Indermull Loniya Vs Subordinate Judge, Secunderabad and others

@JUDGMENTTAG-ORDER

Kumarayya, J.@mdashThis is a petition for the issue writ of certiorari filed in December 1953 which the advent of the Hyderabad House (Rent, Ex and Lease) Control Act, 1954, was converted revision petition. The facts out of which this party arises date as far back as the year 1942. The (sic) dents represent the firm known as "The Secunderabad Commercial and Banking Company", and, other things, they carry on cinema business. petitioner Sait Inder Lonia is a lessee of the pr(sic) No. 8573, Distillery Road, Secunderabad which had taken from the trustees Srikishen Gopikishen May, 1940, and was running a cinema therein.

The premises had seating arrangements by the trustees but the cinema equipment be (sic) to Indermul. He, on 26-11-1942, under a le(sic) three years with effect from 15-1-1943 rent the cinema premises with furniture and cinema agreement to the respondents. The rent agreed up Rs. 1,000 for the first year, Rs. 1,100 for the year and Rs. 1,150 for the third year. A certain section of this rent was specified for the cinema house out-houses and the remaining portion as rent mature and fixtures in each of the said years, expiry of the lease period, it appears Indermul self wanted to run the cinema and therefore for eviction. After due notice, he applied to the Controller under S. 8 (2) of the Hyderabad Re (sic)trol Order, 1353, F. for permission to take (sic) tion against the applicants which was the then open to him.

The present respondents resisted this petition the ground that this was a devise for compelling to pay exorbitant rent for an old cinema equipment which was practically worn out. The Rent Court accepted the plea advanced by the respondent dismissed the petition. Sait Indermul prefer appeal to the First Taluqdar of Baghaat. A (sic) arose whether cinema equipment fell under (sic) nation of ''furniture'' within the meaning of S. (sic) Rent Control Order. Sait Indermul''s contend it the furniture and R. C. A. film equipment were reparable adjuncts of cinema premises and that therefore they formed part of one lease transaction. The First Taluqdar held that the cinema equipment (sic)med part of the premises and that the applicants (sic) to pay. arrears of rent and hire, otherwise they (sic) be liable to be evicted.

The decision was given on 9th February 1356 F. responding to 6-2-1947. The petitioners respondents thereafter applied to the Rent Controller for section of fair rent under Ss. 3, 4 and 5 of the Rent control Order. It was stated inter alia that the cinema pigment was old and as such its rent as originally (sic) should be reduced. Sait Indermul resisted the (sic) on the ground that this point was already co-(sic)ed by the decision of the Taluqdar which operation as res judicata. This plea did not find favour with Rent Controller. Sait Indermul went in appeal to First Talukdar who held that the petition for rent was barred by res judicata. The respondents moved the High Court for the issue of a write certiorari.

The High Court quashed the order of the First Talukdar and returned the file to the Rent Controller for proper disposal of the application. Someone before this, on 17-3-1948, R. 10 of the Rent control Order underwent an amendment. As. a re-(sic) trust and endowed properties were exemption from the operation of the Rent Control Order. The petitioner did not raise any plea of jurisdiction on this ground before the High Court. However after the return of the file, he in his countered (sic)22-11-1950 without specifying the ground on (sic)h the question of jurisdiction lay pleaded that Rent Control Order did not apply to the pre-(sic)s in question.

2. Later on, however, this was clarified on (sic)-1952 in a fresh counter filed with the person of the Court. The Rent Controller rejected plea on the ground that the amendment was reactive and not retrospective and fixed Rs. (sic) is the fair rent for the premises inclusive of furniture and cinema equipment. Both the parties filed (sic) appeals before the Appellate Authority. The rent fixed was further reduced to Rs. 600 per (sic)h by the said Authority. Aggrieved by this, Indurmul has come up to this Court.

3. The main ground stated in the petition is the Rent Controller had no jurisdiction to fix rent after the amendment of S. 10 of the Hyderabad House Rent Control Order and further that provisions of the House Rent Control Order before conflict with those of the Indian Contract and Transfer of Property Act, are void under (sic)54 of the Constitution of India. On 7-12-1956, her plea was raised to the effect that the lease both of the land, furniture and talkie equipment does not come within the purview of the Hyderabad House Rent Control Order 1353 F. or the new Act, viz., Hyderabad House (Rent, eviction and Lease) Control Act, 1954, and the Rent controller therefore had no jurisdiction to fix the fair (sic)

Thus the question of jurisdiction has been on two grounds, namely, that being a trust party under the provisions of S. 10 of the Rent control Order the Rent Controller had no juridical and that the lease being of composite nature can not be brought under the operation of the Control Order and the Hyderabad House (Rent, eviction and Lease) Control Act. The learned counsel the respondents sought to meet this plea on legal grounds, one based on the doctrine of (sic) and the other on res judicata. It was also that the amendment of S. 10 of the Rent Control Order being prospective did not apply to (sic) suits.

4. I will first take up the question of estoppel. The facts relevant to these contentions have been set out at length in the earlier part of the judgment. It would appear that the respondents had stated at the very outset during the course of the eviction proceedings that the cinema equipment did not come within the definition of furniture to be covered by S. 2 of the Rent Controller Order. But the applicant insistently stated and finally succeeded in his plea that cinema equipment formed part of the furniture of the premises and the Rent Controller had jurisdiction. Consequently the respondents, at the peril of being evicted had to pay the rent and were obliged subsequently to apply for fixation of fair rent which was the only way out of what they thought an inequitable position. The question, therefore, is when the petitioner has thus driven him to seek remedy before the Rent Control Authority, can be be permitted to take an inconsistent position and dispute the jurisdiction of the Rent Controller.

5. The learned counsel for the petitioner relying on Minakshi Naidu v. Subramanya Sastri, ILR 11 Mad 26 (PC) (A), and Ledgard v. Bull, ILR 9 All 191 (PC) (B), argued that the parties cannot by anything that they do confer on or take away jurisdiction from any Court or tribunal. If, on a true interpretation of the lease, the Rent Controller had no jurisdiction, no amount of estoppel against the party can validate or give judicial force to the orders passed without jurisdiction.

6. Against this, relying on several cases, it was contended that a party who successfully took a plea and got a judgment in his favour cannot be allowed to take an inconsistent position in any action arising out of the said judgment. It is evident from the facts of the case that though the respondents had taken a plea that the hiring of furniture and machinery and lease of the premises are two distinct transactions and that as the machinery was old and worn out, they are entitled to return the same the petitioner insisted that there was only one transaction, one lease and one property and all one unit coming under the definition of R. 2 of the Rent Control Order.

He however, did succeed in this plea with the result that the respondents were forced to retain both to avoid eviction from the premises and they were obliged to bring a fresh action for assessment of fair rent. In this action, the petitioner did not set up a plea of jurisdiction at any earlier stage of the proceedings on the ground that the lease is of a composite nature but he has done so for the first time before this Court during the course of arguments. But evidently, this was the very plea which he had seriously contested in his previous proceeding which led to the present action. He cannot be allowed to take inconsistent position now on any principle of law and justice. The general rule of estoppel governing such cases is laid down by Bigelow on Estopped in the following words :

If parties in Court were permitted to assume inconsistent position in the trial of their causes, the usefulness of Courts of justice would in most cases be paralysed, the coercive process of the law available only between those who consented to its exercise, could be set at naught by all. But the rights of all men, honest and dishonesty are in the keeping of the Courts and consistency of proceedings is therefore required of all those who come or are brought before them. It may accordingly be laid down as a broad proposition that one who, without mistake induced by the opposite party, has taken a particular position deliberately in the course of litigation must act consistently with it; one cannot play fast and loose.

7. It was stated at another place that

The principle under consideration will apply to another suit than the one in which the action was taken where the second suit grows out of the judgment of the first. It is laid down that a defendant who obtains judgment upon an allegation that a particular obstacle exists cannot in a subsequent suit based upon such allegation deny its truth.

It is useful to note Justice Mukherjea''s observations in Hemanta Kumari Devi Vs. Prasanna Kumar Datta, which are to the following effect :

It is well settled that a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate, to the detriment of his opponent; and that this wholesome doctrine applies not only to the successive stages of the same suit, but also to another suit other than the one in which the position was taken up, provided the second suit grows oat of the judgment in the first.

8. This principle has been applied by the Bench of the Allahabad High Court consisting of Sulaiman and Pullan, JJ., even to cases where the question involved is one of jurisdiction - Ram Khelawan Singh and Others Vs. Maharajah of Benares, . In this case, the party upon whose objection an appeal was returned by the Commissioner for presentation to the proper Court was estopped from raising the question of jurisdiction later on, as, by his objection before the Commissioner, he had accepted the jurisdiction of the High Court as the proper forum of appeal. There is preponderance of judicial authority in support of this proposition that the doctrine of estoppel applied even to cases involving the question of jurisdiction. In the Nagpur case, " AIR 1929 79 (Nagpur) it was held that where a person had successfully opposed an application under S. 47, Civil Procedure Code, on the ground that that section did not apply, cannot subsequently raise a plea in a suit consequently brought by the applicant that the suit was barred by section.

This view was based on the doctrine of estoppel. The case in AIR 1931 123 (Oudh) was also one where the question of jurisdiction was involved. The plaintiff had to file a civil suit, as the defendant before the Revenue Board had succeeded in his plea that the Board of Revenue had no jurisdiction to try the cause. In the Civil Court he turned round and denied the truth of the plea that he put forward in the revenue Court. The High Court repelled the contention on the ground that the defendant was estopped from denying its truth when, on account of this very plea the other party was compelled to file the plaint in the civil Court for adjudication. Udrej Singh and Another Vs. Ram Bahal Singh and Others, , is another case in support of the contention of the respondents that if the parties have taken up a particular position before the Court, at one stage of the litigation, it is not open to them to resile from that position.

In Ramnarain v. Sheochand 6 DLR Pat 128, the question was whether revision or appeal was the proper remedy. Originally, a revision petition was filed against an order passed under S. 151, Civil Procedure Code. The opposite party contended that no revision lay as the order was appealable. The Court allowed the contention and dismissed the revision. Then an appeal was filed. In this appeal, a contrary plea that revision lay was set up by the party. It was hold that though the order under S. 151 is not appealable, it was not open to the opposite party to turn round and say that no appeal lay when he had successfully persuaded the Court at one time that no revision lay against the order.

Aiyathurai Pillai v. Gnanaprakash Odayar, 52 Ind Cas 829 : (AIR 1919 Mad 1172) (H) is again a case involving the question of jurisdiction where the doctrine of estoppel was invoked. In suit instituted on the Small Cause side of the Munsif''s Court, the defendant had successfully pleated want of jurisdiction and the plaint was return for presentation on the ordinary side. Against the decree of the District Munsif, an appeal was preferred before the Subordinate Judge. Then a revision petition was filed against the decree of the Judge. The plea taken now is quite inconsisted with that taken before the District Munsifs Court when the suit was filed on the Small Cause said Relying on ILR 9 All 191 (PC) (B), it was argument that since jurisdiction cannot be conferred by (sic) sent or by pleading of the parties, the plea taker an earlier stage cannot be a bar to a consideration of the question of jurisdiction.

The learned Judges of the Madras High Court held that the party was not entitled at a later start to object to the jurisdiction of the Court which had himself designated as the proper for Hakim Syed Shah Khurshed Ali Vs. Commr. of Tirhut Division and Another, is another case on the jurisdiction. In an action for eviction, the defendant had pleaded that the civil Court had no jurisdiction because of the bar of the provision in the Rent Control Act. He succeeded therein. In the (sic) control proceeding, later on, he raised the plea the Rent Controller has no jurisdiction to order eviction. It was observed that as a matter of principal the party denying the jurisdiction and succeeded in the plea cannot deny the truth of the plea (sic) subsequent proceeding before another tribunal which as a result of the success of the defendant plea, the other party was forced to apply.

9. The following observations of Lord Ship referred to in Krishna Yachendra v. Province Madras AIR 1947 Mad 5(2) at p. 12 (J), throw (sic) sufficient light on the policy and principle involved this doctrine :

In the opinion of their Lordships, it is set(sic) first, that the admission of a fact fundament the decision arrived at cannot be withdrawn and fresh litigation started, with a view of obtained another judgment upon a different assumption fact; secondly, the same principle applied not to an erroneous admission of a fundamental but to an erroneous assumption as to the legal (sic) party of that fact. Parties are not permitted to (sic) fresh litigations because of new views they mater-tain of the law of the case, or new versions (sic) they present as to what should be a proper (sic) pension by the Court of the legal result eith (sic) the construction of the document or the weight certain circumstances. If this were permitted gat-ion would have no end, except when legal Genuity, is exhausted.

On principle and authority, therefore, it mu(sic) held that the petitioner who had successfully the plea that the Rent Controller had jurisdiction cannot now be allowed to deny the truth of the plea. It may be pointed out here that the (sic) relied on by the petitioner for a contrary view not in fact involve the question of estoppel only relate to the circumstances under which can or cannot be a waiver of right to comply want of jurisdiction. Thus the belated plea by the learned advocate on the basis of a (sic) Ruling in Raja Chetty v. Jagannathadas AIR Mad 284 (K), as to the composite nature of the cannot be entertained.

10. The next question for consideration whether, on account of the subsequent among of para. 10 of the Rent Control Order where 1st property was excluded from the jurisdiction the Rent Controller, the pending petition for fair at ought to have been dismissed in limine. It may be noted, however, that the petitioner did not (sic) any such plea before the High Court which did remanded the case for further trial to the Rent controller. The counsel for the respondents on rent ground relying on Subodh Gopal Bose Vs. Brojendra Kishore Roy, contends that such plea is barred by constructive res judicata.

In this case referred to, the suit filed was to on a subsequent change of Law; but no plea is taken, when the appeal was pending before the supreme Court and the Supreme Court had remanded the appeal for further enquiry. When the case (sic) up before the High Court, the plea under the remanded law was advanced but the High Court remanded the same on the ground that as it was not (sic) before the Supreme Court, it was barred by constructive res judicata.

11. The learned counsel has also a second (sic) or argument against the maintainability of (sic) plea. It is urged that since the amendment of (sic) 10 is prospective and not retrospective, it not affect the pending proceedings which will taken to their final determination as though such amendment did not exist in the case. In this constructive on the parties have cited various authorities and against this proposition. The arguments (sic) revolve on the point that the Court has the for to take into consideration the subsequent and grant relief to the other suitor on the law existed at the time of the passing of the decree.

The same principle applied to the Court of apply in as much as the appeal is in the nature of a hearing of the case and the appellate Court should into consideration the facts that came into nee subsequent to the decree. This principle equitable principle which must be applied only (sic) g regard to the particular circumstances of the In Rai Charan v. Biswanath, AIR 1915 Cal (M), Justice Mukherjea has stated the scope and of this well recognised principle in the follow words :

A suit must be tried in all its stages on the of action as it existed on the date of its insti(sic)

...The Court may take of events which have happened since the ins(sic) of the suit and afford relief to the parties basis of the altered conditions.

12. This doctrine as also observed in AIR 1948 1 (Nagpur) of an exceptional character and is applied (sic)s where it is shown that the ''original relief (sic) has, by reason of subsequent change of (sic)tances, become inappropriate, or, that it is (sic)ry to base the decision of the case on the circumstances in order to shorten litigation (sic)o complete justice between the parties.

13. The contention of the respondents is (sic)ce the right to have fair rent fixed had ac(sic) them long before the amendment, it can (sic)ost in the absence of any express provision effect and further that a right to continue instituted suit to its final termination is in (sic)re of a vested right which cannot be de(sic)save by express or implied intendment of (sic)re. Various rulings have been cited in of the rival contentions. Almost all deal powers of the Court to give adequate re(sic) the suitors in view of the changed circumstance after the filing of the suit. These are in(sic)owers which the Courts are called upon to to advance the cause of justice.

But, as discussed above, in'', exercise of the same, the basic principle that every suit must be tried on the cause of action at the time of the suit cannot be ignored. This basic rule, with the above exception, is recognised in various cases and is in1 accord with the observation of Lord Kingsdown in Anundmoyee v. Sheeb Chunder 9 Moo Ind App 287 (PC) (O). Thus a Court has powers to give relief in suitable cases according to law prevailing at the time of the decree, though not at the time of the suit but it is important to note that the Court must take care not to disturb settled or completed transactions or the vested rights which the legislature did not intend to interfere with. These are the principles which seem to govern all the decisions referred to me by both parties. It is sufficient to refer to decisions of the Madras High Court in Narayanaswamy v. Inspector of Police AIR 1949 Mad 307 (P), and Ganapathy Raja Valia Raja of Edapally, Sivaroopam Vs. The Commr. for Hindu Religious and Charitable Endowments, Madras and Others, in this connection.

In the former case, it was held that the right of a suitor to have his pending application disposed of by a competent Court is a matter of right and not of procedure and when the law is altered during the pendency of the action, the rights of the parties must be decided according to law as it existed when the action was begun unless the new statute shows a clear intention to vary Such right. It was further observed that a statute cannot be construed so as to have a greater retrospective operation than the language renders it necessary. The same principle was stated in Ganapathy Raja Valia Raja of Edapally, Sivaroopam Vs. The Commr. for Hindu Religious and Charitable Endowments, Madras and Others, and it was observed that a party has a vested right to have a suit tried in the forum in which it was commenced. Such a right is a substantive one and not in the realm of procedural law. No doubt it is open to the legislature to defeat such vested right but the language used to have this effect should be strong and distinctive.

14. The amendment of para. 10 introduces a bar to the jurisdiction of the Rent Controller only in relation to houses the income of which has been set apart for charitable or educational purposes. This amendment was made on 17th March, 1948 and is no doubt prospective as there is nothing to suggest that it has any retrospective effect. The trust property is the premises of which the petitioner is a lessee. What the petitioner has leased to the respondents is his leasehold interest which is not the subject-matter of trust. Machinery which also was given on rent, is admittedly not the trust property. The question, under these circumstances, is, whether the amended provision of the Rent Control Order divests the Rent Controller of the jurisdiction that he possessed and takes away from him a case of which he has seisin.

That a Court cannot be divested of jurisdiction to hear a pending case notwithstanding the amendment of law, unless it expressly provides so, is well settled by the decision of the Federal Court in AIR 1943 24 (Federal Court) . In that case it was held that notwithstanding separation of Burma from British India during the continuance of the suit, a British Indian Court could continue the hearing of the suit even though some of the property belonged to Burma territory. Thus it is clear that unless the amendment of law indicates clearly, a right to continue the suit cannot be taken away. In the instant case, assuming the leasehold interest which was leased to the respondents together with machinery is the Trust property as contemplated by the amended section inasmuch as the amendment is not retrospective even by its necessary implication, the jurisdiction of the Rent Controller will continue.

15. There is a further point to be considered in this particular case. The Rent Control Order was an emergency measure and a temporary Act passed under the Defence of Hyderabad Regulation. It had outlived its purpose. It will be deemed to have lapsed on or about September 1946, as held in the Full Bench judgment in Pannalal v. State of Hyderabad AIR 1954 Hyd 129 (FB) (S). Thus having regard to this judgment, the Rent Control Order itself will not be said to be in force at the time the amendment was passed. But S. 31 of the Hyderabad House (Rent, Eviction and Lease) Control Act, 1954, has come to rescue of the lapsed Act and a provision has been made that whatever orders made or purported to have been made, any decision or direction given or deemed or purported to have been given, any notification issued or deemed or purporting to have been issued, any action or proceeding taken or deemed or purporting to have been taken, "so far as may be" deemed to be made, given, issued, taken or clone under the provisions of the Hyderabad House (Rent, Eviction and Lease) Control Act.

Thus the validity or otherwise of the acts done or decisions passed under the lapsed Rent Control Order will be judged in the light of the provisions of this new Act. Section 26 of this Act provides that the Act will not apply to any person or institution which the Government may, by general or special order, exempt. There is no provision this Act that any such house as contemplated 1 the amendment to S. 10 relied upon by the petitioner has been exempted by the operation of the Act. Under these circumstances, it is argued the the provisions of S. 10 of the Rent Control Order cannot be availed of under the Hyderabad House (Rent, Eviction and Lease) Control Act to dispute the jurisdiction of the Rent Controller.

In my opinion, inasmuch as the proper other than the trust property also was the subject matter of dispute before the* Rent Controller, had jurisdiction, as discussed above, to fix a rent. The mere fact that leasehold interest who is not trust property by itself but related to property falling under S. 10 of the Rent Con Older was included in the suit, his jurisdiction d not come to an end. At any rate, that does appear to be the intendment of the amen para. 10. Above all, judged by the provisions the new Act, no question of want of jurisdiction arises. On these grounds. I reject the plea advanced on behalf of the petitioner. No other (sic) relating to the merits of the case has been ra(sic) before me. The result is that the revision fails is hereby dismissed. In the circumstances, t(sic) will be no order as to costs.