Full Judgment Text
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PETITIONER:
EAST INDIA CORPORATION LTD.
Vs.
RESPONDENT:
SHREE MEENAKSHI MILLS LTD.
DATE OF JUDGMENT16/04/1991
BENCH:
THOMMEN, T.K. (J)
BENCH:
THOMMEN, T.K. (J)
SAHAI, R.M. (J)
CITATION:
1991 AIR 1094 1991 SCR (2) 310
1991 SCC (3) 230 JT 1991 (2) 397
1991 SCALE (1)761
ACT:
Rent Control & Eviction: Tamil Nadu Buildings (Lease
and Rent Control) Act, 1960-S. 10, 14 to 16-Eviction of
tenant-Jurisdiction of civil court-Scope of.
Constitution of India: Article 14- Declaration of
constitutional invalidity of statutory provision-Effect of.
Mysore House Rent and Accommodation Control Order,
1948: Ss. 9, 16 Tamil Nadu Building (Lease and Rent Control)
Act, 1960: S. 30(ii).
Code of Civil Procedure, 1908: S. 9- Jurisdiction of
Civil Court under s. 10 of Tamil Nadu Buildings (Lease and
Rent Control) Act, 1960-Extent of.
Words & Phrases: Coram non judice.
HEADNOTE:
The respondent field a suit against the appellant for
recovery of possession of a building on the ground of
wilful deflault in payment of rent which was Rs. 900 per
;month. The appellant denied the relationship of landlord
and tenant, claiming himself as one of the "associates" or
"co-sharers" or "co-owners" of the building. The Munsif
decreed the suit; and the decree was affirmed in appeal by
the first appellate court as also by the High Court. Hence
the present appeal.
During the pendency of the present appeal, cl. (ii) of
s. 30 of Tamil Nadu Buildings (Lease and Rent Control) Act,
1960, which exempted from application of the Act premises
the monthly rent in respect of which exceeded Rs. 400, and
on the basis of which the suit giving rise to the present
appeal emanated, was struck down in a judgment by this
Court.
The appellant contended that as a result of the
declaration by this Court of the constitutional invalidity
of clause (ii) of s. 30, of the Act,
311
which excluded from the purview of the Act any building or
part thereof let out on a monthly rent of Rs. 400, the
decree of the civil court became null and void and of no
effect. On behalf of the respondent it was submitted that
the decree passed by the civil court was not a nullity for
the Act did ;not bar the jurisdiction of the civil court but
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only prohibited execution of a decree of eviction otherwise
than in accordance with the relevant statutory provision;
and that such a decree was not void, but was merely under an
eclipse, and would become executable as and when the bar is
removed..
Allowing the appeal, this Court,
HELD; 1.1 Section 10 of Tamil Nadu Buildings (Lease and
Rent Control) Act, 1960 prohibits jurisdiction of the civil
court in respect of eviction of a tenant whether in
execution of a decree or otherwise except in accordance with
the provisions of that section and ss. 14 to 16. The sole
circumstance and the condition precedent to the exercise of
jurisdiction by a civil court as stated in second proviso
to s. 10(1) is that the tenant should have denied the title
of the landlord or claimed right of permanent tenancy and
the Controller, on such denial or claim by the tenant,
reaches a decision and duly records a finding that such
denial or claim was bona fide and only when these conditions
are satisfied jurisdiction of the civil court can be invoked
to pass a decree for eviciton on any of the grounds
mentioned in s. 10 or ss. 14 to 16. Except to this limited
extend the jurisdiction of the civil court is completely
barred and the same is vested in the tribunals set up under
the Act. Any suit instituted by a landlord for eviction of a
tenant from a building falling within the ambit of the
Act,otherwise than as stipulated by the section is,
therefor, incompetent for lack of jurisdiction of the court
and any decree of the court in such a suit is null and void
and of no effect. [317D-E, G-H; 318-D,G-H]
Sushil Kumar Mehta v. Gobind Ram Bohra, [1990] 1 SCC
page 193, referred to.
1.2 The decision of the Controller is concerned solely
with the bona fides, and not the correctness or validity, of
the denial or claim, for these difficult questions of
title are by the statute reserved for decision by the
appropriate civil court which is the more competent forum in
such matters. [318D-E]
Magiti Sasamal v. Pandab Bissoi,[1962] 3 SCR 673,
referred to.
1.3 If the decision of the Controller is that tenant’s
denial or
312
claim is not bona fide, the jurisdiction of the civil court
cannot be invoked by the landlord and the Controller will
then be the competent authority to order eviction, after
affording the parties a reasonable opportunity of being
heard, on any one of the grounds specified under the
statute, including the ground that the tenant has, without
bona fide denied landlord’s title or claimed right of
permanent tenancy.[318E-F]
1.4 Although the Act contains no express bar of
jurisdiction of the civil court, its provisions explicitly
show that, subject to the extraordinary powers of the High
Court, and this Court, such jurisdiction is statute for
eviction of tenants "in execution or otherwise". The
provision of the Act are clear and complete in regard to the
finality of the orders passed by the special tribunals
set up under it, and their competence to administer the same
remedy as the civil courts render in civil suits. Such
tribunals having been so constituted as to act in conformity
with the fundamental principles of judicial procedure, the
clear and explicit intendment of the legislature is that all
questions relating to the special rights and liabilities
created by the statute should be decided by the tribunals
constituted under it. [317A-C]
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Dhulabhai &Ors. v. The State of Madhya Pradesh & Anr.,
[1968] 3 SCR 662; Secretary of State v. Mask & Co., [1939-
40] IA 222 (PC, Raleigh Investment Co. Ltd. v. Governor
General in Council, [1946] 47 IA 50 (PC and Barraclough v.
Brown & Ors., [1897] AC 615 (HL), referred to.
In the instant case, the procedure stipulated in the
second proviso to s. 10 had not been complied with. At the
time of institution of the suite, the building in question
did not come within the ambit of the Act, owing to the
exclusionary provision contained in cl. (ii) of s. 30, but
after leave to appeal was granted, the applicability of the
Act was extended to the building by reason of the decision
of this Court, declaring the invalidity of cl. (ii) of s. 30
on account of its inconsistency with Article 14 of the
Constitution. Whatever be the consequences of that
declaration-whether it has rendered the statutory provision
null and void and of no effect, or, merely inoperative,
unenforceable and dormant to be revitalised on subsequent
removal of the constitutional ban-in either event, the civil
court acting without the aid of the exclusionary provision
in cl. (ii) of s. 30, during the period of invalidity,had
become coram non judice and its proceedings resulting in the
decree a nullity. [319A-D]
313
Ratan Arya & Ors. v. State of Tamil Nadu & Anr., [1986]
3 SCC 385, referred to.
Kiran Singh & Ors. v. Chaman Paswan & Ors., [1955] 1
SCR 117 relied on.
V.B. Patankar & Ors.v. C.G. Sastry, [1961] 1 SCR 591,
held inapplicable.
Behram Khurshed Pesikaka v. State of Bombay, [1955]
1 SCR 613; Saghir Ahmad v. State of U.P. and Ors. [1955] 1
SCR 707; Bhikaji Narain Dhakras & Ors. v. The State of M.P.
JUDGMENT:
The State of A.P. & Anr., [1958] SCR 1422, referred to.
&
CIVIL APPELLATE JURISDICTION: civil Appeal No. 4032 of
1984.
From the Judgment and Order dated 13.12.1983 of the
Madras High Court in Second Appeal No. 166 and CMP No. 1714
of 1983.
U.R. Lalit and S. Srinivasan for the Appellant.
Dr. Y.S. Chitale, Darshan Singh, Praveen Kumar and
Sumit Sen for the Respondent.
The judgment of the Court was delivered by
THOMMEN, J. The appellant, the East India Corporation
Limited, is the defendant in O.S. No. 623 of 1980, which is
a suit instituted by the respondent, Shree Meenakshi Mills
Limited, for recovery of possession of a building on the
ground of arrears of rent, etc. The respondent-plaintiff
alleged that the appellant-defendant was the tenant of the
building in question and that it has not paid the agreed
rent of Rs. 900 per month for a long period, despite
persistent demands, and has thus been in "wilful default" of
payment of the agreed rent. The appellant denied these
allegations. It specifically denied any relationship of
landlord and tenant between the parties, and contended that
its occupation of the building was not as a tenant of the
respondent, but as one of its "associates" or "co-sharers"
or "co-owners". The suit was decreed. The decree of the
learned Munsif was affirmed in appeal by the First Appellate
Court as well as by the High Court. All the three courts,
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rejecting the appellant’s contentions
314
to the contrary, found that it was a tenant of the
respondent; it questioned without bona fide the respondent’s
title as landlord; it was in default of payment of rents,
and, if was liable to be evicted from the building. Against
these concurrent findings, the present appeal was brought
to this Court by means of a special leave petition. Leave
was granted by order of this Court dated 24.9.84.
At the time of the institution of the suit, or the
grant of leave by this Court, the building in question did
not come within the purview of the Tamil Nadu Buildings
(Lease and Rent Control) Act, 1960 (’the Act’) for the
agreed rent, as alleged by the plaintiff-respondent and as
found by all the courts, was Rs. 900 per month, and as such
was outside the limit prescribed under section 30(ii) of the
Act for a residential building to fall within the statutory
ambit. Section 30, as it stood at the relevant time, stated:
"30. Exemption in the case of certain buildings.-
Nothing contained in this Act shall apply to-
(i) any building for a period of five years from
the date on which the construction is completed
and notified to the local authority concerned; or
(ii) any residential building or part thereof
occupied by any one tenant if the monthly rent
paid by him in respect of that building or part
exceeds four hundred rupees. "
Clause (ii) of section 30 was, however, struck down by
this Court in Rattan Arya & Ors. v. State of Tamil Nadu &
Anr., [1986] 3 SCC 385. This Court stated:
".... Section 30(ii) of the Tamil Nadu Buildings
(Lease and Rent Control) Act, 1960 has to be
struck down as violative of Article 14 of the
Constitution. A writ will issue declaring Section
30(ii) as unconstitutional".
As a result of this declaration of the constitutional
invalidity of section 30(ii), the Act in question, according
to the appellant, has to be read as if clause (ii) of
section 30 was never brought into force, and consequently
all residential buildings, which are older than five years
(see clause (i) of section 30) and let out for whatever
rent, came within the ambit of the Act. Accordingly,
although the suit was properly
315
instituted in the civil court without regard to the special
provisions of the Act, it is now contended that as a result
of the declaration by this Court of the constitutional
invalidity of clause (ii) of section 30, which excluded from
the purview of the Act any building or part thereof let out
on a monthly rent of Rs. 400 the decree of the civil court,
whatever be the merits of the findings on the respective
contentions of the parties, has become null and void and of
no effect whatever. This contention of the appellant is
based on the principle that any decree passed by an
incompetent court is a nullity. The appellant’s counsel
relies on the principle reiterated by this Court in Sushil
Kumar Mehta v. Gobind Ram Bohram [1990] 1 SCC 193 and the
earlier decisions referred to therein on the point. In Kiran
Singh & Ors. v. Chaman Paswan & Ors., [1955] 1 SCR 117 at
121, Venkatarama Ayyar, J. pointed out :
".... It is a fundamental principle well
established that a decree passed by a court without
jurisdiction is nullity, and that its invalidity
could be set up whenever and where-ever it is
sought to be enforced or relied upon, even at the
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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. 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 no judice, and that its
judgment and decree would be nullities."
Dr Y.S. Chitale, appearing for the respondent, however,
submits that the decree passed by the civil court in the
present case is not a nullity for the Act has not barred the
jurisdiction of the civil court, but only prohibits
execution of a decree for eviction otherwise than in
accordance with the relevant statutory provisions. Such a
decee, he says, is not void, but is merely under an eclipse,
and will become executable as and when the bar is removed.
He refers to section 10 of the Act which reads :
"S. 10.-Eviction of tenants.-(1) A tenant shall
not be evicted whether in execution of a decree or
otherwise except in accordance with the provisions
of this section or sections 14 to 16:
316
...................................................
Relying on certain observations of this Court in B.V.
Patankar & Ors. v. C.G.Sastry, [1961] 1 SCR 591 in the
context of the Mysore House Rent and Accommodation Control
Order, 1948, Dr. Chitale submits that, like in that case,
what is prohibited by section 10 in the present case is
execution of the decree and the validity of the decree as
such is not affected. We do not agree.
Section 9 of the Mysore House Rent and Accommodation
Control Order, 1948 reads :
"S. 9(1) A tenant in possession of a house shall
not be evicted therefrom whether in execution of a
decree or otherwise except in accordance with the
provisions of this clause.
.................................................."
Section 16 of that Order reads:
"S. 16.-Nothing in this order shall prevent a
landlord from filing a suit for eviction of a
tenant before a competent civil court, provided
that no decree for eviction of a tenant, passed by
a civil court shall be executed unless a
certificate to that effect is obtained from the
Controller."
Section 16 of the Mysore Order, 1948, thus specifically
allows the institution of a civil suit for eviction of a
tenant, although a decree passed by such a court for
eviction cannot be executed without a certificate to that
effect from the Controller. Jurisdiction of the civil court
is thus not only not barred but specifically preserved,
except for the restriction imposed on the execution of
decrees in matters of eviction. On the other hand, such a
provision is significantly absent in the enactment in
question, The provisions of the Mysore Order considered by
this court in B.V. Patankar & Ors. v. C.S.Sastry, [1961] 1
SCR 591 and those of the Act in question here are not in
pari materia. The observations of this Court relied on by
Dr. Chitale are not, therefore, helpful in understanding the
provisions in question in the instant case.
Section 10 of the Act, as seen above, prohibits
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eviction of a tenant whether in execution of a decree or
otherwise except in accordance with the provisions of that
section or sections 14 to 16. These provisions as well as
the other provisions of the Act are a self contained code,
regulating the relationship of parties, creating special
rights and liabilities, and, providing for determination of
such rights
317
and liabilities by tribunals constituted under the statute
and whose orders are endowed with finality. The remedies
provided by the statute in such matters are adequate and
complete. Although the statute contains no express bar of
jurisdiction of the civil court, except for eviction of
tenants "in execution or otherwise", the provisions of the
statute are clear and complete in regard to the finality of
the orders passed by the special tribunals set up under it
and their competence to administer the same remedy as the
civil courts render in civil suits. Such tribunals having
been so constituted as to act in conformity with the
fundamental principles of judicial procedure, the clear and
explicit intendment of the legislature is that all questions
relating to the special rights and liabilities created by
the statute should be decided by the tribunals constituted
under it. Although the jurisdiction of the civil court is
not expressly barred the provisions of the statute
explicitly show that, subject to the extra-ordinary powers
of the High Court and this Court, such jurisdiction is
impliedly barred, except to the limited extent specially
provided by the statute. See in this connection the
principle stated by this Court in Dhulabhai & Ors. v. The
State of Madhya Pradesh & Anr., [1968] 3 SCR 662. See also
Secretary of State v. Mask & Co., [1939-40] 1A 222 (PC):
Raleigh Investment Co. Ltd. v. Governor General in Counsil.
[1946-47] IA 50 (PC) and Barraclogh v. Brown & Ors., [1987]
AC 615 (HL).
Judged by this test, the jurisdiction of the civil
court in respect of eviction of tenants is barred except to
the extent and subject to the conditions prescribed under
Section 10. The second provision to section 10(1) reads:
"Provided further that where the tenant
denies the title of the landlord or claims right
of permanent tenancy, the Controller shall decide
whether the denial or claim is bona fide and if he
records a finding to that effect, the landlord
shall be entitled to sue for eviction of the
tenant in a civil court and the Court may pass a
decree for eviction on any of the grounds
mentioned in the said sections, notwithstanding
that the Court finds that such denial does not
involve forfeiture of the lease or that the claim
is unfounded".
What is stated in the second proviso to section 10(1)
is the sole circumstance in which the civil court is
invested with jurisdiction in matters of evictions. But this
jurisdiction cannot be invoked otherwise than as stipulated
in the second proviso. This means that the condition
318
precedent to the exercise of jurisdiction by a civil court
is that the tenant should have denied the title of the
landlord or claimed right of permanent tenancy and the
Controller should, on such denial or claim by the tenant,
reach a decision whether such denial or claim is bona fide.
Upon such decision, the Controller must record a finding to
that effect. In that event, the landlord is entitled to sue
for eviction of the tenant in a civil court. Where these
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conditions are satisfied, the civil court will have
jurisdiction to pass a decree for eviction on any of the
grounds mentioned, in section 10 or Sections 14 to 16,
notwithstanding that the Court has found that the tenant’s
denial of the landlord’s title does not involve forfeiture
of the lease, or, his claim of right of permanent tenancy is
unfounded. Except to this limited extent, the jurisdiction
of the civil court in matters of eviction of a tenant is
completely barred and the jurisdiction in such matters is
vested in the tribunals set up under the statute.
Significantly, the jurisdiction of the civil court can
be invoked only where the controller comes to a decision,
and records a finding, that the denial or claim by the
tenant, as aforesaid, is bona fide. If the Controller were
to come to the opposite conclusion, no question of invoking
the jurisdiction of the civil court would arise. But the
decision of the controller is concerned solely with the bona
fides and not the correctness or validity, of the denial or
claim, for these difficult questions of title are by the
statute reserved for decision by the appropriate civil court
which is the more competent forum in such matters (See the
principle discussed in Magiti Sasamal v. Pandap Bissoi,
[1962] 3 SCR 673. In such an event, the civil court will
become competent to pass a decree for eviction on any of the
grounds mentioned in section 10 or sections 14 to 16. On the
other hand, if the decision of the controller is that the
tenant’s denial or claim is not bona fide the jurisdiction
of the civil court cannot be invoked by the landlord and the
Controller will then be the competent authority to order
eviction, after affording the parties a reasonable
opportunity of being heard, on any one of the grounds
specified under the statute, including the ground that the
tenant has, without bona fide, denied the landlord’s title
or claimed right of permanent tenancy. What is significant
is that the decision of the Controller, duly recorded by
him, as regards the bona fide denial or claim by the tenant
is the condition precedent to the invocation of power of the
civil court. Any suit instituted by the landlord for
eviction of a tenant from a building falling within the
ambit of the Act, otherwise. Than as stipulated by the
section, is, therefore, incompetent for lack of jurisdiction
of the Court and any decree of the Court in such a suit is
null and void and no effect.
319
In the present case, the procedure stipulated in the
second proviso to section 10 has not been complied with. At
the time of the institution of the suit, the building in
question did not come within the ambit of the Act, owing to
the exclusionary provision contained in clause (ii) of
section 30, but after leave to appeal was granted by this
Court, the applicability of the Act was extended to the
building by reason of the decision of this Court in Rattan
Arya & Ors. v. State of Tamil Nadu & Anr., [1986] 3 SCC 385
declaring the invalidity of clause (ii) of section 30 on
account of its inconsistency with Article 14 of the
Constitution. Whatever be the consequence of that
declaration - whether it has rendered the statutory
provision null and void and of no effect. See Behram
Khurshed Pesikaka v. The State of Bombay, [1955] 1 SCR 613
and Saghir Ahmed v. The State of U.P. and others, [1955] 1
SCR 707 or merely inoperative, unenforceable and dormant to
be revitalised on subsequent removal of the constitutional
ban. See Bhikaji Marain Dhakras and Others v. The State of
Madhya Pradesh and Another. [1955] 2 SCR 589 and M.P.V.
Sundararamier & Co. v. The State of Andhra Pradesh &
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Another, [1958] SCR 1422 in either event, the Civil Court
acting without the aid of the exclusionary provision in
clause (ii) of section 30, during the period of invalidity,
has become coram no judice and its proceedings resulting in
the decree a nullity. See Kiran Singh & Others v. Chaman
Paswan & Others, [1955] 1 SCR 117 at 121.
In the circumstances, we set aside the decrees of the
courts below. The appeal is allowed and the appellant is
entitled to costs throughout.
R.P. Appeal allowed.
320