a nullity it cannot be enforced
in any forum. The respondents are entitled to set up the nullity of the decree
at any stage and in any proceeding (Vide Kiran Singh v. Chaman Paswan, AIR 1954
SC 340). We have already considered this question and taken this view in the
Writ Petition No.6289 of 1990 by our order dated 30.3.1993.”
(Emphasis supplied)
19. From the above referred decisions it is abundantly clear that if a
decree passed by the Court is wholly without jurisdiction, the same is to be
treated as nullity and the said decree is not executable. The said plea even
though was raised before the Rent Controller, it was not considered by him and
arrest of the petitioner was ordered. Hence the petitioner is justified in
filing this revision petition under Article 227 of the Constitution of India
invoking the supervisory jurisdiction of this Court.
20. The supervisory jurisdiction of the High Court under Article 227 of
the Constitution of India is explained by the Supreme Court in the decision
reported in (2003) 3 MLJ 60 (SC) : (2003) 6 SCC 675 (Surya Dev Rai v. Ram
Chander Rai). In paragraph 21 (para 22 in SCC), the Supreme Court held as
follows:
“21. Article 227 of the Constitution confers on every High Court the power
of superintendence over all courts and tribunals throughout the territories in
relation to which it exercises jurisdiction excepting any court or tribunal
constituted by or under any law relating to the armed forces. Without prejudice
to the generality of such power the High Court has been conferred with certain
specific powers by clauses (2) and (3) of Article 227 with which we are not
concerned hereat. It is well settled that the power of superintendence so
conferred on the High Court is administrative as well as judicial, and is
capable of being invoked at the instance of any person aggrieved or may even be
exercised suo motu. The paramount consideration behind vesting such wide power
of superintendence in the High Court is paving the path of justice and removing
any obstacles therein. The power under Article 227 is wider than the one
conferred on the High Court by Article 226 in the sense that the power of
superintendence is not subject to those technicalities of procedure or
traditional fetters which are to be found in certiorari jurisdiction. Else the
parameters invoking the exercise of power are almost similar.”
21. Applying the above law laid down by the Honourable Supreme Court and
having regard to the supervisory jurisdiction of this Court, I hold that the
order passed by the learned Rent Controller, ordering payment of arrears of rent
within three months while ordering eviction on the ground of wilful default, is
unsustainable and the consequential execution petition filed to execute that
portion of the decree is also not maintainable. The ultimate order of arrest
passed in the execution proceeding against the petitioner cannot be sustained
and the same is set aside.
22. The civil revision petition is allowed. It is open to the
respondent to file separate suit for recovery of the rental arrears in
accordance with law, if the respondent is advised to do so. No costs.
Connected miscellaneous petition is closed.
vr
To
The District Munsif, Theni.