JUDGMENT
Pinaki Chandra Ghose, J.
1. This appeal is directed against an order passed by His Lordship Sujit Kumar Sinha, J on 25th February, 1997 whereby His Lordship held that the decree passed by the Hon’ble Court on 5th September, 1985 is a nullity.
2. Facts of the case briefly are as follows:
Appellants instituted a suit against the respondent No. 1 in the Alipore Court in or about July, 1985 inter alia praying for recovery of has possession of the suit premises and for mesne profit from 1st July, 1985 till delivery of possession of the suit premises. The said suit was transferred to this Hon’ble Court and was renumbered as Extra ordinary Suit No. 8 of 1985. In the said suit on 26th August, 1985 on an application of the appellants herein the Hon’ble Court appointed a Receiver in respect of the suit premises. On 5th September, 1985 an application under Chapter XIIIA of the Original Side Rules of this Court was filed by the appellants and a final Judgment and decree was passed. The operative portions of the said decree are as follows:
It is ordered and decreed that the respondent do deliver up to the plaintiffs khas and/or vacant, quiet and peaceful possession of the demised premises (particulars whereof are set out in the schedule hereunder written and hereinafter collectively referred to as ‘the demised premises’). And it is further ordered and decreed that there shall be a decree for eviction and/or ejectment in favour of the plaintiffs in respect of the said demised premises. And it is further ordered and decreed that the Receiver appointed herein in pursuance to the order dated the twenty-sixth day of August, one thousand nine hundred and eighty-five shall continue to act as such Receiver of the said demised premises with all the powers as provided under the said order dated the twenty-sixth day of August, one thousand nine hundred eighty-five. And it is further ordered and decreed that the said Receiver shall and do obtain the vacant possession of the said demised premises and shall and do make over the same to the plaintiffs. And it is further ordered and decreed that after making over such vacant possession to the plaintiffs as aforesaid the said Receiver shall stand discharged from further acting as such Receiver.
3. Thereafter, learned Receiver went to the suit premises to execute the decree, but he was resisted by the Refugee Handicrafts which claimed to be a sub-tenant in respect of the suit premises. It also appears from the records that the said Refugee Handicrafts was a sub-lessee in respect of the said premises, but on 30th June, 1985 the said sub-lease had expired and thereafter the appellants filed an application under Order 21 Rule 97 of the Code of Civil Procedure (hereinafter referred to as the CPC) inter alia for removal of obstruction to the execution of the said decree and for an order directing the Refugee Handicrafts to put the Receiver in vacant possession of the suit premises. The said Refugee Handicrafts filed an application inter alia for setting aside of the said decree. Both the applications were disposed of on 11th September, 1986 by a common judgement, but two separate orders were passed. By an order, the appellants’ application was allowed and the Refugee Handicrafts were allowed to take the vacant possession of the said premises (appearing at page 43, being Annexure “D” of the Paper Book) and by the order, the application of Refugee Handicrafts was dismissed (Annexure “E” at page 49 of the Paper Book). Thereafter, Refugee Handicrafts preferred an appeal and the appeal being No. 911 of 1987 against the said Judgment and order dated 11th September, 1986.
4. On 5th January, 1988, the operation of the said order dated 11th September, 1986 was directed to be remain stayed till the disposal of the stay application filed by the Refugee Handicrafts and finally the said order was confirmed and was directed to continue until the disposal of Appeal No. 911 of 1987. On 17th April, 1996 the said Appeal No. 911 of 1987 was dismissed on contest and the appellant requested the learned Receiver to execute the said decree.
5. Refugee Handicrafts preferred a special leave petition and the Hon’ble Supreme Court was pleased to set aside the order under appeal and requested the Hon’ble Court to admit the appeal and dispose of the same in accordance with law. However, the Hon’ble Supreme Court clarified that there will be no stay pending appeal and that the decree can be executed by the appellant in accordance with law. Thereafter, the appellants again requested the learned Receiver to obtain the vacant possession of the suit premises Learned Receiver went to the suit premises on 14th September, 1996 to take possession thereof. However, management and/or employees of the Refugee Handicrafts obstructed the learned Receiver and the learned Receiver could not take the possession. Appellants thereafter on 25th September, 1996 filed an application praying for a direction on the police authorities to render all assistance in the matter of execution of the said decree and on 25th February, 1997, His Lordship Sujit Kumar Sinha, J. held that the said decree was a nullity and as such inexecutable. Appellants filed a special leave petition from the said order. The special leave petition was disposed of allowing the appellant to file a Letters Patent Appeal within a fortnight. Accordingly, appellant filed this appeal. On 22nd September, 1997 this appeal was admitted and the Hon’ble Court was pleased to direct the appellants to file the Paper Book.
6. Mr. Ranjan Deb, learned Senior Advocate, appearing on behalf of the appellant submitted that it would be apparent from the records that the Refugee Handicrafts was a sub-lessee for 16 years whose sub-lease admittedly expired on 30th June, 1985. The decree for eviction was passed in 1985. For more than 20 years Refugee Handicrafts have successfully resisted execution of the decree on one pretext or the other and in the process continues to occupy an area of 4,000 sq.ft. including a showroom on the main Gariahat Road at Ballygunge Phari in Kolkata paying an occupational charge of Re. 0.60p. sq.ft. per month which was fixed in the year 1969.
7. It is submitted on behalf of the appellant that the Refugee Handicrafts took a point that the decree is a nullity in their application made on 27th September, 1985. The said application was dismissed. It is submitted that Hon’ble Executing Court on an application made by the appellants for police help to execute the said decree held that the decree was a nullity and as such inexecutable. It was held that a decree on an application under Chapter XIIIA of the rules of this Court cannot be passed. Mr. Deb drew our attention to Chapter XIIIA of the Original Side Rules. He also drew our attention to Chapter X Rule 1 of the Original Side Rules which provides as follows:
1. One General Cause List: Head of Suits in such list. – One General Cause List shall be kept in the Registrar’s Office in which all suits shall be entered under one or other of the following heads:
(1) Admiralty Suits
(2) Extraordinary Suits
(3) Small Cause Court transfer suits
(4) Matrimonial suits
(5) Testamentary Suits
(6) Special Suits….
(7) General Suits….
8. He submitted that the Original Side Rules specifically provide that transferred suits shall be dealt with on the Original Side as Extraordinary Suit and therefore, the entire Original Side Rules including Chapter XIIIA shall apply to such transferred suit.
9. He further contended that there is a distinction in procedure and practice between the High Court, Calcutta and the Alipore Court. He further submitted that the heading of Chapter XIIIA says it is procedural rule. The principle that the law, equity and rule of good conscience applicable in the lower Court should be applicable in a transferred suit necessarily means that the substantive law should be applied in a transferred suit from the lower Court. In this connection, he relied on Ormond’s Original Side Rules Notes under Clause 13 of the Letters Patent at page 146 where it is stated “the substantive law applicable is that of the lower Court”. He submitted that the distinction between what is procedural and what is substantive law, is formulated in the cases reported in 1880-81 (7) QB 329, Poyser v. Minors at page 333 and 1938 (2) KB 637, In re : Shoesmith at page 648. He further submitted that in order to show that decree is nullity or is void ab initio, it must be shown that the Court which passed the decree had no jurisdiction to pass such decree and he relied on a decision , Hiralal Moolchand Doshi v. Barot Raman Lal Ranchhoddas (Dead) by Lrs. He further submitted that a decree passed by a Court of competent jurisdiction, cannot be denuded of its efficacy by any collateral attack or in incidental proceedings. The lack of jurisdiction of the Court passing the decree must be patent on its face in order to enable the Executing Court to take cognizance of such a nullity based on want of jurisdiction. Else the normal rule that an Executing Court cannot go behind the decree must prevail and he relied upon a decision , Rafique Bibi (Dead) by Lrs. He also relied upon a decision , Balavant N. Viswamitra v. Yadav Sadashiv Mule, where the Hon’ble Supreme Court held that it is amply clear that all irregularities are not necessarily null and void. An erroneous or illegal decision, if at all, which is not void, cannot be objected to in execution of collateral proceedings. He also upon a decision , Ittyavira Mathai v. Varkey Varkey and Anr., where the Hon’ble Supreme Court held as follows:
If the suit was barred by time and yet the Court decreed it, the Court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well-settled that a Court having jurisdiction over the subject-matter of the suit and over parties thereto though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do…. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.
10. He further contended that it is for the Executing Court to see whether the Court that passed the decree at all could have passed the decree. If the Executing Court is of the view that under any circumstances, such a decree could be passed it is of no consequence whether the same decree could have been passed upon application for Judgment on admission or in an application under Chapter XIIIA of the Original Side Rules. He further pointed out that no one can contend that the Court had no jurisdiction over the subject-matter of the suit or over the parties to the suit. Therefore, he submitted that the decree cannot be said to be treated as a nullity.
11. The other point is whether under Chapter XIIIA of the Original Side Rules notice to quit refers only to a notice given by the landlord to the tenant. According to him, this cannot so because under Section 111(h) of the Transfer of Property Act, it is expressly provided as follows:
The Transfer of Property Act.
111. A lease of immoveable property determines-
…
…
(h) On the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.
12. It is, therefore, clear that notice to quit under the Transfer of Property Act can be given by the landlord to the tenant as well as by the tenant to the landlord. Under the West Bengal Premises Tenancy Act also a notice to quit can be given by either party. Under the West Bengal Premises Tenancy Act the ground of ejectment under Section 13(1)(j) can only be a notice to quit by the tenant to the landlord and not a notice to quit by the landlord to the tenant. Therefore, in case of notice to quit given by the tenant to landlord Chapter XIIIA of the Original Side Rules is clearly attracted.
13. He further contended that in the case of a notice to quit given by the tenant to the landlord the decree can never be treated as a nullity because such a decree in view of the clear admission appearing from the defendant’s affidavit and the Court can pass a decree on the basis of such admission. He further contended that the defendant has clearly admitted that (a) the period of lease had expired, (b) the notice to quit was actually given by the tenant to the landlord and (c) there was agreement subsequent to the agreement of sub-tenancy that the sub-tenant would quit on the expiry of the sublease. On the basis of this admission an eviction decree could be passed in a suit under Sections 13(1)(J) and 13(1)(k) of the West Bengal Premises Tenancy Act.
14. He further pointed out that a cross-objection had been filed by the Refugee Handicrafts that there are irregularities regarding the service of the writ of summons. Mr. Deb further pointed out that such allegations are meritless as it would be evident from the report of the learned Registrar dated 18th December, 1986 (appearing at page 333 of the Paper Book in Appeal No. 403 of 1997) which clearly states that the writ of summons was (sic) served on tins defendant on 18th July, 1985. It is further submitted that the Refugee Handicrafts has no locus standi to urge the irregularity in the service of the writ of summons since it was not a party in the suit and it was not necessary to implead them as a party to the suit. It was alleged by the Refugee Handicrafts that the defendant’s Advocate had no authority to accept the service of writ of summons. It is submitted that the vokalatnama is necessary for authorizing the defendant’s Advocate to accept service of the writ of summons. But is would be evident from the report of the Registrar, Original Side that pursuant to the order dated 16th December, 1996 the writ of summons was duly served on the defendant on 18th July, 1985 and the defendants M/s. Jumbo Traders Private Limited had entered appearance throuth Mr. B.C. Dhar, Solicitor & Advocate on 19th July, 1985.
15. It is further submitted that before the Hon’ble First Court learned Counsel appearing for the Refugee Handicrafts relied on a decision of the Refugee Handicrafts relied on a decision of the Privy Counsel reported in 41 Indian Appeal 314, Besant v. G. Narayaniah and Ors. Before the Hon’ble First Court it is submitted, “power of the District Court referred to must necessary mean substantive power”. The meaning of the said extract is that in a transferred suit, the High Court can only pass a decree if such a decree could have been passed by the lower Court, otherwise, the decree cannot be passed by the High Court. The said decision cannot be read as laying down the rule, the High Court must follow the procedure of the lower Court in passing such decree. He submitted that if a suit is being transferred before this Hon’ble Court automatically the Rules of the Original Side would apply, when the suit is being specifically marked as ‘Extra ordinary Suit’ under the list of suits under Chapter X of the Original Side Rules. Hence he submitted that Hon’ble First Court wrongly held that the decree is a nullity and therefore, it is submitted that appeal should be allowed and the order should be passed as prayed for in the Master’s Summons taken out before the Hon’ble First Court.
16. Mr. Ashok Banerjee learned senior Advocate, submitted on behalf of the Refugee Handicrafts that the suit in the instant appeal being a transferred suit and therefore, the power to pass a final Judgment in a summary proceeding under Chapter XIIIA of the Original Side Rules is not applicable. He further submitted that under Order 37 Rule 52 of the CPC the Court has no power to pass any summary decree where the suit is for recovery of immoveable property. It is further submitted that Chapter X Rule 1 of the Original Side Rules of this Court could not be construed as the sole and basic test for applicability of Chapter XIIIA of the Original Side Rules. It is further submitted that mere transfer of suit under Clause 13 of the Letters Patent and after applying Chapter X of the Rules of this Court could not ipso facto grant powers upon the Hon’ble Court to invoke jurisdiction of summary proceedings in a suit for recovery of immoveable property or can pass a final judgement. It is further submitted that the Original Court at Alipore has no power to pass a final judgement. Hence, the High Court is exercise of its extraordinary civil jurisdiction under Chapter XIIIA of the Original Side Rules cannot exercise the said power. It is further submitted that in a suit for recovery of immoveable property in the absence of notice to quit from the landlord in terms of Section 111(h) of the Transfer of Property Act, 1882 and on the contrary, on the basis of the tenant’s purported notice to quit under Section 13(1)(j) of the West Bengal Premises Tenancy Act, 1956 is not covered by Chapter XIIIA of the Original Side Rules.
17. He also relied on the decisions , Kalidas Pal v. Sripati M. Roychowdhury and Ors. , Tarachand Ghanshyamdas v. State of West Bengal 41 1A 314, Besant v. G. Narayaniah and Ors. and , Satyendra Nath Bose v. Bibhuti Bhusan Bhar and Ors.
18. Mr. Banerjee further submitted and clarified that the case of the Refugee Handicrafts was never that the Original Side Rules of this Hon’ble Court are not applicable in the transfer suit as sought to be projected by the appellants during the arguments put forward on behalf of the appellants. On the contrary, he submitted that to invoke jurisdiction under Chapter XIIIA of the Original Side Rules the Hon’ble Court has to satisfy whether the suit fulfils the requisite ingredients for application of rules made under Chapter XIIIA of the Original Side Rules. He submitted that in any event the said rules could not be invoked in the instant case and hence the final Judgment and/or decree could not have been passed by the Court.
19. He further submitted that Section 111(h) of the Transfer of Property Act, 1882 which exclusively held the field at the relevant times made a clear distinction between notice ‘to quit’ and that of ‘intention to quit’ under Section 13(1)(j) of the West Bengal Premises Tenancy Act, 1956 is not covered by Chapter XIIIA of the Original Side Rules.
20. He also contended that entering of appearance by the learned Advocate B.C. Dhar on behalf of the respondent/defendant has not been made in terms of Form 4 of Appendix ‘B’ under Chapter VII Rule 15 of the Original Side Rules. He further submitted that the writ of summons issued in the above suit by this Court was never returned to Court and in any event, the same was not dispensed with by the Hon’ble Court.
21. Hence, he contended that there is no valid service of the writ of summons and there was valid entering of appearance in the application filed by the appellant under Chapter XIIIA of the Original Side Rules, the decree could not have been passed by the Court. He further contended that there was an act of collusion and connivance between the appellants and the defendant Jumbo Traders Private Limited and the suit was transferred before this Court without any reason whatsoever.
22. After considering the facts and circumstances of this case it appears to us that the only question to be decided by this Court at this stage whether the decree is a nullity meaning thereby whether the Court lacked any jurisdiction at the time of passing of the said decree. It appears that the suit was filed against the defendant Jumbo Traders Private Limited and the said suit was transferred before this Court and after such transfer an application was filed before the Court under Chapter XIIIA of the Original Side Rules. It further appears that the defendant Jumbo Traders Private Limited admitted in their affidavit-in-opposition filed before this Court that the period of lease had expired and the notice ‘to quit’ was actually given by the tenant to the landlord and there was an agreement subsequent to the agreement of sub-tenancy that the sub-tenant would quit on the expiry of sub-lease. Therefore, these admissions in the affidavit-in-opposition which was filed by the Jumbo Traders Private Limited before the Hon’ble First Court and on the basis of these admissions, in our opinion, an eviction decree could be passed in a suit under Sections 13(1)(j) and 13(1)(k) of the West Bengal Premises Tenancy Act, 1956.
23. After scrutinising the facts we have also examined Section 111(h) of the Transfer of Property Act and it would be clear from the said section that a notice ‘to quit’ under the said Act can be given to the landlord by the tenant or vice versa. There also cannot be any doubt in our mind that the notice ‘to quit’ can also be given by either party under the provisions of West Bengal Premises Tenancy Act. Therefore, the only question arose that whether in these circumstances Chapter XIIIA of the Original Side Rules can be attracted. Therefore, we do not find any irregularity or lacking of jurisdiction to attract Chapter XIIIA of the Original Side Rules in the case of a notice to quit given by the tenant to the landlord and furthermore, if a decree is passed on that basis, it has to be held that such a decree has been passed by the Court on the clear admission made by the defendant and therefore, the said decree can never be treated as a nullity and it cannot be said that the Court in passing such a decree is lacking its jurisdiction.
24. The irregularities which have been alleged regarding services of the writ of summons we have found out from the report of the learned Registrar, Original Side on 18th December, 1996 and it is evident from the said report that the writ of summons duly served upon the defendant on 18th July, 1985 and therefore, in our opinion, the point which sought to be raised before us cannot have any bearing with regard to the question of jurisdiction or can affect the validity of the decree so passed by the Court. Furthermore, it appears to us that Refugee Handicrafts was not a party to the suit and it was not necessary to implead them as a party since the suit was filed against the original lessee. We do not intend to investigate into the matter that whether the learned Advocate was appearing at that point of time, or accepted the service of the writ of summons. It is the practice of this Court that mere oral instruction to accept the service on behalf of the client is enough on the part of the Advocate-on-Record to accept the service of the writ of summons in a suit. Therefore, we do not find any reason to hold that the writ of summons was not served on the defendant. We also rely upon the report of the learned Registrar, Original Side and accept the position that the defendant Jumbo Traders Private limited has entered appearance through the learned Advocate-on-Record Mr. B.C. Dhar on 19th July, 1985. If a service has already been effected on the Advocate of the defendant in accordance with the provisions of Chapter VIII Rule 14 of the Original Side Rules, we do not find that there is any reason to deliver the writ of summons to the Sheriffs office for service in accordance with such rule. We also do not think that the writ of summons has to be served personally or by registered post since the service on the Advocate is accepted by the Court. We further make it clear that at no point of time the defendant raised any objection in respect thereof nor have ever challenged such service of the writ of summons on them through their learned Advocate-on-Record and therefore, we feel that the Refugee Handicrafts had no right to take such point at this stage.
25. We have also examined the provisions of Chapter XIIIA and we must express our opinion that if Chapter XIIIA applies to the eviction suit where the landlord has given a notice, it should also apply with a greater force where the notice ‘to quit’ has given by the tenant to the landlord.
26. We further keep it on record that learned Senior Counsel appearing on behalf of the Refugee Handicrafts has also admitted the applicability of the Original Side Rules to a transfer suit when he submitted that entering of appearance has to be made by a memorandum in writing in accordance with Form 4 or 5 of Appendix B of the Original Side Rules.
27. In Besant v. G. Narayaniah (supra) the Court held that the only question arose that when the Original Court had no jurisdiction to deal with the matter whether the High Court could have exercised its jurisdiction in the said matter after the said suit is being transferred before the High Court. The Privy Council observed that the jurisdiction possessed by the High Court in the suit by reason of the transfer under Clause 13 of the Letters Patent of 1865 was limited by Clause 20 to the powers possessed by the District Court in which the suit was instituted. But the District Court had no jurisdiction in the suit. Therefore, even if the suit transferred under Clause 13 of the Letters Patent, but the power of the High Court in dealing with the suits so transferred would seem to be confined to powers which but for the transfer might have been exercised by the District Court. On such ground the Privy Council held that when the District Court had no jurisdiction, the High Court also cannot have any jurisdiction to decide the matter.
28. In Kalidas Pal v. Sripati M. Roychowdhury and Ors. (supra) the Court held that the provisions of Chapter XIIIA had no application in the suit in question. Therefore, the Court had no authority to entertain the application under Chapter XIIIA. Therefore any decree is being passed under the provisions of Chapter XIIIA of the Original Side Rules is without jurisdiction and cannot bind the mortgagor without adjudication of his defence which is to be adjudicated in the suit.
29. In Tarachand Ghanshyamdas v. State of West Bengal (supra) the Court held that when a suit is transferred under Clause 13 of the Letters Patent it does not become a suit ‘instituted’ in the High Court. The institution in the Original Court is not extinguished by the transfer, nor is an institution in the High Court substituted. The suit remains a suit of the Court where the plaint was filed and Clause 20 of the Letters Patent expressly provides that the law or equity and rule of good conscience which would have been applicable to the suit in the local Court shall continue to apply.
30. After scrutinising all these facts and analyzing the decisions cited before us by learned senior Advocate appearing for the parties, we do not find that the decree so passed by the Court, can be treated as non est or a nullity since in our opinion, the Hon’ble Court had jurisdiction to pass such decree. In these circumstances, we allow the appeal and set aside the order so passed by the Hon’ble First Court. Accordingly, there will be an order in terms of the prayers made in the Master’s Summons dated 20th September, 1996.
Later:
Stay asked for is granted only for 2 weeks.
Tapan Kumar Dutt, J.
30. I agree.
