Suman Vs Vithal Rama Power and Others

@JUDGMENTTAG-ORDER

1. This is a revision by the decree-holder against the order dated 6-2-1985 passed by the Prl. Munsiff, Chikodi, in Ex. Petition No. 20/84 directing the decree-holder to hand over possession of the suit property to the judgment-debtors (''J-Drs.'' For short).

2. The decree-holder filed a suit against the JDrs. in O.S. 217/79 for possession of the premises situate in Chikodi alleging that the JDrs. were tenants under her and that the ,tenancy had been terminated by her. The I decree ordering eviction of the JDrs, was passed in the said suit on 28-8-82. The JDrs., being aggrieved by the said judgment and decree, filed an appeal in R.A. 44/82 on the file of the Civil Judge, Chikodi. The Civil Judge, Chikodi, dismissed the appeal on 16-81983 and thereby confirmed the decree of eviction passed by the Massif.

3. The JDrs. approached this Court in RSA 214/84. The said second appeal was dismissed by this Court on 3-4-1984 at the, stage of admission itself.

4. Thereafter the decree-holder sued out the execution in Ex. 20/84 and obtained an order for delivery of possession of the property to her. In pursuance of the order passed by the executing Court, it appears that the Amen of the Court handed over possession of the property to the decree holder.

5. The JDrs. filed an application I.A. 2 under O. 37, R. I read with S. 47 and S. 151, C.P.C. alleging that the Court of the Civil Judge which was the lower appellate Court, had no jurisdiction at all to pass an order of eviction because the provisions of the Karnataka Rent Control Act were made applicable to Chikodi Town with effect from 31-12-1982. They alleged that on account of the application of the provisions of the Rent Control Act to Chikodi Town, the Civil Judge who constituted the lower appellate Court, had ceased to have any jurisdiction to pass or affirm the decree of eviction. They further urged that this Court had no jurisdiction on 3-4-84, when R.S.A. 2,14/84, came before it, to dismiss the appeal it the stage of admission. They contended that it was a case of want of inhere rent jurisdiction and, therefore, any decree passed by a Court suffering from want of inhere rent jurisdiction, is void abs initial and it cannot be executed.

6. Thereafter when 1A. 2 filed by the JDrs. was pending, the decree-holder in a very shrewd manner filed a memo stating that the decree had been satisfied and the satisfaction may be entered. It was also objected by the JDrs. contending that their application I.A. 2 related to the discharge, satisfaction and execution of the decree and that, therefore, the memo should not be accepted. The Massif rejected the contentions raised by the decree-holder and ordered the redelivery of the property to the JDrs. This order is challenged by the decree-holder in this revision.

7. That the provisions of the Rent Control Act were made applicable to Chikodi Town with effect from 31-12-1982, is not in dispute. The provisions of the Rent Control Act make it abundantly clear that it is only the Court constituted under the Karnataka Rent Control Act that could entertain a petition for eviction under S. 21 of the Act. Thus, the provisions of the Rent Control Act oust the jurisdiction of the ordinary Civil Courts in matters of eviction governed by the Rent Control Act. Thus, on account of the extension of the provisions of the Rent Control Act to Chikodi Town with effect from 31-12-1982, the jurisdiction of the ordinary Civil Court to order eviction in respect of a premises situate in Chikodi was taken away. Therefore, the Civil Court at Chikodi. Had no jurisdiction at all to pass an order of eviction in respect of premises situate at Chikodi, with effect from 31-12-1982.

8. R.A. 44/82 was disposed of by the Court of Civil Judge on 16-8-1983 i.e., long after the provisions of the Rent Control Act were made applicable to Chikodi Town.

9. In Uttam Veranekar Vs. Shattu Laxman Donkari, , this Court held "In order to make the pending proceedings legal it was stated by. The Legislature that the Amendment Act came into force on 31-12-82. Therefore, the mention that the Act shall be deemed to have come into force on 31-12-1982 will not make the Act effective only from 31-12-82. The substitution of the schedules shall be taken as though the schedules were in existence from the very inception of the Act. Once S. 4 speaks about substitution, the said substitution shall be deemed to be on the anvil of the Act since the coming into force of the very Act itself. It is undisputed that as per the schedules now substituted, Angol comes within the limits of the Belgium City Corporation. Therefore, the provisions of the Rent Control Act are applicable."

This Court further held :

"There is no question of a right vested in the party in view of the simple principle of law that the matter will be governed by the law as it stands when the matter comes up for final d'' opal of the Court. The law that is applicable today is the law mentioned in the Karnataka Rent Control Act as amended by Act No. 17 of 1983."

This Court, while laying down the said percale, has referred to and followed the principles laid down in Ram Singha and Another Vs. Shankar Dayal and Another ; Lakshmi Narayan Guin and Others Vs. Niranjan Modak, ; Shamarao V. Parulekar Vs. The District Magistrate, Thana, Bombay and Others, : Doddannavar Bros. Vs. Malathibai, and Sadiq Sab Vs. Akhilandamma, . The Supreme Court has held in the said Lakshminarayan''s case as :

"Where the decree for eviction is passed by the trial Court against the tenant under the provisions of the T.P. Act and the statute giving protection to tenant against eviction is extended to the concerned area during tendency of appeal against the decree for eviction, the appellate Court is bound to take into account the change of law and to extend its benefit to the tenant and consequently to set aside the decree of the trial Court and dismiss the suit. A change in the law during the tendency of an appeal has to be taken into account and will govern the rights of the parties.

The word "decree" occurring in S. 13 (l) of the Act does not refer to the decree of the trial Court or, where an appeal has been preferred, to the appellate decree. Plainly, reference is intended to the decree which disposes of the suit finally. It is well settled that when a trial Court decrees a suit and the decree is challenged by a competent appeal, the appeal is considered as a continuation of the suit, and when the appellate decree affirms, modifies or reverses the decree on merits, the trial Court decree is said in law to merge in the appellate decree, and it is the appellate decree which rules. The object of sub-sec. (1) of S. 13 is to protect the possession of the tenant, subject to the exceptions specified in the sub-section and that protection is ensured if the sub-section is construed to mean that, subject to those exceptions, no effective or operative order or decree can be made by the Court in a landlord''s suit for possession against a tenant. Therefore, sub-sec. (1) of S. 13 of the Act can be invoked by a tenant during the tendency of an appeal against a trial Court decree."

Supreme Court has further stated as :

"Sub-sec. (1) of S. 13 directs the Court not to make any order or decree for possession subject, of course, to the statutory exceptions. The legislative command in effect deprives the Court of its unqualified jurisdiction to make such order or decree. It may be that when the suit was instituted the Court possessed the jurisdiction and could pass a decree for possession. But it is divested of that jurisdiction when the Act is brought into force in a particular area. The language of the sub-section makes that abundantly clear and regard must be had to its object."

Therefore, in view of the said Supreme Court decision the law that should be applied to the facts of the particular case is the law which was prevailing on the date when the matter came up for decision finally. In the said case also, the provisions of the W.B. Premises Tenancy Act (12 of 1956) were made -applicable to the area in question during the tendency of the appeal. The Supreme Court held that in view of the extension of the Tenancy Act to the particular area, during the tendency of the appeal, the ordinary Civil Court lost its jurisdiction to pass a decree for eviction under the general law or provisions of the T.P. Act. The Supreme, Court further laid down the principle that it is ultimately the decree passed by the appellate Court that would be the subject matter of the execution.

9A. Learned Author Mulla in his C.P.C. 14th Edition has said at page 620 as:

"The expression "suit" in this section includes execution proceedings, from which it follows that if a suit is of the nature cognizable by a Small Cause Court, no second appeal will lie from an order in execution of the decree passed in the suit, unless the value of the suit exceeds Rest 500, now Rest 3000. It is immaterial that the order in execution is made by a Court other than a Court of Small Causes or a Court vested with the powers of a Small Cause Court, as where the property attached in execution of the decree is immovable property and the order in execution is made by a First Class Subordinate Judge in the ordinary jurisdiction. The test is, what was the nature of the suit in which the decree sought to be executed was passed, and not the nature of the proceedings in execution."

9B. Learned Counsel Sri Visweswara submitted that the point of want of inhere rent jurisdiction ought to have been raised by the judgment-debtors (JDrs) either in the first appellate Court or in this Court and that they not having done so, their contention in this regard would be barred by rest judicata. The plea of want of inhere rent jurisdiction has been raised by the JDrs. in this case in the course of the execution. In my opinion that is the only proper forum for the JDrs. to raise such a plea 0because amended S. 47 of C.P.C. bars a suit. In view of the bar of the suit created by the amended S. 47, a party cannot file Separate proceedings or suit challenging the decree on the ground that the Court which passed the decree had no jurisdiction. Therefore, the executing Court is the only proper forum in which such a plea could / be raised and it should properly adjudicate, such a plea. Similar situation arose in Muhammad Sukri Sahib v. Teleport Mohave Koru AIR 1949 Mad 809. The Madras High Court held :

"Where unaware of the amendment of C 1. 8, Non-Residential Building Rent Control Order, 1942 made on 11th July, 1944, the Court passes an ejectment decree against a tenant, the executing Court cannot execute the decree. Clause 8 as amended prohibits the decree-holder from filing the execution petition in the Court, his only way of evicting the tenant being to file an application before the Rent Controller. There is no question of amendment coming into force during the tendency of proceeding and the retrospective operation of the amendment. During the period between the passing of the decree and filing of the execution petition it cot be said that there is any pending proceeding. The Court is only concerned with the right of the decree-holder to execute his decree, which the Court is prohibited from doing by reason of the amended Cl. 8. Where the executing Court not being aware of this amendment gives possession to the decree-holder, it can subsequently, the amendment being brought to its notice, set aside the order under S. 151, C.P.C."

Similar is the principle laid down in Shah Bhojraj Kuverji Oil Mills and Ginning Factory Vs. Subbash Chandra Yograj Sinha, . It has been laid down in Kiran Singh and Others Vs. Chaman Paswan and Others, as:

"It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is- in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties."

10. Therefore, in my opinion, a decree passed by the lower appellate Court under the provisions of the Transfer of Property Act suffers from want of inhere rent jurisdiction and it goes to the root of the, matter and, therefore, the decree passed by the first appellate Court is void abs initial for want of inhere rent jurisdiction. The decree passed by this Court in RSA. 214/84 also suffers from want of inhere rent jurisdiction. Therefore, the decree passed by this Court also is a nullity and void abs initial. When the decree is prima facie void abs initial, the question of applicability of rest judicata does not, arise at all because if is no decree at all. Therefore, the said argument advanced bill Sheri Visweswara also merits to be rejected.

11. Learned Counsel Sri Visweswara relied on Satyadhyan Ghostly v. Smt. Deorajin AIR 1969 SC 941. The want of inhere rent jurisdiction was not apparent on the face of the record in the said case. It required further investigation. The present case is one where the want of inhere rent jurisdiction is apparent on the face of the record itself. Therefore, the said decision also would not be applicable to the facts of the present case. He then relied on Ahmed Khan Vs. Mohamad Khasim Sab, It is laid down in the said case as ''lack of inhere rent jurisdiction goes to the root of competence of Court to try such a case and renders decree a nullity. When a decree which is a nullity is sought to be executed, an objection in that behalf may be raised in a proceeding for execution. When the decree is made by a Court which has no inhere rent jurisdiction to make, an objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. Where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of record and requires examination of the question, raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction''. In the present case want of inhere rent jurisdiction is apparent on the face of record and, therefore, the said principle laid down in Ahmed Khan''s case would not be of much help in the present case. He, then, referred me to Shiva Rao Vs. Cecilia Pereira, . In the said case it was held :

"From a plain reading of the sub-section it becomes obvious that the prohibition contained therein operates prospectively, that is, after the sub-section is made operative by bringing it into force. A Court or an authority cannot make an order or a decree for recovery of possession of a premises in favor of a landlord against the tenant because of, the sub-section, in any suit or petition filed, therefore only to the extent either of them is pending without being decided upon till then. However, the language of the sub-section does not permit the placing upon it a construction which would suggest that an order or a decree for the recovery of possession of a premises made in favor of a landlord against the tenant by a Court or an authority, before the coming into force of that sub-section, cannot subsequent to its coming into force, be executed or given effect to, by such a Court or such an authority when sub-sec. (1) of S. 21 of the Act does not extend its restriction to orders or decrees for recovery of possession already made, it is difficult to hold that sub-sec. (1) of S. 21 of the Act should be construed as including a restriction relating to execution of an order or a decree for recovery of possession of a premises from a tenant made before the'' coming into force of that provision of the Act."

Further, in the said decision, the ruling reported in Lakshmi Narayan Guin and Others Vs. Niranjan Modak, was not referred to. In view of the said Supreme Court decision, the. Ruling in Shiva Rao Vs. Cecilia Pereira, , cannot be said to hold the floor.

12. Janaki Vs. Rama Bangera, . It is stated in the said case as :

"Not withstanding the language employed to bring the amendment to the statute, the Courts must see whether the intention of the legislature is to bring the amended provision into operation retrospectively or prospectively. If that test is to be applied, there is nothing in the Amendment Act other than the employment of the word ''substitution'' that is meant to be retrospective i.e. there is no express provision made, except what is mentioned in sub-sec. (2) of S. I of the Amendment Act, viz. "it shall be deemed to have come into force on the thirty-first day of December, 1982." In other words, the legislature did not intend the amendment to be effective from a date earlier than the specified date in 1982."

It has been further held therein as:

"The language used in S. 21 of the principal Act is that no Court shall pass a decree for eviction notwithstanding anything to the contrary contained in any other law or contract. A decree is neither law nor a contract. Therefore, the decree validly passed prior to the commencement of the Amendment Act is a valid decree executable when there is no inhibition in law for such execution. The words ''no order or decree for the recovery of possession of any premises shall be made'' in S. 21 of the principal Act must be held to be in future. Therefore, the Amendment Act itself being prospective and not retrospective, that was not the intention of legislature in fact. By any process known to Courts it is not possible to interpret the'' Amendment in question to have the effect of nullifying or invalidating the decree passed prior to amendment."

It was further held therein as :

"What the Executing Court does is nothing more than giving effect to the decree that has become final. Such giving effect to the decree does not amount to continuation of the suit."

In the said Janice''s case, if were was no appeal. The decree appears to have become final before the application or extension of the provisions of the Rent Control Act. Therefore, the said Janice''s case (ILR (19861 Kar 973) would not be of any help in this case.

13. But, as already stated above, the execution would be a continuation of the proceeding or the suit itself. When that is so, whether the decree sought to be executed was one passed prior to the coming into force of the Rent Act or whether it had become final prior to the application of the amended provision, the position does not change. Even decrees which have become final prior to the application of the amended provisions become unexcitable.

14. Learned Counsel Sri Visweswara contended that the principle of merger of a decree cannot be urged in order to throttle the execution proceedings. It is no doubt a general rule of law. As laid down by Supreme Court in Lakshmi Narayan Guin and Others Vs. Niranjan Modak, it is only the final decree which disposed of the matter finally that would rule the rights of the parties. Supreme Court held that the appellate Court is bound by those amended provisions. It may be that the Massif Court while it passed the decree had jurisdiction to pass the decree'', because the Rent Control Act was not applicable to Chickadee at that time. It is only the subsequent event that strikes at the root of the argument advanced by learned counsel Sri Visweswara. Therefore, the said argument propounded by Sri Visweswara does not, in my opinion, hold the floor at all.

15. He then relied on Ratan Mala Mondal and Another Vs. Gopal Lal Daga and Others, . It was a case decided under S. 38 of C.P.C. The question of want of inhere rent jurisdiction did not arise at all in that case. The principle : laid down in the said ruling is although it is true that technically the decree of the trial Court merges in the decree of the appeal Court, it cannot be said that even when the decree of the trial Court is affirmed in appeal the decree of the trial Court is wiped out for all purposes. The said Calcutta decision would not be applicable to the facts of the present case, because the decree passed by the first appellate Court itself is void abs initial. He then relied on State of U.P. v. Mohamad Nooh AIR 1958 SC 86. It was not a case where the question of want of inhere rent jurisdiction was involved. However, Supreme Court has laid down as, but for the purposes of the present case, it is sufficient to point out that even if we assume that there was some defect in the procedure followed at the trial, it does not follow that the trial Court acted without jurisdiction. There is a basic difference between want of jurisdiction, and, our, attention hag - not been drawn to any authority in which mere non-compliance with the rules of procedure has been made a ground for granting one of the writs prayed for. Therefore, the said decision will not help him. The principle of merger of decree cannot be applied in a case where the decree suffers from want of inhere rent jurisdiction. Therefore, the submission of learned counsel Sri Visweswara in this regard is unacceptable.

16. In the result the revision is dismissed. No costs.

17. At this stage learned counsel Visweswara submitted that his client desires to approach Supreme Court and that the operation of the decree may be stayed for one year. One year would be too long. Interest of justice would be met if the operation of the order is stayed till the end of December, 1986. The operation of this order is stayed till the end of December, 1986.

18. Revision dismissed.