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1974 DIGILAW 194 (KAR)

AZEEZ AND CO. v. MARITHIMMIAH

1974-08-22

CHANDRASHEKARAIAH

body1974
( 1 ) THIS second appeal is by a defendant who has failed in both the Courts below. The suit is for a declaration that the ex parte order of eviction obtained by the defendant against the plaintiff under the provisions of the mysore House Rent and Accommodation Control Act, 1951 (hereinafter referred to as the Rent Contrrol Act), is not binding on the plaintiff and is not capable off being executed. ( 2 ) CERTAIN material facets which are not in dispute may be stated. The suit schedule property consists of 9 guntas of land within the limits of Bangalore City and formed part of a land which the plaintiff had taken on lease from the defendant. The defendant filed a petition, HRC 661 of 1955, on the file of I Munsiff, Bangalore, for eviction of the plaintiff under the Rent Control Act. The plaintiff who was the respondent therein, raised a preliminary objection that the demised property in respect of which eviction was sought, was an agricultural land and not a house as defined in sub-sec (4) of S. 2 of that Act and did not come within the purview of that Act and that hence the petition for eviction under that act was not maintainable. That contention was upheld by the learned munsiff, The defendant herein filed an appeal, HRC Appeal 14 of 1957, which was allowed by the District Judge. The plaintiff filed a revision petition CRP. 733 off 1958, in this Court. This Court, by its order d/. 28-6-1960, set aside the judgment of the learned Dist Judge and the order of the learned Munsiff and remanded the case for a fresh disposal according to law. This Court observed that it was open to the learned Munsiff to decide the question whether the property xvas an agricultural land or a house as defined in S. 2 (4) of the Rent Control Act. When the case, HRC 661 of 1955, came up before the learned Munsiff, after remand, the plaintiff who was the respondent therein, was absent and the learned Munsiff made an ex parte order for his eviction. His application for setting aside the ex parte order was dismissed by the learned Munsiff. The plaintiff's appeal and revision from the order of the teamed Munsiff refusing to set aside the ex parte order, were unsuccessful. His application for setting aside the ex parte order was dismissed by the learned Munsiff. The plaintiff's appeal and revision from the order of the teamed Munsiff refusing to set aside the ex parte order, were unsuccessful. ( 3 ) IN the present suit, the plaintiff's case is that as the suit schedule property is an agricultural land and not a house as defined in the S. 2 (4) of the Rent Control Act, the learned Munsiff had no jurisdiction to make an order for eviction under the provisions of the Rent Control Act, that under the provisions of the Mysore Tenancy Act, 1952, and the Mysore Land reforms Act 1961, the jurisdiction of the Civil Courts to grant a decree for eviction of a tenant from an agricultural land, was excluded and that hence, the order of eviction made by the learned Munsiff was without jurisdiction and a nullity and could not be executed against him (the plaintiff. ( 4 ) THE defendants pleaded inter alia that the suit was barred by principles of res judicata and was also not maintainable. ( 5 ) BOTH the courts below have held that haying regard to the proceedings taken by the defendant himself in the Tenancy Court for eviction of the plaintiff, the plaint schedule property must be held to be an agricultural land and that the learned Munsiff had no jurisdiction to entertain the petition under S. 8 of the Rent Control Act for eviction from the suit schedule property, and that the order of eviction made by the learned munsiff was without jurisdiction and hence a nullity. ( 6 ) THE material question that arises for determination in this appeal is whether the jurisdiction of the learned Munsiff to entertain a petition for eviction and make an order for eviction under the provisions of Rent control Act can be challenged in a subsequent suit. ( 7 ) MR. K. Suryanarayana Rao, learned counsel for the appellant defendant, contended that the jurisdiction of the Civil Court to go into the question of jurisdiction of the learned Munsiff under the Rent Control Act, was impliedly barred under the provisions of Sec. 9 of CPC. ( 7 ) MR. K. Suryanarayana Rao, learned counsel for the appellant defendant, contended that the jurisdiction of the Civil Court to go into the question of jurisdiction of the learned Munsiff under the Rent Control Act, was impliedly barred under the provisions of Sec. 9 of CPC. On the other hand, Mr, H. Munivenkatappa learned Counsel for the respondent plaintiff, contended that the question whether the suit schedule property is a house or an agricultural land and whether the learned Munsiff had jurisdiction to make an order for eviction under the provisions of the Rent control Act, are jurisdictional questions and that any decision thereon by the learned Munsiff in H. R. C. No. 661 of 1955, is not final and can be challenged In a subsequent suit. ( 8 ) ELABORATING his contention Mr. suryanarayana Rao argued that in C. R. P. No. 733 of 1and58 this Court had specifically said that in H. R. C. No, 661 of 1955 the learned Munsiff could go into the question whether the property from which the plaintiff was sought to be evicted, came within the definition of house in S. 2 (4) of the Rent Control Act and whether the learned Munsiff had jurisdiction under the Rent Control Act to entertain a petition for eviction from that property and that hence it was within the competence of the learned Munsiff to determine those questions. Mr. Suryanarayana Rao maintained that as the Rent Control Act provided for appeal to the District Judge from an order of the Munsiff, and also a revision to the High Court, the existence of such hierarchy of judicial Tribunals for the determination of the question on which the applicability of the Rent Control Act depends, is sufficient for inferring that the jurisdiction of the Civil Courts to try the same matter, is impliedly barred. ( 9 ) IN support of his contention Mr. Suryanarayana Rao strongly relied on the decision of the Supreme Court in Desika Charyulu v. State of a. P. AIR. 1964 SC. 807. ( 9 ) IN support of his contention Mr. Suryanarayana Rao strongly relied on the decision of the Supreme Court in Desika Charyulu v. State of a. P. AIR. 1964 SC. 807. There, the question that arose for determination was whether the decisions of the Settlement Officer under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (here in after referred to as the Madras Estates Abolition Act), as to whether a property is an Inam village and whether such a village is an Inam Estata, could be questoned in a Civil Court. The Supreme Court quoted with approval the following statement of law as tp the extent of exclusive powers of Tribunals, by Lord esher in Queen v. Commr for Spl Purposes of the Income Tax (1888) 21 QBD. 313, 319, 320 when an inferior Court or Tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament the legislature has to consider what powers it will give that tribunal or body. It may in effect say that if a certain state of facts exists and is shown to such Tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do, such things, but not otherwise. There it is not for them conclusively to decide whether that state of facs exsits and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another stats off things which may exist. The legislature may entrust the Tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist to proceed further or do something more. But there is another stats off things which may exist. The legislature may entrust the Tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist to proceed further or do something more. When the legislature are establishing such a Tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there) will be none, In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the Tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends, and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction. ( 10 ) THE Supreme Court observed that the answer tp the question as to whether any particular case falls under the first or the second of the above categories, would depend upon the purpose of the statute and its general scheme taken in conjunction with the scope of the enquiry entrusted to the Tribunal set up and other relevant factors. ( 11 ) SUB-SEC (L) of S. 9 of the Madras Estates Abolition Act, provides that the Set lement Officer shall enquire and determine whether an Inam village is an Inam estate or not. The Supreme Court pointed out that this determination involves two distinct and separate matters, namely, whether a particular property is an Inam village and whether such village is an inam estate within the definition of S. 2 (7) of that Act, that the question whether the grant is an Inam village, is an extrinsic fact which must preexist before the Settlement Officer can embark on the enquiry contemplated by that provision. The Supreme Court held that on the terms of S. 9 (l) of madras Estates Abolition Act, the property in question being an Inam vil lage is assumed as a fact on the existence of which the competency of the settlement Officer to enquire and determine whether an Inam village is an inam estate rests, that as there are no words in that Act empowering him to decide formally the question whether a particular property is an Inam village the determination of that question by the Settlement Officer is binding on the parties only for the purposes of the proceedings under the act but no further and that the correctness of that finding can be questioned in any subsequent legal proceedings in the ordinary Courts of the land where the question may arise for decision. But, the Supreme Court added that the determination by the Settlement Officer of the second question, namely, whether the Inam village is an Inam estate, is within his exclusive jurisdiction and that in regard to it the jurisdiction of the Civil courts is clearly barred. ( 12 ) THE question whether the property in respect of which an order of eviction is sought for, under the provisions of the Rent Control Act is a house as defined in S. 2 (4) of that Act is similar to the question whether a particular property is or is not an Inam village. On the terms of s. 8 of the Rent Control Act the property in question being a house as defined in S. 2 (4) of that Act, is assumed as a fact on the existence of which the competency of the Munsiff to made an order for eviction rests. As there are no words in that Act empowering him to decide formally that question, he cannot confer jurisdiction on himself by a wrong decision on that preliminary condition of his jurisdiction. Any determination by him on this question therefore is (subject to appeal to the Dist Judge and revision to this High Court) binding on the parties only for the purpose of the proceedings under the Rent Control Act, but no further. The correctness of that finding can be questioned in any subsequent legal proceedings in the ordinary Courts of law where the question might arise for decision. The correctness of that finding can be questioned in any subsequent legal proceedings in the ordinary Courts of law where the question might arise for decision. ( 13 ) THE view I have taken receives support from the decision of the former Mysore High Court in Gururajachar v. Rangaiah (1947) 52 Myshcr. 455. . There, venkataramana Rao, CJ. who delivered the judgment of the Bench held that the House Rent Controller was a special tribunal created by the statute for a specific purpose that such tribunal should act only within the limits of the powers conferred by that statute and that if such limits were exceeded by the Tribunal, the decision of the Tribunal was liable to be challenged by an action in a Civil Court. ( 14 ) THE above decision was followed by this Court in Kittamma v. Subba Rai AIR. 1959 Mys. 75=1958 Mys. L. J. 634. wherein an order of eviction made by the Subordinate Judge in an appeal under the provisions of the Madras Buildings (Leases and rent Control) Act, 1949, was challenged as being without jurisdiction, ultra vires and a nullity, ( 15 ) HENCE, the view taken by the Courts below that the suit is maintainable and that it is not barred by the principle of res judicata is, in my opinion, correct and I do not see any good ground to dissent from that view. ( 16 ) IN the result, this appeal fails and is dismissed. ( 17 ) AS the question arising in this case is not free from difficulty parties are directed to bear their own costs in this Court as well as in the courts below. --- *** --- .