Full Judgment Text
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PETITIONER:
SUSHIL KUMAR METHA
Vs.
RESPONDENT:
GOBIND RAM BOHRA
DATE OF JUDGMENT10/11/1989
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
MISRA RANGNATH
SAWANT, P.B.
CITATION:
1989 SCR Supl. (2) 149 1990 SCC (1) 193
JT 1989 Supl. 329 1989 SCALE (2)1104
ACT:
Haryana Urban Rent Control Act, 1973--Section 13--Con-
troller has exclusive jurisdiction to order eviction Civil
Court inherently lacks jurisdiction to entertain suit for
eviction.
Code of Civil Procedure 1908: Section 11 and 47 Order 9,
Rule 13--Jurisdiction determination of--Court without juris-
diction passing decree-nullity ,and non est--Does not oper-
ate as res judicata.
HEADNOTE:
The respondent had filed a suit before the Senior Sub
Judge, against the appellant for ejectment and recovery of
arrears of rent and damages for use and occupation of the
shop, let out to him. The suit was decreed ex parte on
October 20, 1977. 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 7,
1979 and later in revision by the High Court.
When the respondent-landlord took out execution proceed-
ings for ejectment of the appellant-tenant, he objected
under Section 47 of Code of Civil Procedure contending that
the decree passed by the civil court was a nullity, as the
premises in question was governed by the Haryana Urban
(Control of Rent and Eviction) Act 11 of 1973. According to
him the Controller under the Act was the competent authority
regarding claims for ejectment and by necessary implication,
the civil Court was divested of jurisdiction to take cogni-
sance and pass a decree for ejectment. That objection was
overruled and further revision to the High Court also
failed. Simultaneously the appellant had also filed a writ
petition under Art. 227 of the Constitution which was also
dismissed. Hence this appeal by the appellant-tenant by
special leave.
Allowing the appeal, this Court,
HELD: Normally a decree passed by a court of competent
jurisdiction after adjudication on merits of the rights of
the parties, operates as res judicata in a subsequent suit
or proceedings and binds the parties
150
or the persons claiming right, title or interest from the
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parties. Its validity should be assailed only in an appeal
or revision as the case may be. In subsequent proceedings,
its validity cannot be questioned. [162G]
A decree passed by a court without jurisdiction over the
subject matter or on other grounds which goes to the root of
its exercise of jurisdiction, lacks inherent jurisdiction.
It is a coram non judice. A decree passed by such a court is
a nullity and is non est. Its invalidity can be set up
whenever it is sought to be enforced 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. [162H; 163A]
(See Kiran Singh & Ors. v. Chaman Paswan & Ors., [1955]
1, SCR 117: Ferozi Lal Jain v. Man Mal & Anr., AIR 1979 SC
794: Bahadur Singh v. Muni Subrat Dass, [1969] 2 SCR 432;
Smt. Kaushalya Devi & Ors. v. K.L. Bansal, AIR 1970 SC 838;
Chandrika Misir & Anr. v. Bhaiya Lal, [1973] 2 SCC 474;
Ledgard v. Bull, [1886] Law Report, 13 AC 134; Bartan v.
Fincham, [1921] 2 K.B. Division, 291 at 299; Peachery
Property Corporation v. Robinson, [1966] 2 All E.R. 981,983;
Choudari Rama (dead) per L.R. Choudharv Ganapathi v. Qureshi
Bee, [1983] 2 Andhra Law Times 133 approved;)
A question relating to jurisdiction of a court or inter-
pretation of provisions of a statute cannot be deemed to
have been finally determined by an erroneous decision of a
court. Therefore the doctrine of res judicata does not apply
to a case of decree of nullity. If the court inherently
lacks jurisdiction consent cannot confer jurisdiction. Where
certain statutory rights in a welfare legislation are creat-
ed, the doctrine of waiver also does not apply to a case of
decree where the court inherently lacks jurisdiction.
[163F-G]
(See Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai
N.B. Jeejeebhey, [1970] 3 SCR 830; Tarini Charan Bhattacher-
jee’s case I.L.R. 56, Cal. 723).
It is the Controller under the Act that has exclusive
jurisdiction to order ejectment of a tenant from a building
in the urban area leased out by the landlord. Thereby the
civil court inherently lacks jurisdiction to entertain the
suit and pass a decree of ejectment. [164A]
(See Barrachlough v. Brown, [1897] A.C. 615; Doe v. Bridges,
151
[1831] 1, B & Ad. 847 at 859; Premier Automobiles v. K.S.
Wadke, [1976] 1 SCR 427.
Therefore in the instant case, though the decree was
passed and the jurisdiction of the court was gone into in
issue Nos. 4 and 5 at the ex parte trial, the decree there-
under is a nullity and does not bind the appellant. There-
fore it does not operate as res judicata. The courts below
have committed grave error of law in holding that the decree
in the suit operated as res judicata and the appellant
cannot raise the same point once again at the execution.
[164B]
Hari Prashad Gupta v. Jitender Kumar Kaushik, [1982]
Vol. 84, Punjab Law Reporter, 150; Sadhu Singh v. District
Board, Gurdaspur & Anr., [1962] Punjab Law Reporter, Vol.
64, 1; Vasudev Dhanjibhai Modi v. Rajabhat Rabdul Rehman &
Ors., [1970] 1 SCC 670; Seth Hiralal Patni v. Sri Kali Nath,
[1962] 2 SCR 747; Phool Chand Sharma & Ors. v. Chandra
Shankar Pathak dr Ors., [1963] SCR Suppl. 2 828; Mohanlal
Goenka v. Benoy Krishna Mukherjee & Ors., [1953] SCR 377.
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4599 of
1989.
From the Judgment and order dated 16.9.1988 of the
Punjab and Haryana High Court in Review Application 22-CII
of 1988 in Civil Revision No. 2439 of 1980.
S.P. Goel, G.B. Singh and K.K. Mohan for the Appellant.
S.M. Ashri for the Respondent.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. Special leave granted.
This appeal under Article 136 arises against the order
dated Sept. 16, 1988 of the High Court of Punjab & Haryana
refusing to review the order dated August 11, 1988 made in
Civil Revision No. 2439/80 on its file. The facts leading to
the decision are that the respondent Govind Ram, the father
of the respondents/landlord laid the suit No. 118/77 (ini-
tially numbered as O.S. No. 276/75) on the file of Sr. Sub
Judge for ejectment and recovery of arrears of rent and
damages for use and occupation of the shop in Gurgaon, let
out to the appellant/tenant. The suit was originally laid in
the Court of Sub
152
Judge, IIIrd Class, Gurgaon, which was transferred later to
the Sr. Sub Judge, Gurgaon, which was decreed ex-parte on
October 20, 1977. 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 eject-
ment 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 dis-
missed the revision by order dated March 19, 1980. Simulta-
neously 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 the only authority to pass a decree of ejectment
of the appellant tenant is the Controller under the Act and
by necessary implication the jurisdiction of the Civil Court
is ousted. The Civil Court lacked inherent jurisdiction to
take cognisance of the cause and to pass a decree. The
decree is thus a nullity. The challenge to a decree on the
ground of nullity can be raised at any stage and even in
execution. The courts below have committed manifest error of
law in not considering the legal question in its proper
perspective. The shop consists of the original building
belonging to the landlord, but a small part thereof in the
frontside was constructed on municipal land. Tenancy of the
building is governed by the Special Act and, therefore, the
decree of the Civil Court is a nullity and is inexecutable.
Shri Ashri, the learned counsel for the respondents refuted
this contention. Firstly he argued that the leave applica-
tion is barred by limitation. Secondly, he contended that
the appellant had raised the plea of want of jurisdiction at
the trial. Though he remained ex-parte, the trial court
considered the objection under issue Nos. 4 and 5 and over-
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ruled the objection. The decree became final; thereby the
decree operates as res judicata. He also further contends
that the Act does not apply to the building in question.
Under Section 3, municipal land is exempted from the provi-
sions of the Act and thereby the only forum to lay the
action is the Civil Court. The Civil Court having jurisdic-
tion has validly granted the
153
decree. The decree having been allowed to become final, it
is not open to the appellant to ask the executing court to
go behind the decree
The question that emerges is whether the Civil Court
lacked inherent jurisdiction to entertain the suit for
ejectment of the appellant-tenant and the decree so passed
is a nullity. The Act was enacted with the object of con-
trolling the increase of rent of buildings and rented lands
situated within the limits of urban areas and "the eviction
of the tenants therefrom". Section 2(a) defines ’building’
which means any building or a part of a building let for any
purpose whether being actually used for that purpose or not,
including any land ........................appurtenant to
such building .................... but does not include a
room in a hotel, hostel or boarding house. Section 2(b)
defines ’Controller’ as any 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 notifica-
tion 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 posses-
sion 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 determin-
ing the tenancy and laid this suit. Section 13 gives the
right to the landlord to seek eviction of the tenant for
default in the payment of rent. The Act provides the protec-
tion of continued tenancy and remedy of ejectment for breach
of covenants in the lease and other statutory grounds as
provided. It provides that the remedy and the forum and the
decree of ejectment passed by the Controller or the appel-
late authority or the revisional authority or confirmation
thereof either in appeal or revision is final under the Act.
Thereby the exclusive jurisdiction to take cognisance of the
cause of action for ejectment of the tenant from a building
or rented land situated in urban areas is governed by the
provisions of the Act and is
154
exclusively to be dealt with under Section 13 of the Act. By
necessary implication the jurisdiction of the Civil Court
under Section 9 of C.P.C. is excluded. It is undoubtedly
true that open land is a part of the frontage of the shop
and belonged to the municipality which the landlord had
taken on lease from the Municipality. As regards the munici-
pal land, the landlord was a lessee of the Municipal Commit-
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tee. But on construction of the building covering a portion
of the municipal land the landlord became landlord and the
appellant his tenant for the purposes of the Act. This view
was held by the full Bench of the Punjab and Haryana High
Court in Hari Parshad Gupta v. Jitender Kumar Kaushik,
[1982] Vol. 84, Punjab Law Reporter, 150. We agree with the
view. Thereby though there is a notification issued by the
State Government exempting the lands belonging to Gurgaon
Municipality from the provisions of the Act, the building of
the respondent does not get exempted from the provisions of
the Act. It is the finding of the forums below that the shop
in question stands mainly on the land of the landlord and a
small portion is located on municipal land. Therefore, we
are of the view that the building was governed by the provi-
sions of the Act and the exemption accorded by the Govern-
ment under Section 3 was not attracted to the premises. In
Sadhu Singh v. District Board, Gurdaspur & Anr., [1962]
Punjab Law Reporter, Vol. 64, 1 the question was whether to
the reconstructed building governed by the provisions of
East Punjab Urban Rent Restriction Act the exemption under
Section 3 applied. It was held to be so by the Division
Bench. But the present facts are different.
In Barrachlough v. Brown, [1897] A.C. 615 the House of
Lords held that when 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 en-
forces the performance in a specified manner,
we take it to be a general rule that perform-
ance 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
155
within the provisions of the Industrial Disputes Act. While
considering that question, this Court laid down four propo-
sitions 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 creat-
ed under the Act, then the only remedy avail-
able to the suitor is to get an adjudication
under the Act."
Thus on construction of relevant provisions of the Act
and in the light of the position in law it must be held that
the provisions of Section 13 of the Act applies to the
building leased out to the appellant by the landlord and the
Controller was the competent authority to pass a decree of
ejectment against the appellant and the Civil Court lacked
inherent jurisdiction to take cognisance of the cause and to
pass a decree of ejectment therein. The next question is
whether the impugned decree is a nullity and whether the
plea can be raised in execution and further whether the
decree in the suit does not operate as res judicata.
In Kiran Singh & Ors. v. Chaman Paswan & Ors., [1955] 1 SCR
117 = AIR 1954 SC 430 the facts were that the appellant had
undervalued the suit at Rs.2,950 and laid it in the court of
the Subordinate Judge, Monghyr for recovery of possession of
the suit lands and mesne profits. The suit was dismissed and
on appeal it was confirmed. In the second appeal in the High
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Court the Registry raised the objection as to valuation
under Section 11. The value of the appeal was fixed at
Rs.9,980. A contention then was raised by the plaintiff in
the High Court that on account of the valuation fixed by the
High Court the appeal against the decree of the court of the
Subordinate Judge did not lie to the District Court, but to
the High Court and on that account the decree of the Dis-
trict Court was a nullity. Alternatively, it was contended
that it caused prejudice to the appellant. In considering
that contention at page 121, a four Judge Bench of this
Court speaking through Vankatarama Ayyar, J. held that:
"It is a fundamental principle well-estab-
lished that a decree passed by a Court without
jurisdiction is a nullity, and that its inva-
lidity 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 jurisdic-
tion, whether it is pecuniary or territorial,
or whether it is in respect of the subject-
matter of the
156
action, strikes at the every authority of the
Court to pass any decree, and such a defect
cannot be cured even by consent of parties. If
the question now under consideration fell to
be determined only on the application of
general principles governing the matter, there
can be no doubt that the District Court of
Monghyr was coram non judice, and that its
judgment and decree would be nullities."
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 avail-
able 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 prin-
ciple that a decree passed by a court without jurisdiction
is a nullity and the plea can be set up whenever and wherev-
er 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 was compromised and a compro-
mise decree was passed. Twice time was given for delivery of
the vacant possession by the respondent. On his failure to
deliver vacant possession the appellant filed execution to
recover possession. The tenant raised the objection that
unless any one of the grounds prescribed under Section 13 of
the Rent Control Act was satisfied, the decree even on
compromise was a nullity, and therefore, he could not be
evicted. This Court held that the order made did not show
that it was satisfied that the sub-letting complained of had
taken place, nor was there any other material on record to
show that it was so satisfied. It is clear from the record
that the Court had proceeded solely on the basis of the
compromise arrived at between the parties. That being so
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there was hardly any doubt that the Court was not competent
to pass the impugned decree. Hence the decree under execu-
tion must be held to be a nullity. On that basis it was held
that the objection could be
157
raised even at the execution stage. Ultimately, the decree
was held to be void.
In Bahadur Singh v. Muni Subrat Dass, [1969] 2 SCR 432
the decree under execution was made on the basis of an award
and it was held that the decree was passed in contravention
of section 13(1) of the Rent Control Act. Thereby the decree
was held to be void and hence no execution could be levied
on the basis of the void decree. A similar view was also
taken by this Court in Smt. Kaushalya Devi & Ors. v. K.L.
Bansal, AIR 1970 SC 838. This was also a case under the
Delhi and Ajmer Rent Control Act and was on the basis of a
compromise. It was held that the decree passed on the basis
of the award was in contravention of Section 13(1) of the
Act as the Court had passed the decree without satisfying
itself that any good ground of eviction existed. Therefore,
the decree for delivery of possession was held to be a
nullity and could not be executed. This is also a decision
by a Bench of three Judges speaking through Sikri, J. as he
then was.
In Chandrika Misir & Anr. v. Bhaiya Lal, [1973] 2 SCC
474 Palekar J. speaking for a Bench of two Judges held that
the decree passed by the Civil Court in relation to matters
governed by U.P. Zamindari Abolition and Land Reforms Rules,
1952 for possession was a nullity and in the appeal it was
for the first time permitted to be raised in this Court and
the decree was declared 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 incompe-
tent 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.
158
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 Ramas-
wamy, J. was called upon to consider the question on a set
of similar facts. Therein the petitioner who died subse-
quently was protected under A.P. (Telangana Area) Tenancy
and Agricultural Holdings) Act, 1950. The protected tenant
was given possession in exercise of statutory power under
Section 38-A of that Act. That was done during the pendency
of the suit for partition between the co-sharers. The tenant
was impleaded co-nominee defendant to the suit. A prelimi-
nary decree for partition and for possession was passed. A
final decree followed. The decree became final and execution
was levied for possession. Objection was taken that since
the tenant was a protected tenant under the Act, the decree
was a nullity and could not be executed against the legal
representatives. After considering the scope of relevant
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provisions of the Act, it was held that the Civil Court
cannot go into the legality or correctness of the Exhibit
B-I issued by the Tehsildar. The revenue authorities consti-
tuted under that Act were competent to go into the validity
thereof. Civil Court inherently lacked jurisdiction and the
decree of ejectment of the protected tenant from the lands
covered by the protected tenancy was a nullity because of
the provisions of Chapter IV of the Act. The plea can be set
up even at the stage of execution, as was rightly done in
that case. Otherwise it would have the effect of nullifying
the operation of the statutory provisions in Chapter IV of
the Act and deprived the protected tenant of his vested
interest in the land created in his favour under the tenancy
certificate (Ex. B-I). It was also held in paragraph 64 that
"Its validity can be assailed in the execution proceedings."
We approve the view of the High Court.
In Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai N.B.
Jeejeebhey, [1970] 3 SCR 830 the Bench consisting of Shah,
CJ., Hegde and Grover, JJ. was called upon to consider
whether a decree passed without jurisdiction operates res
judicata. The facts therein were that the respondent leased
out the land for construction of a building to the appel-
lant, which was duly constructed. The tenant applied for
fixation of the standard rent. The Civil Court rejected the
prayer holding that the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947 does not apply to the open
land let out for construction. But later the High Court
reversed that view in another decision and held that the Act
applied to the open land leased out. Relying upon that
judgment, an application was again filed for fixation of the
standard rent of the
159
premises. Objection was raised that the earlier rejection
operated as res judicata. In that context, in negating the
contention, this Court held that the doctrine of res judica-
ta 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 interpreta-
tion 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 decid-
ed 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, cannot be
deemed to be a matter in issue. When it is said that a
previous decision is res judicata, it is meant that the
right claimed has been adjudicated upon and cannot again be
placed in contest between the same parties. A previous
decision of a competent Court on facts which are the founda-
tion of the right and the relevant law applicable to the
determination of the transactions which is the source of the
right is res judicata. A previous decision on a matter in
issue is a composite decision; the decision of law cannot be
dissociated from the decision on facts on which the right is
founded. A decision on an issue of law will be res judicata
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in a subsequent proceeding if it be the same as in the
previous proceeding, but not when the cause of action is
different, nor when the law has since the earlier decision
been altered by a competent authority, nor when the decision
relates to the jurisdiction of the Court to try the earlier
suit nor when the earlier decision declares valid a transac-
tion which is prohibited by law:
"A question of jurisdiction of the Court, or
of procedure, or a pure question of law unre-
lated to the right of the parties to a previ-
ous suit, is not res judicata in the subse-
quent suit. Rankin, CJ., observed in Tarini
Charan Bhattacherjee’s I.L.R. 56 Cal. 723
case:--
"The object of the doctrine of res judicata is
not to fasten upon parties special principles
of law as applicable to them inter se, but to
ascertain their rights and
160
the facts upon which these rights directly and
substantially depend; and to prevent this
ascertainment from becoming nugatory or pre-
cluding the parties from reopening or recon-
testing that which has been finally decided."
"A question relating to the jurisdiction of a
Court cannot be deemed to have been finally
determined by an erroneous decision of the
Court. If by an erroneous interpretation of
the statute the Court holds that it has no
jurisdiction, the question would not, in our
judgment, operate as res judicata. Similarly,
by an erroneous decision if the Court assumes
jurisdiction which it does not possess under
the statute, the question cannot operate as
res judicata between the same parties, whether
the cause of action in the subsequent litiga-
tion is the same or otherwise."
(Emphasis
supplied)
In that case it was held that since it relates to the
jurisdiction of the Court as per law declared by the legis-
lature, 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 Rs.411. The suit was dismissed and on appeal it
was reversed and suit was decreed. On revision it was con-
firmed by the High Court. Special leave petition filed in
this Court was also dismissed. In the execution the conten-
tion was raised that the Small Causes Court had no jurisdic-
tion 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 was incorrect in law or on facts,
unless it is set aside by an appropriate proceeding in
appeal or revision. A decree even if it be erroneous is
still binding between the parties. In that context it was
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held that the question whether the Court of Small Causes had
jurisdiction to entertain the Suit depended upon
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the interpretation of the terms of the agreement of lease,
and the use to which the land was put at the date of the
grant of the lease. These questions cannot be permitted to
be raised in an execution proceedings so as to displace the
jurisdiction of the Court which passed the decree. It was
further held that for the purpose of determining whether the
Court which passed the decree had jurisdiction to try the
suit, it is necessary to determine facts relevant to the
issue on which the question depends, and the objection does
not appear on the face of the record, the executing Court
cannot enter upon an enquiry into those facts. It is seen
that on the facts in that case it is for the first time the
executing Court is to adjudicate upon the terms of the lease
whether the Court of Small Causes had jurisdiction to enter-
tain that suit. It is not a case of interpretation of the
statutory provisions or inherent lack of jurisdiction. It is
already seen that in fact for the first time this Court in
Chandrika Misir’s case (supra) had to go into the statutory
provisions though no case in that regard had been set up in
the courts below and held that the Civil Court lacked inher-
ent jurisdiction to pass the decree. Therefore, the ratio in
this case is not in conflict with the view taken by this
Court.
It is no doubt true that in Seth Hiralal Patni v. Sri
Kali Nath, [1962] 2 SCR 747 the facts were that the suit was
instituted on the original side of the Bombay High Court
against the appellant for recovery of certain arrears out of
transactions taking place at Agra. The dispute was referred
to arbitration. The arbitrator gave his award in favour of
the respondent which was upheld on appeal by the High Court.
In execution proceedings an objection was raised by the
appellant that the Bombay High Court has no jurisdiction to
entertain the suit to make the award a decree of the Court
as no part of the cause of action had arisen within its
territorial jurisdiction. Therefore, the decree was without
jurisdiction. It was held that since the parties had agreed
to refer the matter to arbitration through Court, which had
jurisdiction, he would be deemed to have waived the objec-
tion as to the territorial jurisdiction of the Court. There-
fore, 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-
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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
became final. Then against the order of the Board of Revenue
an appeal under Art. 136 was filed in this Court. A prelimi-
nary objection was raised that the decision of the High
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Court under Art. 227 operated as res judicata. In that
context it was held by this Court that the appeal was barred
by res judicata as the decision of the High Court was on
merits and would bind the parties unless it was modified or
reversed in appeal or by other appropriate proceedings. The
facts are clearly distinguishable.
The case of Mohanlal Goenka v. Benoy Krishna Mukherjee &
Ors., [1953] SCR 377 is also of little assistance to the
respondent. The decree passed by the Calcutta High Court on
its original side was transferred for execution to the Court
of Subordinate Judge of Asansol with proper certified copy
of the decree and order of transmission. The execution
application was dismissed for default and a certificate was
sent under Sec. 41 C.P.C. stating that the execution case
was dismissed for default without transmitting the decree or
the covering letter sent by the High Court. The decree-
holder again applied for execution. It was accordingly
executed. Then an application to set aside the sale was made
under Order 21 Rule 90 C.P.C. on the ground that the decree
is a nullity and the Court had no jurisdiction to execute
the decree. While negating the contention it was held that
since the decree sent was not transmitted it would be re-
garded as a fresh application for execution and, therefore,
the executing Court had jurisdiction and the decree was not
a nullity. That case also is not one of inherent lack of
jurisdiction.
Thus it is settled law that normally a decree passed by
a Court of competent jurisdiction, after adjudication on
merits of the rights of the parties, operates as res judica-
ta in a subsequent suit or proceedings and binds the parties
or the persons claiming right, title or interest from the
parties. Its validity should be assailed only in an appeal
or revision as the case may be. In subsequent proceedings
its validity cannot be questioned. A decree passed by a
Court without jurisdiction over the subject matter or on
other grounds which goes to the root of its exercise or
jurisdiction, lacks inherent jurisdiction. It is a corum non
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judice. A decree passed by such a Court is a nullity and is
non est. Its validity can be set up whenever it is sought to
be enforced 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 statute touching the jurisdiction of
a Court unrelated to questions of fact or law or mixed
questions does not operate as res judicata even between the
parties or persons claiming under them. The reason is obvi-
ous; a pure question of a law unrelated to facts which are
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the basis or foundation of a right, cannot be deemed to be a
matter in issue. The principle of res judicata is a facet of
procedure but not of substantive law. The decision on an
issue of law founded on fact in issue would operate as res
judicata. But when the law has since the earlier decision
been altered by a competent authority or when the earlier
decision declares a transaction to be valid despite prohibi-
tion by law it does not operate as res judicata. Thus a
question of jurisdiction of a Court or of a procedure or a
pure question of law unrelated to the right of the parties
founded purely on question of fact in the previous suit, is
not res judicata in the subsequent suit. A question relating
to jurisdiction of a Court or interpretation of provisions
of a statute cannot be deemed to have been finally deter-
mined by an erroneous decision of a Court. Therefore, the
doctrine of res judicata does not apply to a case of decree
of nullity. If the Court inherently lacks jurisdiction
consent cannot confer jurisdiction. Where certain statutory
rights in a welfare legislation are created, the doctrine of
waiver also does not apply to a case of decree where the
Court inherently lacks jurisdiction.
In the light of this position in law the question for
determination is whether the impugned decree of the Civil
Court can be assailed by
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the appellant in execution. It is already held that it is
the Controller under the Act that has exclusive jurisdiction
to order ejectment of a tenant from a building in the urban
area leased out by the landlord. Thereby the Civil Court
inherently lacks jurisdiction to entertain the suit and pass
a decree of ejectment. Therefore, though the decree was
passed and the jurisdiction of the Court was gone into in
issue Nos. 4 and 5 at the ex-parte trial, the decree there-
under is a nullity, and does not bind the appellant. There-
fore, it does not operate as a res judicata. The Courts
below have committed grave error of law in holding that the
decree in the suit operated as res judicata and the appel-
lant cannot raise the same point once again at the execu-
tion.
It is seen from the dates mentioned that there is no
delay in filing the leave application. The leave application
was filed within the limitation from the date of original
order of dismissal of the revision or on a later date dis-
missing the review application. It is true that the writ
petition was filed against the order in revision, but it
does not preclude the appellant to contest its invalidity in
the appeal under Art. 136. The decree was executed pending
the special leave petition. This Court would relieve the
party from injustice in exercise of power under Art. 136 of
the Constitution when this Court notice grave miscarriage of
justice. It is always open to the appellant to take aid of
Sec. 144 C.P.C. for restitution. Therefore, merely because
the decree has been executed, on the facts when we find that
decree is a nullity, we cannot decline to exercise our power
under Art. 136 to set at nought illegal orders under a
decree of nullity. The appeal is accordingly allowed. But in
the circumstances parties are directed to bear their own
costs.
Y. Lal Appeal allowed.
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