{"id":210889,"date":"2009-02-25T00:00:00","date_gmt":"2009-02-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-i-m-sajjdeen-vs-a-1254-on-25-february-2009"},"modified":"2018-09-11T01:59:43","modified_gmt":"2018-09-10T20:29:43","slug":"k-i-m-sajjdeen-vs-a-1254-on-25-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-i-m-sajjdeen-vs-a-1254-on-25-february-2009","title":{"rendered":"K.I.M.Sajjdeen vs A.1254 on 25 February, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
K.I.M.Sajjdeen vs A.1254 on 25 February, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 25\/02\/2009\n\nCORAM\nTHE HONOURABLE MR.JUSTICE N. PAUL VASANTHAKUMAR\n\nC.R.P.(NPD)(MD)No.1090 of 2007\nM.P.(MD)No.1 of 2007\n\nK.I.M.Sajjdeen\t\t\t...\t\t\tPetitioner\n\nVs.\n\nA.1254, Theni Co-Operative Sale Society Limited,\nTheni,\nrep.by its Special Officer\/\nDeputy Registrar\t\t...\t\t\tRespondent\n\n\n\tThis Civil Revision Petition is filed under Section 227 of the\nConstitution of India, against the order dated 5.6.2007 in E.P.No.231 of 2006 in\nR.C.O.P.No.13 of 2001 on the file of the District Munsif Court, Theni.\n\n!For Petitioner  ...\tMr.M.Ajmal Khan\n^For Respondent\t ...\tMr.S.Seenivasagam\n\n:ORDER\n<\/pre>\n
\tThis civil revision petition is filed under Article 227 of the
\nConstitution of India, challenging the order of arrest made in E.P.No.231 of
\n2006 in R.C.O.P.No.13 of 2001 on the file of the Rent Controller (District
\nMunsif Court), Theni.\n<\/p>\n
\t2.\tThe respondent herein filed R.C.O.P.No.13 of 2001 before the Rent
\nController (District Munsif Court), Periyakulam, under Sections.10(2)(i) and
\n10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960,
\ncontending that the petitioner herein committed wilful default in payment of
\nrent to the building viz., two rooms bearing Door No.641 and 656, for which rent
\nwas agreed to be paid at the rate of Rs.150\/- and Rs.500\/- per month
\nrespectively, and also on the ground that the petitioner had sub-let a portion
\nof the stalls to some third parties.\n<\/p>\n
\t3.\tThe revision petitioner, though resisted the said eviction petition,
\nthe Rent Controller, by order dated 18.9.2003, ordered eviction on the ground of
\nwilful default.  Insofar as the ground of sub-letting is concerned, the eviction
\npetition was rejected.  The revision petitioner vacated the premises and handed
\nover vacant possession of the rental premises to the respondent, pursuant to the
\norder passed in E.P.No.35 of 2004 and delivery of possession was recorded on
\n5.3.2005 through the Court Amin.\n<\/p>\n
\t4.\tIn the eviction petition, in addition to the  prayer for eviction on
\nthe above two grounds, the respondent herein sought for a  direction to the
\npetitioner herein to pay all the arrears of rent to the respondent herein.  The
\neviction petition having been allowed with a direction to pay the rental arrears
\nwithin three months, the respondent herein filed E.P.No.231 of 2006 and prayed
\nfor execution of the decree insofar as the non-compliance of the order directing
\npayment of arrears of rent.\n<\/p>\n
\t5.\tThe said execution petition was resisted by the petitioner\/tenant by
\nfiling counter affidavit contending that the direction issued to pay the arrears
\nof rent by the Rent Control Court is without jurisdiction and no amount was
\nquantified and therefore the respondent cannot file execution petition for
\nrealisation of the amount of Rs.34,750\/-.  It is also stated in the counter
\naffidavit that the execution petition filed as such is not maintainable.\n<\/p>\n
\t6.\tThe learned Rent Controller rejected the contention raised in the
\ncounter affidavit and ordered arrest of the petitioner\/tenant by 6.7.2007 under
\nOrder XXI Rule 37 CPC.  The said order is challenged in this revision petition
\non the ground that the Rent Control Court, constituted under the Tamil Nadu
\nBuildings (Lease and Rent Control) Act, 1960, has no jurisdiction to give
\ndirection to pay the arrears of rent and the prayer made by the respondent in
\nthe eviction petition for a direction to pay the arrears of rent while ordering
\neviction for wilful default in payment of rent is unsustainable.\n<\/p>\n
\t7.\tThe learned counsel for the revision petitioner submitted that the
\nRent Control Court has no jurisdiction to order payment of arrears of rent and
\nhence the decree passed for paying the arrears of rent while ordering eviction
\nis a nullity and the said plea was raised in the execution proceedings before
\nthe Rent Controller, which was not properly considered and therefore this
\nrevision petition is filed on the plea that nullity of the decree, which is
\nincapable of execution, can be challenged in any proceeding.  According to the
\nlearned counsel, the same is challenged in this revision petition under the
\nsupervisory jurisdiction of this Court under Article 227 of the Constitution of
\nIndia.  The learned counsel also submitted that as per the explanation to
\nSection 22 of the Tamil Nadu Court Fees and Suit Valuation Act, 1955, the claim
\nbeing realisation of money, the respondent has to file civil suit by paying
\nCourt fee and shall obtain a decree and in this case, no money suit is filed
\nbefore the Civil Court for recovery of money\/rental arrears.  Hence the learned
\ncounsel contended that the Rent Controller has no jurisdiction to order arrest
\nof the petitioner for realisation of the arrears of rent.\n<\/p>\n
\t8.\tThe learned counsel for the respondent on the other hand submitted
\nthat the respondent having filed R.C.O.P.No.13 of 2001 with a specific prayer
\nfor  consequential direction to the petitioner\/tenant in the eviction petition,
\nto pay all the arrears of rent and the said petition having been allowed, there
\nis a valid decree obtained by the respondent for the arrears of rent and the
\npetitioner having not filed any appeal against the said portion of the decree
\nand the decree having become final, the respondent is entitled to file execution
\npetition to implement that portion of the decree as the said decree has become
\nfinal and binding and therefore there is no illegality in the order passed by
\nthe Executing Court viz., the Rent Controller and the same cannot be interfered
\nwith in this revision petition.\n<\/p>\n
\t9.\tI have considered the rival submissions made by the learned counsel
\nfor the petitioner as well as the respondent.\n<\/p>\n
\t10.\tFrom the above narrated pleadings and arguments the following issues
\narise for consideration:\n<\/p>\n
(1) Whether the Rent Controller is vested with the jurisdiction to order payment
\nof arrears of rent after ordering eviction ?\n<\/p>\n
(2) Whether the Rent Controller is bound to consider the plea of nullity of
\ndecree in the execution proceedings ?\n<\/p>\n
Issue No.1 – Whether the Rent Controller is vested with the jurisdiction to
\norder payment of arrears of rent after ordering eviction ?\n<\/p>\n
\t11.\tThe respondent herein filed R.C.O.P.No.13 of 2001 on two grounds
\nviz., under Sections 10(2)(i) and 10(2)(ii)(a) of the Tamil Nadu Buildings
\n(Lease and Rent Control) Act, 1960.  The said two grounds urged in the eviction
\npetition are on the ground of wilful default in payment of rent.  The said
\nprovisions are extracted hereunder:\n<\/p>\n
\t“Sec.10.\tEviction of tenants.-\n<\/p>\n
\t(1)\t…………\n<\/p>\n
\t(2)\tA landlord who seeks to evict his tenant shall apply to the
\nController for a direction in that behalf.  If the Controller, after giving the
\ntenant a reasonable opportunity of showing cause against the application, is
\nsatisfied-\n<\/p>\n
\t(i)\tthat the tenant has not paid or tendered the rent due by him in
\nrespect of the building, within fifteen days after the expiry of the time fixed
\nin the agreement of tenancy with his landlord or in the absence of any such
\nagreement, by the last day of the month next following that for which the rent
\nis payable, or\n<\/p>\n
\t(ii)\tthat the tenant has after the 23rd October, 1945 without the written
\nconsent of the landlord-\n<\/p>\n
\t(a)\ttransferred his right under the lease or sub-let the entire building
\nor any portion thereof, if the lease does not confer on him any right to do so,
\nor
\n\t……………..”\n<\/p>\n
From the perusal of the above statutory provisions it is clear that non-payment
\nof rent i.e, wilful default, sub-letting are grounds for filing the eviction
\npetition and if the said grounds are established, the Rent Controller is
\nempowered to order eviction of the tenant.  Nowhere in the said sections, the
\nLandlord is given the right to demand arrears of rent in the eviction petition.
\nIn proviso to Section 10 it is stated that if the default in payment of rent is
\nnot wilful, he may notwithstanding anything contained in Section 11, give the
\ntenant a reasonable time, not exceeding fifteen days, to pay or tender the rent
\ndue by the tenant and if the same is complied with, he shall reject the
\napplication seeking eviction.\n<\/p>\n
\t12.\tThe power of the Rent Controller to order deposit of the rent is
\nagain provided under Section 11 of the Act, which reads as follows:\n<\/p>\n
\t“Sec.11.\tPayment or deposit of rent during the pendency of proceedings
\nfor eviction.-\n<\/p>\n
\t(1)\tNo tenant against whom an application for eviction has been made by
\na landlord under Section 10 shall be entitled to contest the application before
\nthe Controller under that Section, or to prefer any appeal under Section 23
\nagainst any order made by the Controller on the application, unless he has paid
\nor pays to the landlord, or deposits with the Controller or the Appellate
\nAuthority, as the case may be, all arrears of rent due in respect of the
\nbuilding up to the date of payment or deposits, and continues to pay or to
\ndeposit any rent which may subsequently become due in respect of the building
\nuntil the termination of the proceedings before the Controller or the Appellate
\nAuthority, as the case may be.\n<\/p>\n
\t(2)\tThe deposit of rent under sub-section (1) shall be made within the
\ntime and in the manner prescribed.\n<\/p>\n
\t(3)\tWhere there is any dispute as to the amount of rent to be paid or
\ndeposited under sub-section (1) the Controller or the Appellate Authority, as
\nthe case may be, shall, on application made to him either by the tenant or by
\nthe landlord, and after making such inquiry as he deems necessary, determine
\nsummarily the rent to be so paid or deposited.\n<\/p>\n
\t(4)\tIf any tenant fails to pay or to deposit the rent as aforesaid, the
\nController or the Appellate Authority, as the case may be, shall, unless the
\ntenant shows sufficient cause to the contrary, stop all further proceedings and
\nmade an order directing the tenant to put the landlord in possession of the
\nbuilding.\n<\/p>\n
\t(5)\tThe amount deposited under sub-section (1) may, subject to such
\nconditions as may be prescribed, be withdrawn by the landlord on application
\nmade by him in that behalf to the Controller or the Appellate Authority, as the
\ncase may be.”\n<\/p>\n
Section 9 of the Act empowers the tenant to deposit the rent in the Court in
\ncertain circumstances viz., when the address of the landlord or his authorised
\nagent is not known to the tenant.  The tenant may deposit the rent before the
\nController unless and until the address of the landlord or his authorised agent
\nbecomes known to the tenant.  Section 8(5) of the Act also enables the tenant to
\ndeposit the rent before the Controller after following the mandatory procedures
\ncontemplated under Sections 8(2)(3) & (4).\n<\/p>\n
\t13.\tUnder the above provisions, a tenant can deposit the rents if the
\nlandlord refuses to receive the same.  Nowhere in the Rent Control Act, the Rent
\nController is given power to give a direction to pay the arrears of rent while
\nordering eviction.  Only for the continuance of the Rent Control proceeding or
\non filing appeal, the tenant may be directed to deposit the rent in the Court.\n<\/p>\n
\t14.\tThe learned counsel for the petitioner is right in his submission
\nthat if the arrears of rent is to be collected by the landlord and if it is
\nrefused to be paid by the tenant, the only remedy available is to file the money
\nsuit.  The term ‘money suit’ or ‘suit for money’ is explained under Section 22
\nof the Tamil Nadu Court Fees and Suit Valuation Act, 1955, which reads as
\nfollows:\n<\/p>\n
\t“Section 22. Suits for money.- In a suit for money (including a suit for
\ndamages or compensation, or arrears of maintenance, of annuities, or of other
\nsums payable periodically), fee shall be computed on the amount claimed.
\n\tExplanation.- For the purposes of this section, the expression “suit for
\nmoney” shall in respect of the transferred territory, also include suits for
\nrents, pattam, michavaram, adukkuvathu, janmikaram, or other dues of a like
\nnature.”\n<\/p>\n
From the reading of Section 22, it is evident that a suit for recovery of the
\nrent is also a money suit.  Admittedly the respondent has not filed any suit for
\nrecovery of the arrears of rent\/money before the competent civil Court.  The
\nRent Controller is a statutory authority created under the Act, discharges his
\nduties in a different capacity than the civil court.  Further, the respondent
\nhas not quantified the arrears of rent and no court fee is also paid for
\nrealisation of the alleged rental due of Rs.34,750\/-.\n<\/p>\n
\t15.\tThe Rent Controller is given jurisdiction to deal with eviction
\nmatters and also to fix the fair rent under the Act.  The Rent Controller is an
\nauthority conferred with the powers under the Act.  The Tenant is a statutory
\ntenant as per the Act.  When the Rent Controller is getting powers under the
\nstatutory enactment, he has to exercise his powers within the four corners of
\nthat statute and not beyond that.  Since no power is vested with the Rent
\nController to pass a decree for payment of arrears of rent under the Act, the
\ndecree passed by the Rent Controller ordering payment of arrears of rent within
\nthree months while ordering eviction is a statutory violation.  Therefore, the
\ndecree passed directing payment of arrears of rent is a nullity.  It is a well
\nsettled proposition of law that a statutory authority can perform his statutory
\nfunctions only within the statute. In the decision reported in (1974) 1 SCC 242
\n(Nagindas Ramdas v. Dalpatram Ichharam), the Honourable Supreme Court<\/a> held that
\nthe Rent Controller can pass orders only in accordance with the statute.
\nParagraphs 15 to 17 of the decision read as follows:\n<\/p>\n
\t“15. All these three Acts lay down specific grounds more or less similar,
\non which a decree or order of eviction can be passed by the Rent Court or the
\nTribunal exercising exclusive jurisdiction. In the Delhi Rent Act, such grounds
\nare specified in a consolidated form under Section 13, while the same thing has
\nbeen split up into two and provided in two Sections (12 and 13) in the Bombay
\nRent Act which represent the negative and positive parts of the same pattern.
\nTaken together, they are exhaustive of the grounds on which the Rent Court is
\ncompetent to pass a decree of possession. Similarly, in the Madras Rent Act, the
\ngrounds on which a tenant can be evicted, are given in Sections 10, 14 to 16.\n<\/p>\n
\t16. Section 13 of the Delhi Rent Act starts with a non obstante clause
\nviz. “Notwithstanding anything to the contrary contained in any other law or any
\ncontract, no decree or order for the recovery of possession of any premises
\nshall be passed by any Court in favour of the landlord against any tenant….”
\nLikewise, Section 10(1) of the Madras Rent Act starts with the clause, “a tenant
\nshall not be evicted whether in execution of a decree or otherwise except in
\naccordance with the provisions of this Section or Sections 14 to 16”.\n<\/p>\n
\t17. It will thus be seen that the Delhi Rent Act and the Madras Rent Act
\nexpressly forbid the Rent Court or the Tribunal from passing a decree or order
\nof eviction on a ground which is not any of the grounds mentioned in the
\nrelevant Sections of those statutes. Nevertheless, such a prohibitory mandate to
\nthe Rent Court that it shall not travel beyond the statutory grounds mentioned
\nin Sections 12 and 13, and to the parties that they shall not contract out of
\nthose statutory grounds, is inherent in the public policy built into the statute
\n(Bombay Rent Act).”\n<\/p>\n
\t16.\tThe word “controller” is defined under Section 2(3) of the Tamil
\nNadu Buildings (Lease and Rent Control) Act, 1960, as follows:
\n\tSec.2(3) “Controller” means any person appointed by the Government, by
\nnotification, to exercise the powers of a controller under this Act for such
\narea as may be specified in the notification.”\n<\/p>\n
It is evident that even though a Civil Judge is appointed by the Government by
\nnotification as Rent Controller, he is only a designated authority under the
\nTamil Nadu Buildings (Lease and Rent Control) Act, 1960, i.e. persona designata.\n<\/p>\n
\t17.\tThus, the learned counsel for the petitioner is right in contending
\nthat the Rent Controller has no jurisdiction to give direction to pay the
\narrears of rent after ordering eviction on the ground of wilful default.  The
\nobjection raised before the learned Rent Controller on the ground that the order
\npassed in R.C.O.P.No.13 of 2001 has become final, cannot be sustained in view of
\nthe fact that the Rent Controller has no jurisdiction to pass a decree directing
\npayment of arrears of rent to the landlord after ordering eviction.\n<\/p>\n
Issue No.2 – Whether the Rent Controller is bound to consider the plea of
\nnullity of decree in the execution proceedings ?\n<\/p>\n
\t18.\tThe executability of the decree, which is non-est is considered by
\nthe Honourable Supreme Court in very many decisions.\n<\/p>\n
\t(a)\tIn AIR 1954 SC 340 (Kiran Singh v. Chaman Paswan)<\/a> in paragraph 6 the
\nHonourable Supreme Court held thus:\n<\/p>\n
\t“6.\t…… It is a fundamental principle well-established that a decree
\npassed by a Court without jurisdiction is a nullity and that its invalidity
\ncould be set up whenever and wherever it is sought to be enforced or relied
\nupon, even at the stage of execution and even in collateral proceedings.  A
\ndefect of jurisdiction whether it is pecuniary or territorial, or whether, it is
\nin respect of the subject-matter of the action, strikes at the very authority of
\nthe Court to pass any decree, and such a defect cannot be cured even by consent
\nof parties.  ……..”\n<\/p>\n
\t(b)\tIn AIR 1962 SC 199 (Hira Lal v. Kali Nath) in paragraph 4 the
\nSupreme Court held as follows:\n<\/p>\n
\t“4.\t……..\tThe validity of a decree can be challenged in execution
\nproceedings only on the ground that the court which passed the decree was
\nlacking in inherent jurisdiction in the sense that it would not have seizin of
\nthe case because the subject matter was wholly foreign to its jurisdiction or
\nthat the defendant was dead at the time the suit had been instituted or decree
\npassed, or some such other ground which could have the effect of rendering the
\ncourt entirely lacking in jurisdiction in respect of the subject matter of the
\nsuit or over the parties to it.  ……”\n<\/p>\n
\t(c)\tIn AIR 1970 SC 1475 (V.D.Modi v. R.A.Rehman), in paragraph 7 it is
\nheld thus,
\n\t“7.\tWhen a decree which is a nullity, for instance, where it is passed
\nwithout bringing the legal representatives on the record of a person who was
\ndead at the date of the decree, or against a ruling prince without a
\ncertificate, is sought to be executed an objection in that behalf may be raised
\nin a proceeding for execution.  Again, when the decree is made by a Court which
\nhas no inherent jurisdiction to make it, objection as to its validity may be
\nraised in an execution proceeding if the objection appears on the face of the
\nrecord ………”\n<\/p>\n
\t(d)\tIn (1977) 2 SCC 662 (Sunder Dass v. Ram Prakash)<\/a> in paragraph 3, the
\nSupreme Court held as follows:\n<\/p>\n
\t“3. Now, the law is well settled that an executing court cannot go behind
\nthe decree nor can it question its legality or correctness. But there is one
\nexception to this general rule and that is that where the decree sought to be
\nexecuted is a nullity for lack of inherent jurisdiction in the court passing it,
\nits invalidity can be set up in an execution proceeding. Where there is lack of
\ninherent jurisdiction, it goes to the root of the competence of the court to try
\nthe case and a decree which is a nullity is void and can be declared to be void
\nby any court in which it is presented. Its nullity can be set up whenever and
\nwherever it is sought to be enforced or relied upon and even at the stage of
\nexecution or even in collateral proceedings. The executing court can, therefore,
\nentertain an objection that the decree is a nullity and can refuse to execute
\nthe decree. By doing so, the executing court would not incur the reproach that
\nit is going behind the decree, because the decree being null and void, there
\nwould really be no decree at all. Vide Kiran Singh v. Chaman Paswan (AIR<\/a> 1954 SC\n<\/p>\n
340) and Seth Hiralal Patni v. Sri Kali Nath (AIR<\/a> 1962 SC 199). It is,
\ntherefore, obvious that in the present case, it was competent to the executing
\ncourt to examine whether the decree for eviction was a nullity on the ground
\nthat the civil court had no inherent jurisdiction to entertain the suit in which
\nthe decree for eviction was passed. If the decree for eviction was a nullity,
\nthe executing court could declare it to be such and decline to execute it
\nagainst the respondent.”\n<\/p>\n
\t(e)\tIn (1990) 1 SCC 193 (Sushil Kumar Mehta v. Gobind Ram Bohra)<\/a> in
\nparagraphs 5 to 9 the Supreme Court held as follows:\n<\/p>\n
\t“5.\t……….It is the finding of the forums below that the shop in
\nquestion stands mainly on the land of the landlord and a small portion is
\nlocated on municipal land. Therefore, we are of the view that the building was
\ngoverned by the provisions of the Act and the exemption accorded by the
\ngovernment under Section 3 was not attracted to the premises. In Sadhu Singh v.
\nDistrict Board, Gurdaspur (AIR 1962 Punj 204) the question was whether to the
\nreconstructed building governed by the provisions of East Punjab Urban Rent
\nRestriction Act the exemption under Section 3 applied. It was held to be so by
\nthe Division Bench. But the present facts are different.\n<\/p>\n
\t6. In Barraclough v. Brown (1897 AC 615: 66 LJ QB 672: 13 TLR 527) the
\nHouse of Lords held that when a special statute gave a right and also provided a
\nforum for adjudication of rights, remedy has to be sought only under the
\nprovisions of that Act and the common law court has no jurisdiction.\n<\/p>\n
\t7. In Doe d. Rochester (BP.) v. Bridges ((1831) 1 B&Ad 847, 859: 109 ER
\n1001) the famous and oft quoted words of Lord Tenterdan, occur:
\n“Where an Act creates an obligation and enforces the performance in a specified
\nmanner, we take it to be a general rule that performance cannot be enforced in
\nany other manner.”\n<\/p>\n
\t8. This statement of law was approved not only by the House of Lords in
\nseveral cases, but also by this Court in Premier Automobiles Ltd. v. K.S. Wadke<\/a>
\n((1976) 1 SCC 496) where this Court was called upon to consider whether the
\ncivil court can decide a dispute squarely coming within the provisions of the
\nIndustrial Disputes Act. While considering that question, this Court laid down
\nfour propositions and third of them is relevant for consideration here. It is as
\nfollows: (SCC pp. 513-14, para 23)
\n“(3) If the industrial dispute relates to the enforcement of a right or an
\nobligation created under the Act, then the only remedy available to the suitor
\nis to get an adjudication under the Act.”\n<\/p>\n
\t9. Thus on construction of relevant provisions of the Act and in the light
\nof the position in law it must be held that the provisions of Section 13 of the
\nAct apply to the building leased out to the appellant by the landlord and the
\nController was the competent authority to pass a decree of ejectment against the
\nappellant and the civil court lacked inherent jurisdiction to take cognizance of
\nthe cause and to pass a decree of ejectment therein.  …….”\n<\/p>\n
\t(f)\tThe question arose as to whether after  enactment of the Tamil Nadu
\nBuildings (Lease and Rent Control) Act, 1960, a civil Court can order eviction
\nin the building located in the notified area, came up for consideration before
\nthe Honourable Supreme Court in the decision reported in JT 1991 (2) SC 397 :
\n(1991) 3 SCC 230 (M\/s.East India Corporation Ltd. v. Shree Meenakshi Mills Ltd.)<\/a>
\nwherein in paragraphs 7 and 10 it is held thus,
\n\t“7. Section 10 of the Act, as seen above, prohibits eviction of a tenant
\nwhether in execution of a decree or otherwise except in accordance with the
\nprovisions of that section or Sections 14 to 16. These provisions as well as the
\nother provisions of the Act are a self-contained code, regulating the
\nrelationship of parties, creating special rights and liabilities, and, providing
\nfor determination of such rights and liabilities by tribunals constituted under
\nthe statute and whose orders are endowed with finality. The remedies provided by
\nthe statute in such matters are adequate and complete. Although the statute
\ncontains no express bar of jurisdiction of the civil court, except for eviction
\nof tenants “in execution or otherwise”, the provisions of the statute are clear
\nand complete in regard to the finality of the orders passed by the special
\ntribunals set up under it, and their competence to administer the same remedy as
\nthe civil courts render in civil suits. Such tribunals having been so
\nconstituted as to act in conformity with the fundamental principles of judicial
\nprocedure, the clear and explicit intendment of the legislature is that all
\nquestions relating to the special rights and liabilities created by the statute
\nshould be decided by the tribunals constituted under it. Although the
\njurisdiction of the civil court is not expressly barred, the provisions of the
\nstatute explicitly show that, subject to the extraordinary powers of the High
\nCourt and this Court, such jurisdiction is impliedly barred, except to the
\nlimited extent specially provided by the statute. See in this connection the
\nprinciple stated by this Court in Dhulabhai v. State of M.P. ((1968) 3 SCR 662).
\nSee also Secretary of State v. Mask & Co. ((1939-40) IA 222 (PC), Raleigh
\nInvestment Co. Ltd. v. Governor General in Council ((1946-47) IA 50 (PC) and
\nBarraclough v. Brown ((1897) AC 615 (HL)).\n<\/p>\n
\t8.\t……………..\n<\/p>\n
\t9.\t……………..\n<\/p>\n
\t10.\tSignificantly, the jurisdiction of the civil court can be invoked
\nonly where the Controller comes to a decision, and records a finding, that the
\ndenial or claim by the tenant, as aforesaid, is bona fide. If the Controller
\nwere to come to the opposite conclusion, no question of invoking the
\njurisdiction of the civil court would arise. But the decision of the Controller
\nis concerned solely with the bona fides, and not the correctness or validity, of
\nthe denial or claim, for these difficult questions of title are by the statute
\nreserved for decision by the appropriate civil court which is the more competent
\nforum in such matters.   ……….”\n<\/p>\n
\t\t\t   (Emphasis Supplied)<\/p>\n
\t(g)\tIn (1993) 2 SCC 507 (Chiranjilal Shrilal Goenka v. Jasjit Singh and
\nOthers)<\/a> in paragraph 20, the Supreme Court held thus,
\n\t“20.\t………….. the probate court has been conferred with exclusive
\njurisdiction to grant probate of the will of the deceased annexed to the
\npetition (suit); on grant or refusal thereof, it has to preserve the original
\nwill produced before it. The grant of probate is final subject to appeal, if
\nany, or revocation if made in terms of the provisions of the Succession Act. It
\nis a judgment in rem and conclusive and binds not only the parties but also the
\nentire world. The award deprives the parties of statutory right of appeal
\nprovided under Section 299. Thus the necessary conclusion is that the probate
\ncourt alone has exclusive jurisdiction and the civil court on original side or
\nthe arbitrator does not get jurisdiction, even if consented to by the parties,
\nto adjudicate upon the proof or validity of the will propounded by the
\nexecutrix, the applicant.  ……..”\n<\/p>\n
\t(h)\tThe nullity of the decree is further explained in the decision
\nreported in (1993) 2 SCC 458 (Hiralal Moolchand Doshi v. Barot Raman Lal
\nRanchhoddas).   In<\/a> paragraph 8 the Supreme Court held as follows:
\n\t“8. It may be noticed that we are dealing with the question of nullity of
\na decree because the executing court is bound to execute the decree and cannot
\ngo behind the same unless the decree passed by it is a nullity. It appears,
\nthere is a lot of confusion as to what is meant by “decree being null and void”.
\nIn the context which we are dealing, a decree is said to be a nullity if it is
\npassed by a court having no inherent jurisdiction. Merely because a court
\nerroneously passes a decree or there is an error while passing the decree, the
\ndecree cannot be called a nullity. The decree to be called a nullity is to be
\nunderstood in the sense that it is ultra vires the powers of the court passing
\nthe decree and not merely voidable decree.”\n<\/p>\n
\t(i)\tWhether the decree which is a nullity can be challenged even at the
\nexecution stage, came up for consideration before the Honourable Supreme Court
\nin the decision reported in (1994) 4 SCC 370 (Jaipur Development Authority v.
\nRadhey Shyam and Others).  In<\/a> paragraphs 8 the Honourable Supreme Court held as
\nfollows:\n<\/p>\n
\t“8. The question then is, whether it is open to the appellant to raise the
\nobjections on the execution side as to allotment of acquired land under the
\naward. We have already said that what is executable is only an award under
\nSection 26(2), namely, the amount awarded or the claims of the interests
\ndetermined of the respective persons in the acquired lands. Therefore, the
\ndecree cannot incorporate any matter other than the matters determined under
\nSection 11 or those referred to and determined under Section 18 and no other.
\nSince we have already held that the Land Acquisition Officer has no power or
\njurisdiction to allot land in lieu of compensation, the decree even, if any,
\nunder Section 18 to the extent of any recognition of the directions in the award
\nfor the allotment of the land given under Section 11 is a nullity. It is open to
\nthe appellant to raise the invalidity, nullity of the decree in execution in
\nthat behalf. Accordingly we hold that the execution proceedings directing
\ndelivery of possession of the land as contained in the award is, invalid, void
\nand inexecutable. Accordingly it is set aside.”\n<\/p>\n
\t(j)\tIn the decision reported in (1996) 3 SCC 301 (Sabitri Dei and Others
\nv. Sarat Chandra Rout and Others),<\/a> it is held that the objection regarding
\ninvalidity of the decree sought to be executed can be raised at the execution
\nstage or in collateral proceedings.  In paragraph 6 it is held thus,<\/p>\n
\t“6.\t……….  Once a decree is held to be a nullity, the principle of
\nconstructive res judicata will have no application and its invalidity can be set
\nup whenever it is sought to be enforced or is acted upon as a foundation for a
\nright even at the stage of execution or in any collateral proceeding. This
\nquestion no longer remains res integra and has been so held in the case of
\nSushil Kumar Mehta v. Gobind Ram Bohra<\/a> to which one of us (brother Ramaswamy,
\nJ.) was a member. It has been held in the aforesaid case:\n<\/p>\n
“Thus it is settled law that normally a decree passed by a court of competent
\njurisdiction, after adjudication on merits of the rights of the parties,
\noperates as res judicata in a subsequent suit or proceedings and binds the
\nparties or the persons claiming right, title or interest from the parties. Its
\nvalidity should be assailed only in an appeal or revision as the case may be. In
\nsubsequent proceedings its validity cannot be questioned. A decree passed by a
\ncourt without jurisdiction over the subject-matter or on other grounds which
\ngoes to the root of its exercise or jurisdiction, lacks inherent jurisdiction.
\nIt is a coram non judice. A decree passed by such a court is a nullity and is
\nnon est. Its invalidity can be set up whenever it is sought to be enforced or is
\nacted upon as a foundation for a right, even at the stage of execution or in
\ncollateral proceedings. The defect of jurisdiction strikes at the authority of
\nthe court to pass a decree which cannot be cured by consent or waiver of the
\nparty. If the court has jurisdiction but there is defect in its exercise which
\ndoes not go to the root of its authority, such a defect like pecuniary or
\nterritorial could be waived by the party. They could be corrected by way of
\nappropriate plea at its inception or in appellate or revisional forums, provided
\nlaw permits. The doctrine of res judicata under Section 11 CPC is founded on
\npublic policy. An issue of fact or law or mixed question of fact and law, which
\nare in issue in an earlier suit or might and ought to be raised between the same
\nparties or persons claiming under them and was adjudicated or allowed
\nuncontested becomes final and binds the parties or persons claiming under them.
\nThus the decision of a competent court over the matter in issue may operate as
\nres judicata in subsequent suit or proceedings or in other proceedings between
\nthe same parties and those claiming under them. But the question relating to the
\ninterpretation of a statute touching the jurisdiction of a court unrelated to
\nquestions of fact or law or mixed questions does not operate as res judicata
\neven between the parties or persons claiming under them. The reason is obvious;
\na pure question of law unrelated to facts which are the basis or foundation of a
\nright, cannot be deemed to be a matter in issue. The principle of res judicata
\nis a facet of procedure but not of substantive law. The decision on an issue of
\nlaw founded on fact in issue would operate as res judicata. But when the law has
\nsince the earlier decision been altered by a competent authority or when the
\nearlier decision declares a transaction to be valid despite prohibition by law
\nit does not operate as res judicata. Thus a question of jurisdiction of a court
\nor of a procedure or a pure question of law unrelated to the right of the
\nparties founded purely on question of fact in the previous suit, is not res
\njudicata in the subsequent suit. A question relating to jurisdiction of a court
\nor interpretation of provisions of a statute cannot be deemed to have been
\nfinally determined by an erroneous decision of a court. Therefore, the doctrine
\nof res judicata does not apply to a case of decree of nullity. If the court
\ninherently lacks jurisdiction consent cannot confer jurisdiction. Where certain
\nstatutory rights in a welfare legislation are created, the doctrine of waiver
\nalso does not apply to a case of decree where the court inherently lacks
\njurisdiction.”\n<\/p>\n
\t(k)\tAn illegal decree cannot be executed.  What kinds of decrees are
\nexecutable, came up for consideration before the Honourable Supreme Court in the
\ndecision reported in (2004) 1 SCC 287 (Rafique Bibi v. Sayed Waliuddin), wherein
\nin paragraph 8 it is held thus,
\n\t“8. A distinction exists between a decree passed by a court having no
\njurisdiction and consequently being a nullity and not executable and a decree of
\nthe court which is merely illegal or not passed in accordance with the procedure
\nlaid down by law. A decree suffering from illegality or irregularity of
\nprocedure, cannot be termed inexecutable by the executing court; the remedy of a
\nperson aggrieved by such a decree is to have it set aside in a duly constituted
\nlegal proceedings or by a superior court failing which he must obey the command
\nof the decree. A decree passed by a court of competent jurisdiction cannot be
\ndenuded of its efficacy by any collateral attack or in incidental proceedings.”\n<\/p>\n
\t(l)\tIn AIR 2007 SC 1155 : (2007) 2 SCC 481 (National Institute of
\nTechnology v. Niraj Kumar Singh)<\/a> in paragraph 23 (in AIR) the Supreme Court held
\nthus,
\n\t“23.\t……………. It is well known that where an order is passed by
\nan authority which lacks inherent jurisdiction, the principles of res judicata
\nwould not apply, the same being a nullity. (See Chief Justice of A.P. v. L.V.A.
\nDixitulu,<\/a> (1979) 2 SCC 34  and Union of India v. Pramod Gupta,<\/a> (2005) 12 SCC\n<\/p>\n
1).”\n<\/p>\n
\t(m)\tA Division Bench of this Court in the decision reported in (2008) 4
\nMLJ 495 (Sivakalai Muthu v. State of T.N.) held that after constitution of the
\nadministrative Tribunal, the decree passed by the Civil Court altering the date
\nof birth of a Government Servant is a nullity as the jurisdiction of the Civil
\nCourt is ousted under section 28 of the Administrative Tribunals Act, 1985, with
\neffect from 5.12.1988.\n<\/p>\n
\t(n)\tIn the Division Bench decision reported in 1993 WLR 534 (Little
\nFlower Teacher Training Institutes for Men and Women, etc. v. The State of Tamil
\nNadu & three others) a question arose as to whether the Civil Court can give a
\ndirection to grant recognition to the Teacher Training Institution, when the
\nsaid power is given to the Government\/Department.  In paragraphs 3 and 4, this
\nCourt held as follows:\n<\/p>\n
\t“3.\tThe decree as such is a nullity.  The civil Court has no
\njurisdiction to decide the question of grant of recognition.  The civil court
\nshould have stopped with considering status of the petitioner-institution and
\ngiving a declaration to that effect.  It should not have proceeded to consider
\nthe question of granting recognition.  It is for the authorities to decide the
\nsame, if at all the Civil Court could only have issued a mandatory injunction
\ndirecting the authorities to consider the question and pass appropriate orders
\non the application of the petitioner for recognition.  The principle has been
\nlaid down by the Supreme Court in several cases.  Suffice it refer to one of
\nthem M\/s.Chingleput Bottlers v. M\/s.Majestic Bottling Co. (AIR<\/a> 1954 SC 1030).\n<\/p>\n
\t4.\tAs the decree of the civil court is a nullity it cannot be enforced
\nin any forum.  The respondents are entitled to set up the nullity of the decree
\nat any stage and in any proceeding (Vide Kiran Singh v. Chaman Paswan, AIR<\/a> 1954
\nSC 340).  We have already considered this question and taken this view in the
\nWrit Petition No.6289 of 1990 by our order dated 30.3.1993.”\n<\/p>\n
\t\t\t   (Emphasis supplied)<\/p>\n
\t19.\tFrom the above referred decisions it is abundantly clear that if a
\ndecree passed by the Court is wholly without jurisdiction, the same is to be
\ntreated as nullity and the said decree is not executable.  The said plea even
\nthough was raised before the Rent Controller, it was not considered by him and
\narrest of the petitioner was ordered.  Hence the petitioner is justified in
\nfiling this revision petition under Article 227 of the Constitution of India
\ninvoking the supervisory jurisdiction of this Court.\n<\/p>\n
\t20.\tThe supervisory jurisdiction of the High Court under Article 227 of
\nthe Constitution of India is explained by the Supreme Court in the decision
\nreported in (2003) 3 MLJ 60 (SC) : (2003) 6 SCC 675 (Surya Dev Rai v. Ram
\nChander Rai).  In<\/a> paragraph 21 (para 22 in SCC), the Supreme Court held as
\nfollows:\n<\/p>\n
\t“21. Article 227 of the Constitution confers on every High Court the power
\nof superintendence over all courts and tribunals throughout the territories in
\nrelation to which it exercises jurisdiction excepting any court or tribunal
\nconstituted by or under any law relating to the armed forces. Without prejudice
\nto the generality of such power the High Court has been conferred with certain
\nspecific powers by clauses (2) and (3) of Article 227 with which we are not
\nconcerned hereat. It is well settled that the power of superintendence so
\nconferred on the High Court is administrative as well as judicial, and is
\ncapable of being invoked at the instance of any person aggrieved or may even be
\nexercised suo motu. The paramount consideration behind vesting such wide power
\nof superintendence in the High Court is paving the path of justice and removing
\nany obstacles therein. The power under Article 227 is wider than the one
\nconferred on the High Court by Article 226 in the sense that the power of
\nsuperintendence is not subject to those technicalities of procedure or
\ntraditional fetters which are to be found in certiorari jurisdiction. Else the
\nparameters invoking the exercise of power are almost similar.”\n<\/p>\n
\t21.\tApplying the above law laid down by the Honourable Supreme Court and
\nhaving regard to the supervisory jurisdiction of this Court, I hold that the
\norder passed by the learned Rent Controller, ordering payment of arrears of rent
\nwithin three months while ordering eviction on the ground of wilful default, is
\nunsustainable and the consequential execution petition filed to execute that
\nportion of the decree is also not maintainable.  The ultimate order of arrest
\npassed in the execution proceeding against the petitioner cannot be sustained
\nand the same is set aside.\n<\/p>\n
\t22.\tThe civil revision petition is allowed.  It is open to the
\nrespondent to file separate suit for recovery of the rental arrears in
\naccordance with law, if the respondent is advised to do so.  No costs.
\nConnected miscellaneous petition is closed.\n<\/p>\n
vr
\nTo
\nThe District Munsif, Theni.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court K.I.M.Sajjdeen vs A.1254 on 25 February, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-210889","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nK.I.M.Sajjdeen vs A.1254 on 25 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/k-i-m-sajjdeen-vs-a-1254-on-25-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"K.I.M.Sajjdeen vs A.1254 on 25 February, 2009 - 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