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TMI Blog1989 (11) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... The application under Order 9 Rule 13 C.P.C. to set aside the ex-parte decree was dismissed on January 10, 1979, and was confirmed on appeal on August 17, 1979 and in revision by the High Court on October 15, 1979. When the landlord laid the execution application for ejectment the appellant objected under section 47 of C.P.C. contending that the decree of the Civil Court is a nullity as the premises in question is governed by the Haryana Urban (Control of Rent Eviction) Act 11 of 1973, for short the Act . The Controller under the Act is the competent forum regarding claims for ejectment on fulfilment of any of the conditions enumerated under Section 13 thereof. The Civil Court is divested of jurisdiction to take cognisance and pass a decree for ejectment of the appellant. That objection was overruled and on further revision the High Court dismissed the revision by order dated March 19, 1980. Simultaneously he also filed Writ Petition under Article 227 which was dismissed on September 30, 1988. This appeal is directed against that order of dismissal. The contention raised by Shri S.P. Goel, the learned Sr. counsel for the appellant is that by operation of Section 13 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny person who is appointed by the State Government to perform the functions of a Controller under the Act. Landlord has been defined under Section 2(c) and Section 2(f) defines rented lands to mean any land let separately for the purpose of being used principally for business or trade. Tenant has been defined under Section 2(h). Section 3 authorises the State Government by notification to exempt any particular building or rented land or any class of building or rented lands from the application of any or all the provisions of the Act. Section 13 contains the provisions for eviction of tenants, Sub-s. (1) thereof reads: Eviction of tenants--(1) A tenant in possession of a building or a rented land shall not be evicted therefrom except in accordance with the provisions of this section. The other provisions are not necessary. The sole ground raised by the landlord for eviction was that the appellant had committed default in the payment of rent and thereby had became liable for ejectment. Accordingly, he issued a notice under Section 106 of the Transfer of Property Act determining the tenancy and laid this suit. Section 13 gives the right to the landlord to seek eviction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In Doe v. Bridges, [1831] 1 B Ad. 847 at 859 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. This statement of law was approved not only by the House of Lords in several cases, but also by this Court in Premier Automobiles v. K.S. Wadke, [1976] 1 SCR 427 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: (3) If the industrial dispute relates to the enforcement of a fight or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act. Thus on construction of relevant provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ullities. On merits it was held that since the appellant himself had invoked the jurisdiction of the Civil Court with under valuation, the objection as to jurisdiction was not available by operation of Section 99 of the Code and as to the territorial jurisdiction he was precluded by operation of Section 21 of C.P.C.; and on such premise it was held that the decree of the District Court could not be treated to be a nullity and person who invoked the jurisdiction cannot plead prejudice to himself by his own act. This Court has held that it is a well established principle that a decree passed by a court without jurisdiction is a nullity and the plea can be set up whenever and wherever the decree is sought to be enforced or relied upon, and even at the stage of execution or in collateral proceedings. In the case of Ferozi Lal Jain v. Man Mal Anr., AIR 1979 SC 794 the facts were that the appellant was the owner of a shop. One of the covenants under the lease was that the lessee respondent should not sub-let the shop. On the ground that the respondent had sub-let the shop, a suit was laid for eviction under Section 13 of the Delhi and Ajmer Rent Control Act, 1952. The matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be a nullity. In Ledgard v. Bull, [1886] Law Report, 13 AC, 134 the Privy Council laid down that where the original Court in a suit was inherently lacking jurisdiction, and was incompetent to try the same, on its transfer by consent of parties, to a Court with jurisdiction such consent did not operate as a waiver of the plea of want of jurisdiction. In Bartan v. Fincham, [1921] 2 Kings Bench Division, 291 at 299 it was held that: Parties cannot by agreement give the Courts jurisdiction which the Legislature has enacted they are not to have The Court cannot give effect to an agreement whether by way of compromise or otherwise, inconsistent with the provisions of the Act. In Peachery Property Corporation v. Robinson, [1966] 2 All Eng. Report 981 at 983 Winn, Lord J. took the same view. In Choudari Rama (dead) per L.R. Choudhary Ganapathi v. Qureshi Bee, [1983] 2 Andhra Law Times 133 one of us Ramaswamy, J. was called upon to consider the question on a set of similar facts. Therein the petitioner who died subsequently was protected under A.P. (Telangana Area) Tenancy and Agricultural Holdings) Act, 1950. The protected tenant was given possession in exercise o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat context, in negating the contention, this Court held that the doctrine of res judicata belongs to the domain of procedure. It cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact relating to the right in dispute between the parties has been determined thereby. A decision of a competent Court on a matter in issue may be res judicata in other proceedings between the same parties. The matter in issue may be an issue of fact. The fact decided by a competent Court is final determination between the parties and cannot be re-opened between them in another proceeding. The previous decision on a matter in issue alone is res judicata. The reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other. The claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislature, it does not operate as res judicata. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman Ors., [1970] 1 SCC 670 a Bench of three Judges of this Court consisting of Shah, J., as he then was, Hegde and Grover, JJ. was considering the question of nullity of a decree. The facts therein were that the appellant, owner of the plot of land, leased out the same to the respondent at an annual rental of ₹ 411. The suit was dismissed and on appeal it was reversed and suit was decreed. On revision it was confirmed by the High Court. Special leave petition filed in this Court was also dismissed. In the execution the contention was raised that the Small Causes Court had no jurisdiction to entertain the suit. It was contended that the decree was a nullity on the ground that Bombay Rents Hotel and Lodging House Rates (Control) Act 57 of 1947 applied to the facts in that case. In that context Shah, J., as he then was, speaking for the Court held that challenge to a decree which is a nullity can be raised at any time, but the Court executing the decree cannot go behind the decree between the parties or on their representation it cannot entertain any objection that the decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter to arbitration through Court, which had jurisdiction, he would be deemed to have waived the objection as to the territorial jurisdiction of the Court. Therefore, it is not a nullity and the appellant was held to be estopped from challenging the jurisdiction of the Bombay High Court. The ratio therein does not apply to the facts of this case. The case of Phool Chand Sharma Ors. v. Chandra Shanker Pathak Ors., [1963] SCR Suppl. 2 828 also does not help the respondent. It was a case where the suit was decreed and possession was taken thereunder. On appeal by the respondent it was dismissed. On Second Appeal before the Board of Revenue the matter was com- promised, whereunder Ramprasad was recognised as a tenant of the land in dispute and the order of eviction was thus nullified. When he made an application under Sec. 144 C.P.C. for restitution it was resisted by the tenants subsequently inducted on the ground that the respondent was inducted as tenant by the decreeholder, and the decree does not bind them. This was upheld by the trial court and on appeal. A writ petition was also dismissed on merits. The decree became final. The order of the High Court under Art. 227 bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sec. 11 C.P.C. 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 stat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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