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TMI Blog1990 (12) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 21 for a limited-tenancy for five years from 6.4.1978 was itself marred by a fraudulent suppression of material facts; that the permission, in effect, was merely a ex-post facto sanction of a subsisting tenancy which had earlier come into existence on 5.3.1978 and that, therefore, the appellants were not entitled to the benefit of Section 21. The High Court relied upon a pronouncement of this Court in Subhash Kumar Lata v. R.C. Chhiba AIR1989SC458 to support its view that the nullity of the order Under Section 21 obtained by fraud could be urged in defence against execution. 3. We have heard Sri Rajinder Sachhar, learned Senior Counsel for the appellants and Sri Avadh Bihari Rohtagi, learned Senior Counsel for the respondent-tenants. Special Leave is granted. The necessary and material facts, briefly stated, are these: Appellants and the respondents by their joint application to the Rent Controller sought for and obtained permission for a limited-tenancy for five years Under Section 21. Respondents not having surrendered possession upon the expiry of the said period of five years, the appellants commenced proceedings for re-delivery. Respondents resisted the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that the other requisite indicium of tenancy, namely, the stipulation of a consideration was absent and that the latter finding being a pure question of fact, the High Court, in exercise of its jurisdiction Under Section 39 which permitted an appeal only on a substantial question of law, could not reappreciate evidence and upset the finality of that finding of fact; (ii) that, at all events, even if the limited-tenancy Under Section 21 was obtained despite the subsistence of a tenancy created earlier, the Respondents were bound to assail the validity of the limited-tenancy during its subsistence and not as a collateral plea in the course of execution, as held in J.R. Vohra v. Indian Export House Pvt. Ltd. [1985]2SCR899 ; Inder Mohan Lal v. Ramesh Khanna [1987]3SCR765 ; Joginder Kumar Butan v. R.P.Oberoi, [1987]3SCR937 ; Shiv Chander Kapoor v. Amar Bose AIR1990SC325 and Yamuna Maloo v. Anand Swarup [1990]1SCR715 . 6. On the first contention, Sri Sachhar said that the High Court approached the matter as if in general appellate jurisdiction which clearly was not the scope and amplitude of an appeal Under Section 39 of the Act. It was urged that the finding of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of law'. We might as well examine this. 8. What is a substantial question of law would certainly depend upon facts and circumstances of every case and if a question of law had been settled by the highest court of the country that question however important and difficult it may have been regarded in the past and however large may be its effect on any of the parties, would not be regarded as substantial question of law. In Raghunath Prasad v. Deputy Commissioner of Partabgarh [1927] 54 LA. 126 the Judicial Committee observed that a question of law to be considered a substantial question of law need not be one of general importance and it could be a substantial question as between the parties . This Court had occasion to consider the views expressed on the point by the High Courts of Bombay, Nagpur and Madras in Kaikhushroo Pirojsha Ghaira v. C.P. Syndicate Ltd. [1948] 1. Bom. L.R. 744 ; Dinkarrao v. Rattansey, I.L.R. (1949) Nag. 224 and Rimmalapudi Subba Rao v. Noony Veeraju I.L.R. 1952 Mad. 264 respectively placing differing emphasis on what was a substantial question of law between the parties. It was held by this Court that while the view taken by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration this Court, referring to and excerpting from Chitty on Contracts, said: It is necessary to appreciate clearly the distinction between the two classes of contracts where the consideration is either executed or executory. An executed consideration consists of an act for a promise. It is the act which forms the consideration... In an executed consideration the liability is outstanding on one side only; it is a present as opposed to a future consideration. In an executory consideration the liability is outstanding on both sides. It is in fact a promise for a promise; one promise is bought by the other. If the contract has been fully and completely performed on both sides, no question of any further rights and liabilities under the contract is likely to arise. If, however, the contract is one in which the consideration is executed on one side, there will be a right no one side and an outstanding liability on the other. If the consideration is executory on both sides, there will be outstanding rights and liabilities on both sides. (emphasis supplied) [See: Union of India v. Chaman Lal Co . [1957]1SCR1039 ] The proposition that reciproca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eroi [1987]3SCR937 ; Shiv Chander Kapoor v. Amar Base AIR1990SC325 and Yamuna Maloo v. Anand Swarup [1990]1SCR715 some of which are pronouncements of larger benches than the one that decided Subhash Kumar Lata's case. Shri Sachar submitted that the learned Judge who spoke for the bench in Subhash Kumar Lata's case had himself in Joginder Kumar Butan v. R.P. Oberoi [1987]3SCR937 reiterated the rule in Vohra's case and said: ...It was observed by this Court in J.R. Vohra v. India Export House, that the remedy available to a tenant in a case where there was only a ritualistic observance of the procedure while granting permission for the creation of a limited tenancy or where such permission was procured by fraud practised by the landlord or was a result of collusion between the strong and the weak, would be for the tenant approaching the Rent Controller during the currency of the limited tenancy itself for adjudication of his pleas as soon as he discovers facts and circumstances that tend to vitiate ab initio the initial grant of permission and not to wait till the landlord makes his application for recovery of the premises, after the expiry of the period fixed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down that a tenant who assails the permission Under Section 21 on the ground that it was procured by fraud - a ground not dissimilar to the one urged in the present case - must approach the Rent Controller during the currency of the limited-tenancy for an adjudication of his pleas as soon as he discovers facts and circumstances which, according to him, vitiate the permission. It was held that whether it was a mindless order or one procured by fraud practised by the landlord or was the result of a collusion between landlord and tenant there was no justification for the tenant to wait till the landlord made his application for recovery of possession but there was every reason why the tenant should have made an immediate approach to the Rent Controller to have his pleas adjudicated as soon as facts and circumstances giving rise to such pleas came to his knowledge. The reason why this requirement was built-in working the rights and obligations Under Section 21 was the need to re-concile and harmonise certain competing claims that arise in administering the scheme of Section 21. This Court, referring to those competing claims observed: What then is the remedy availa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court as to the limitations on the permissible challenge to the exercise of jurisdiction Under Section 21, any appeal to the remedy based on concept of nullity and collateral attack is inappropriate. Suffice it to say that in a collateral challenge the exercise is not the invalidation of a decision, but only to ascertain whether the decision exists in law at all and to rely upon incidents and effect of its non-existence . The authority of decided cases is to the effect that the permission granted must be presumed to be valid till set aside. Doctrine of collateral challenge will not apply to a decision which is valid ex-hypothesi and which has some presumptive existence, validity and effect in law. Such a decision can be invalidated by the right person in right proceedings brought at the right time. It is only a nullity stemming from lack of inherent jurisdiction or a proceeding that wears the brand of invalidity of its forehead that might afford a defence even against enforcement. Shri Sachhar is right in his contention that such a collateral challenge may not be available where there is no lack of inherent jurisdiction but what is disputed is only the existence or no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own.... But in a very great number of cases it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights... (emphasis supplied) The contention of Shri Rohtagi as to this particular remedy being available to a tenant in such circumstances is, in the ultimate analysis, not as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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