PETITIONER:
SMT. ISABELLA JOHNSON
Vs.
RESPONDENT:
M.A. SUSAI
DATE OF JUDGMENT09/10/1990
BENCH:
KANIA, M.H.
BENCH:
KANIA, M.H.
OJHA, N.D. (J)
CITATION:
1991 AIR 993 1990 SCR Supl. (2) 213
1991 SCC (1) 494 JT 1990 (4) 406
1990 SCALE (2)928
ACT:
Rent Control and Eviction: Andhra Pradesh Rent Control
Act, 1960: Section 3--Eviction suit--Jurisdiction of
Courts--Res judicata and Estoppel-- Whether applicable.
Civil Procedure Code, 1908: Section 11--Jurisdiction of
Courts --Pure question of law--Res judicata--Applicability
of.
Evidence, Act, 1872: Section 115-- Estoppel--Applica-
bility of in regard to jurisdiction of Courts.
HEADNOTE:
The Respondent-landlord filed a suit under the Andhra
Pradesh Rent Control Act for recovery of possession and for
mesne profits. The apPellant-defendant raised a preliminary
objection that the City Civil Court had no jurisdiction to
entertain the suit. In the two eviction petitions filed
earlier by the appellant, the Respondent took the plea that
since the alleged tenancy was hit by Section 3 of the A.P.
Rent Control Act, eviction suit was not entertainable by the
Rent Controller.
Decreeing the suit in favour of the appellant, the trial
Court held that it was not oPen to the Respondent to take
such inconsistent plea regarding jurisdiction; that he
cannot be allowed to approbate and reprobate and he was
estopped from doing so. On apPeal by respondent, the deci-
sion was upheld by the First Appellate Court. On a second
apPeal preferred by the respondent, the High Court reversed
the trial court's order.
Aggrieved by the decision of the High Court, the appel-
lant preferred this apPeal, by special leave, contending
that the principles of Res Judicata and estopPel were ap-
plicable.
Dismissing the apPeal, this Court,
HELD: 1. A court which has no jurisdiction in law cannot
be conferred with the jurisdiction by applying principles of
res judicata. It is well settled that there can be no estop-
pel on a pure question of law. [217F]
214
Mahtura Prasad Bajoo Jaiswal and Ors. v. Dossibai N.B.
Jeejeebhoy, [1970] 3 SCR 830; Sushil Kumar Mehta v. Gobind
Ram Bohra (dead) thro' his Lrs., [1990] 1 SCC 193; relied
on.
Avtar Singh and Ors. v. Jagjit Singh and Anr., [1979] 4
SCC 83; referred to.
2. In the instant case, the question of jurisdiction is
a pure question of law. The High Court was right in its
conclusions that in matters of jurisdiction to entertain the
suit, doctrine of estoppel could not be invoked; and that
the City Civil Court had no jurisdiction to entertain the
suit, as it lay exclusively within the jurisdiction of the
Rent Controller. [216A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 277 1 of
1981.
From the Judgment and Order dated 5.2.1980 of the Andhra
Pradesh High Court in S .A. No. 526 of 1977.
Jagdish K. Agarwal (N.P.) for the Appellant.
A Subba Rao for the Respondents.
The Judgment of the Court was delivered by
.
KANIA, J. This is an appeal by special leave from the
decision of a learned Single Judge of the Andhra Pradesh
High Court in Second Appeal No. 526 of 1977.
As we are, with respect, in agreement with the conclu-
sions arrived at by the learned Single Judge of the High
Court, we propose to set out only the bare facts essential
for the purposes of our judgment.
The appellant was the plaintiff and the respondent was
the defendant in Suit. O.S. No. 789 of 1973 filed in the
Court of the Third Assistant Judge, City Civil Court, Hyd-
erabad. The appellant prayed for a decree for recovery of
possession of the suit premises from the respondent and for
mesne profits till the delivery of possession of the prem-
ises. The case of the appellant was that she was the owner
of the suit premises and the respondent was in the occupa-
tion of the said premises on payment of Rs.30 per month. The
respondent had been
215
irregular in the payment of the said rent and had been a
source of perpetual nuisance. It was on this ground that the
eviction of the premises was sought by the appellant. In his
written statement the respondent took a preliminary objec-
tion that the City Civil Court had no jurisdiction to enter-
tain the suit as the suit fell within the jurisdiction of
the Rent Controller at Hyderabad. Two petitions had earlier
been filed by the appellant before the Rent Controller for
eviction of the respondent and the Rent Controller had
rejected the same on the ground that the purported tenancy
of the respondent was hit by section 3 of the A.P. Rent
Control Act and hence, the eviction suit was not entertain-
able by the Court of Rent Controller. This conclusion was
arrived at on a plea to the said effect taken by the re-
spondent. In the Court of learned Third Assistant Judge of
the City Civil Court at Hyderabad the respondent took up the
plea that the suit fell exclusively within the jurisdiction
of the Rent Controller and hence the City Civil Court had no
jurisdiction to entertain the suit. Certain pleas were made
regarding amendments in the law with which we are not con-
cerned in this appeal. What is material to note for our
purposes is that the learned Assistant Judge took the view
that as the respondent had, before the Rent Controller,
taken up the plea that it was not the Rent Controller but
the City Civil Court which had the jurisdiction to entertain
the eviction petition against him, and the said plea was
upheld, it was not open to the respondent to take up the
inconsistent plea before the City Civil Court that it was
the Rent Controller and not the City Civil Court which had
jurisdiction to entertain the proceedings. It was held that
the respondent could not be allowed to approbate and repro-
bate and that he was estopped by way of pleading to take up
an inconsistent plea regarding jurisdiction.
On the basis of this conclusion, and other conclusions
with which we are not concerned, the suit was decreed by the
learned Assistant Judge in favour of the appellant. The
decision of the learned Assistant Judge was upheld in an
appeal filed by the respondent in the Court of the learned
Additional Chief Judge of the City Civil Court at Hyderabad.
On a second appeal preferred by the respondent, the learned
Single Judge of the High Court took the view that in matters
of jurisdiction the question of estoppel does not arise. If
the City Civil Court has no jurisdiction to entertain the
suit, the doctrine of estoppel could not be invoked so as to
confer jurisdiction on the Court of City Civil Court. On the
question of jurisdiction the learned Judge took the view
that the City Civil Court had no jurisdiction to entertain
the suit as it lay exclusively within the jurisdiction of
the Rent Controller.
216
Learned counsel for the appellant submitted that the
learned Judge of the High Court was in error,as the earlier
decisions of the Rent Controller to the effect that it was
the City Civil Court and not the Rent Controller who had the
jurisdiction to entertain the suit for eviction filed by the
appellant against the respondent, constituted res judicata
between the parties on the question of jurisdiction. It was
submitted by him that, even if that decision was wrong, the
issue of jurisdiction was finally decided between the par-
ties and that decision was that it was the Civil Court and
not the Rent Controller that had the jurisdiction to enter-
tain and dispose of the suit for eviction. He further sub-
mitted that the respondent could not be permitted to take
inconsistent pleas as he was barred by the principles of
estoppel from taking up the plea before the Civil Court that
it was the Rent Controller who had the exclusive jurisdic-
tion to entertain the suit. He placed reliance on a decision
rendered by a Division Bench comprising two learned Judges
of this Court in Avtar Singh and Others v. Jagjit Singh and
Another, [1979] 4 SCC 83 which took the view that the Civil
Court’s decision regarding lack of jurisdiction will operate
as res judicata in a subsequent suit. In that case the Civil
Court declined jurisdiction. The Civil Court took the view
that it had no jurisdiction to try the suit in question and
directed the return of the plaint for representation to the
appropriate Revenue Court. When the claim was filed in the
Revenue Court, the Court took the view that it had no juris-
diction to try the claim. Thereupon, a suit was again insti-
tuted in the Civil Court for the lame relief. This suit
failed throughout on the ground of res judicata. I?he High
Court affirmed the dismissal and the Division Bench of this
Court took the view that the High Court was right in taking
the view hat the principles of res judicata were applicable
to the issue of jurisdiction. In our opinion, the contention
of learned counsel for the appellant cannot be upheld. We
find that in Mathura Prasad Bajoo Jaiswal and Others v.
Dossibai N.B. Jeejeebhoy, [1970] 3 SCR 830 at p. 836 a Bench
comprising three learned Judges of this Court has taken the
view that a decision on the question of jurisdiction of the
court or a sure question of law unrelated to the right of
the parties to a previous suit, is not res judicata in the
subsequent suit. The Court observed:
“It is true that in determining the application of the rule
of res judicata the Court is not concerned with the correct-
ness or otherwise of the earlier judgment. The matter in
issue, if it is one purely of fact, decided in the earlier
proceeding by a competent court must in a subsequent litiga-
tion between the same parties be regarded as finally decided
and cannot be reopened. A mixed question of law and fact
determined
217
in the earlier proceeding between the same parties may not,
for the same reason, be questioned in a subsequent proceed-
ing between the same parties. But, where the decision is on
a question of law, i.e. the interpretation of a statute, it
will be res judicata in a subsequent proceeding between the
same parties where the cause of action is the same, for the
expression “the matter in issue” in S. 11 of the Code of
Civil Procedure means the right litigated between the par-
ties, i.e. the facts on which the right is claimed or denied
and the law applicable to the determination of that issue.
Where, however, the question is one purely of law and it
relates to the jurisdiction of the Court or a decision of
the Court sanctioning something which is illegal, by resort
to the rule of res judicata a party affected by the decision
will not be precluded from challenging the validity of that
order under the rule of res judicata, for a rule of proce-
dure cannot supersede the law of the land.”
The same view has been reiterated by a Bench comprising
three learned Judges of this Court in Sushil Kumar Mehta v.
Gobind Ram Bohra (dead) through his Lrs., [1990] 1 SCC 193.
We find that the decision of three learned Judges of this
Court in Mathurn Prasad Bajoo Jaiswal and Others v. Dossibai
N.S. Jeejeebhoy, has not been noticed at all by the Division
Bench comprising two learned Judges of this Court which
delivered the judgment in Avtar Singh and Others v. Jagjit
Singh and Another, and hence, to the extent, that the judg-
ment in Avtar Singh’s case takes the view that the principle
of res judicata is applicable to an erroneous decision on
jurisdiction, it cannot be regarded as good law. In our
opinion a court which has no jurisdiction in law cannot be
conferred with the jurisdiction by applying principles of
res judicata. It is well settled that there can be no estop-
pel on a pure question of law and in this case the question
of jurisdiction is a pure question of law.
In our view, therefore, the High Court was, with re-
spect, right in its conclusions arrived at and the appeal
must be dismissed.
The appeal is dismissed. Looking to the facts and cir-
cumstances of the case there will be no order as to costs.
G.N. Appeal dis-
missed.
218