KRISHNAN v. APPU MENON — 1980 DIGILAW 96 (KER)

Judgment :- 1. The tenant of a building, who has been ordered to vacate by the Rent Controller, Appellate Authority and the Revisional Court has come up with this revision petition under S.115 CPC. The landlord after retiring from service wanted to settle down at Calicut and for that purpose wanted the tenant to vacate from the building On his refusal the landlord applied for eviction. An application was filed before the Munsiff, Kozhikode I, who was invested with the powers of a Rent Control Court under the Kerala Buildings (Lease and Rent Control) Act. The tenant disputed the claim of bona fide need set up by the applicant and also disputed the title of the applicant to apply for eviction. The Rent Control Court found that the tenant's dispute of the applicant's title for eviction is not bona fide. It also found that the need of the applicant is bona fide. Consequently an order for eviction was passed. On appeal to the Appellate Authority, besides repeating his contentions that he took before the Rent Controller an additional ground was taken to the effect that the Munsiff, Kozhikode I, had no jurisdiction to entertain and decide the application because the area where the building is situate falls within the jurisdiction of Munsiff, Kozhikode II, and the latter has been invested with the powers of a Rent Control Court to dispose of applications under the Act in respect of buildings in that area. The Appellate Authority permitted him to raise that additional ground, but found that he is not entitled to question the jurisdiction of the Rent Control Court (Munsiff, Kozhikode I) on the principle of S.21 CPC. On the merits also the dispute regarding the title was found to be not bona fide and the need of the applicant was found to be genuine. The petitioner did not keep quiet. He moved the District Court challenging the orders passed by the Subordinate Tribunals. The District Court also found that there is no bona fides in the petitioner disputing the title or the applicant to apply under the Act. The applicant was found to be the karnavan of the puthravakasam tarwad entitled to resume the management of the tarwad on his retirement from service and returning to Calicut. The District Court also found that there is no bona fides in the petitioner disputing the title or the applicant to apply under the Act. The applicant was found to be the karnavan of the puthravakasam tarwad entitled to resume the management of the tarwad on his retirement from service and returning to Calicut. Further the petitioner entered into the rental arrangement with the applicant's sister during his absence and his sister has only acted on his behalf. Consequently there is no scope for any dispute regarding the title of the applicant. The applicant was found to be in genuine need of the building for his residence. On the plea of nullity of the order passed by the Munsiff Kozhikode I, also the District Judge concurred with the Appellate Authority's view that the petitioner is not entitled to raise this question on the principle of S 21 CPC. It is after all these that the petitioner has come up in revision before this Court. 2. All the Subordinate Tribunals are right in coming to the conclusion that there is no bona fides in the petitioner disputing the title of the applicant-respondent. The respondent was employed in Bangalore as Secretary, Coffee Board. He was the eldest male member of his puthravakasam tavazhi and during his absence from Calicut the management of the properties was being attended to by his sister and in, the course of such management she had let out the building to the petitioner. The contention of the petitioner that on her death her heirs alone are entitled to claim eviction is unsustainable in view of the character of the property and the nature of the management that the respondent's sister had over the property. On the petitioner coming back after retirement he is entitled to resume the management and it is in that capacity he asked for eviction of the petitioner. It is not disputed that the respondent has no building of his own in Calicut for his residence. That being so his claim for getting back the building from the petitioner is bona fide. There is no error of jurisdiction in the conclusions arrived at by the Subordinate Tribunals for interference under S.115 CPC. 3. It is not disputed that the respondent has no building of his own in Calicut for his residence. That being so his claim for getting back the building from the petitioner is bona fide. There is no error of jurisdiction in the conclusions arrived at by the Subordinate Tribunals for interference under S.115 CPC. 3. The main point pressed for consideration by the petitioner's counsel is that the order passed by the Munsiff, Kozhikode I, acting as the Rent Control Court is a nullity because that learned Munsiff has no jurisdiction under the Kerala Buildings (Lease and Rent Control) Act to entertain and decide an application in respect of the disputed building which is situate within the jurisdiction of the Munsiff, Kozhikode II who has also been invested with the powers of Rent Control Court over the area where the building is situate. It is not disputed that the building in question is situate within the jurisdiction of Munsiff, Kozhikode II and that the latter has been invested with the powers of a Rent Control Court. It is also not disputed that this fact escaped the attention of both the applicant and the tenant until the order for eviction was passed. No attempt has been made to point out that any prejudice has been caused to the petitioner-prejudice in the sense that he could not have a fair trial. The fact that the decision has gone against the petitioner cannot be characterised as a prejudice consequent on or attributable to the exercise of jurisdiction by Munsiff, Kozhikode T. As seen from the progress diary of the case that court gave ample opportunity to both the parties to let in all their evidence before the case was heard and orders passed. In these circumstances the plea raised for the first time in the Appellate Court is purely a technical plea which cannot be countenanced. The principle that is followed in such a situation is the principle that is inherent in S.21 CPC., though that section in terms does not apply to Rent Control cases. In these circumstances the plea raised for the first time in the Appellate Court is purely a technical plea which cannot be countenanced. The principle that is followed in such a situation is the principle that is inherent in S.21 CPC., though that section in terms does not apply to Rent Control cases. The conduct of the party in taking part in the proceedings before the trial court without raising any objection regarding jurisdiction knowingly or unknowingly and taking a chance of verdict in his favour will be deemed to be a waiver of the objection of want of territorial jurisdiction, and he will not be subsequently permitted to raise it. Long and continued participation of the parties in the proceedings without any protest amounts to a waiver of jurisdiction. This principle which is given statutory recognition under S.21 CPC. so far as suits are concerned has been applied in cases where the Section in terms does not apply. For instance in Hira Lal v. Kali Nath (AIR. 1962 SC. 199) this principle was applied to reject a contention similar to the one raised in this case. In that case a suit was filed on the original side of the Bombay High Court for recovery of certain amount in respect of the commission due to the plaintiff. That suit was eventually referred to arbitration and on the basis of the award of the Arbitrator a decree was passed. The decree was transferred to the District Judge, Agra for execution. When the decree-holder applied for execution a contention was raised that the decree passed by the Bombay High Court is a nullity as that court had no territorial jurisdiction to entertain the suit, the transaction sued on having taken place within the jurisdiction of the Agra Court. The District Judge and the High Court dismissed this objection and it was against that the matter went up to the Supreme Court. The Supreme Court held that there is a difference between a defect of want of inherent jurisdiction and territorial jurisdiction and it is only in the former case a decree passed by a court having no inherent jurisdiction will be a nullity which can be set up in execution. Their Lordships were of the view that the objection as to territorial jurisdiction does not go into the competence of the court and can therefore be waived. Their Lordships were of the view that the objection as to territorial jurisdiction does not go into the competence of the court and can therefore be waived. After holding so, the principle that should govern such a case is stated thus at page 201: "It is well settled that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking it is a case of inherent lack of jurisdiction. On the other hand an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like S.21 of the Code of Civil Procedure. Having consented to have the controversy between the parties resolved by reference to arbitration through court, the defendant deprived himself of the right to question the authority of the court to refer the matter to arbitration or of the arbitrator to render the award. It is clear, therefore, that the defendant is estopped from challenging the jurisdiction of the Bombay High Court to entertain the suit and to make the reference to the arbitrator. He is equally estopped from challenging the authority of the arbitrator to render the award." Subsequent to the above decision the Supreme Court again had occasion to consider this question in B. Petroleum Co. v. P. J. Pappu (AIR. 1966 SC. 634). At page 636 the Supreme Court observes thus: "As a general rule, neither consent nor waiver nor acquiescence can confer jurisdiction upon a Court, otherwise incompetent to try the suit. But S.21 of the Code provides an exception, and a defect as to the place of suing, that is to say, the local venue for suits cognisable by the Courts under the Code may be waived under this section. The waiver under-S.21 is limited to objections in the appellate and revisional Courts. But S.21 is a statutory recognition of the principle that the defect as to the place of suing under S.15 to 20 may be waived. Independently of this section, the defendant may waive the objection and may be subsequently precluded from taking it, see Hira Lal Patni v. Kali Nath,1962-2-SCR. 747 at pp. 751-752 (AIR. 1962 SC. But S.21 is a statutory recognition of the principle that the defect as to the place of suing under S.15 to 20 may be waived. Independently of this section, the defendant may waive the objection and may be subsequently precluded from taking it, see Hira Lal Patni v. Kali Nath,1962-2-SCR. 747 at pp. 751-752 (AIR. 1962 SC. 199 at p. 201)." This principle was applied to proceedings under the Guardian and Wards Act see the decision in Harichand v. Virbbat (AIR. 1975 Gujarat 150). This was applied to execution proceedings also as can be seen from the decision in Kesavan v. Thomman (1963 KLT. 542). The same principle was applied to Tribunals under the Industrial Disputes Act in Hindustan General Insurance Society Ltd. v. Central Government Labour Court (1968-11 L. L J. 335) the Patna High Court in a case arising under the Industrial Disputes Act had occasion to consider this question. In that case Dutta, J. at page 341 stated the principle thus: "The provisions of S.21 of the Code of Civil Procedure have no application whatsoever to proceedings under the Industrial Disputes Act, but that by itself is no ground for not applying to cases relating to industrial disputes the principles as laid down in this section which are evidently based on principles of natural justice. As already mentioned, this particular objection about the order of the labour court being without jurisdiction on the ground that although the Court had jurisdiction at the time when the applications were filed, its territorial jurisdiction had subsequently ceased before the cases were disposed of by that Court, was not taken before the labour court itself. It is evident that had this objection been taken before the labour court at Dhanbad, there could not have been any difficulty on the part of the Court to send the case to the labour court, West Bengal, for disposal according to law. No such objection was, however, taken before that court as neither the parties nor the court were aware of the aforesaid notifications which were placed before us. That being the position, it would evidently cause great hardship to the workmen-respondents if such an objection is allowed to be taken at the present stage, when there was no parent lack of jurisdiction, so far as the labour court at Dhanbad is concerned. That being the position, it would evidently cause great hardship to the workmen-respondents if such an objection is allowed to be taken at the present stage, when there was no parent lack of jurisdiction, so far as the labour court at Dhanbad is concerned. On consideration of all these aspects, it is held that the objection of the present petitioners about the order of the court below being without jurisdiction cannot be accepted " Narasimhan, C. J. in a concurring judgment at page 342 held thus: "The question now for consideration, therefore, is whether the principle which is given statutory recognition in S.21, Civil Procedure Code, can be extended to judicial tribunals exercising functions under other statutes. It is true that in terms S.21 may apply only to ordinary civil Courts. But, as pointed out in Hira Lal Patni v. Sri Kali Nath (AIR 1962 SC. 199) S.21 is a mere statutory recognition of a well known principle, namely, that where there is no inherent lack of jurisdiction on the part of judicial tribunal to hear a case, an objection as to its territorial jurisdiction should be taken at the earliest stage, otherwise it may be treated as waived. In that Supreme Court case the suit had been instituted in the Original Side of the High Court of Bombay, and it is well-settled that S.21, Civil Procedure Code, has no application to High Courts in exercise of their original jurisdiction. (See Jan Chand Chuga v. Jugal Kishore Agarwal and others (AIR 1960 Cal. 331)) Notwithstanding the inapplicability of S.21, their lordships of the Supreme Court applied the principle of that section in respect of suit brought in the Original Side of the High Court of Bombay. Following that decision, therefore, I would hold that the principle of S.21 would apply in cases heard by labour courts also." This principle was applied to a case arising under the Building Rent Control proceedings. In Hari Shankar v. Fourth Additional Dist. Judge Agra (1978 (1) RCR.154) the Allahabad High Court applied this principle to Rent Control proceedings. At page 156 the principle is stated thus: "The objection now raised relates to territorial jurisdiction of Sri. Varshney. In Hari Shankar v. Fourth Additional Dist. Judge Agra (1978 (1) RCR.154) the Allahabad High Court applied this principle to Rent Control proceedings. At page 156 the principle is stated thus: "The objection now raised relates to territorial jurisdiction of Sri. Varshney. Although the provisions of the Code of Civil Procedure have not been made applicable to the proceedings before the Prescribed Authority in entirety but it is settled that the principles of this Code can be applied to proceedings of a civil nature. S.2.1 of the Code lays down that no objection as to the place of suing shall be allowed by any appellate court or revisional court unless such objection was taken in the court of first instance at the earliest opportunity unless there has been failure of justice. In the instant case the objection was not taken before the Prescribed Authority or the District Judge. No prejudice is alleged to have been caused to the applicant. Therefore, no interference in the order is needed." In the light of these decisions which I follow it cannot be said that a defect of territorial jurisdiction can go to the root of the matter or affect the competency of the court which has been invested with powers under the Rent Control Act. Munsiff, Kozhikode I and Munsiff, Kozhikode II are both invested with powers under the the Kerala Buildings (Lease and Rent Control) Act. No doubt their respective areas as specified and demarcated and the building in question comes only within the jurisdiction of Munsiff, Kozhikode II. But the proceedings were without protest taken before the Munsiff, Kozhikode I and disposed of by that Court. It is only a case of want of territorial jurisdiction as distinct from competency of the court or its inherent jurisdiction. Hence the order passed by the Munsiff, Kozhikode I is not a nullity 4. Even if for argument sake, in this case it is assumed that the decision rendered by Munsiff, Kozhikode I is a nullity an appeal was filed by the petitioner against it before the Subordinate Judge, Calicut which is the Appellate Authority for purposes of appeal against orders passed under the Rent Control Act by Munsiff, Kozhikode I and Munsiff, Kozhikode II, and the Appellate Authority went into the question of the bona fides of the dispute of title raised by the petitioner and found against him on the merits. This decision is binding on him. When a court acts without jurisdiction its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction, that is to say, an appeal would lie to the court to which it would lie if its order was with jurisdiction-See Janardhan Reddy v. State of Hyderabad (AIR 1951 SC. 217 Para.26). When the competent Appellate Court goes into the merits of the dispute and arrives at a conclusion that conclusion is not a nullity. The Supreme Court in the above case has dealt with this question also. In Para.25 the principle is stated thus: "Assuming, however, that it is open even in such cases to investigate the question of jurisdiction, as was held in In re Authers (1889) 22 QBD. 345: (58 LJMC. 62) (supra), it appears to us that the learned judges who decided that case went too far in holding that notwithstanding the fact that the conviction and sentence had been upheld on appeal by a Ct. of competent jurisdiction the mere fact that the trial Ct. had acted without jurisdiction to justify interference treating the appellate order also as a nullity. Evidently, the appellate Ct in a case which properly comes before it on appeal, is fully competent to decide whether the trial was with or without jurisdiction, and it has jurisdiction to decide the matter rightly as well as wrongly. If it affirms the conviction and thereby decides wrongly that the trial Ct. had the jurisdiction to try and convict it cannot be said to have acted without jurisdiction and its order cannot be treated as a nullity." In considering a similar question the Allahabad High Court in Man Singh v. Bir Sahai (AIR. 1973 Allahabad 435) following the above observation of the Supreme Court has stated thus at page 438: "Moreover, in Janardhan Reddy v. State of Hyderabad, AIR. 1951 SC. 217, it was held that where the trial court is not a court of competent jurisdiction or where it has acted without jurisdiction even then if an appeal lies from its decision and an appeal is filed and disposed of by the appellate Court, the jurisdictional detect in trial Court's decision stands cured. 1951 SC. 217, it was held that where the trial court is not a court of competent jurisdiction or where it has acted without jurisdiction even then if an appeal lies from its decision and an appeal is filed and disposed of by the appellate Court, the jurisdictional detect in trial Court's decision stands cured. If the appellate court affirms the decision of the trial court, it may be that it thereby decided wrongly that the trial court had jurisdiction to try the case but its order cannot be treated as a nullity. In other words the jurisdictional defect if any in the trial Court's decision stands cured after the appellate decision." The above principles, with respect, apply to the facts of this case. After the decision of the Appellate Authority holding that the applicant respondent has made out a case for eviction, the jurisdictional error in the order of the Rent Control Court no longer exists. The Appellate Authority's order is binding on the petitioner. For these reasons there is no scope for any interference with the orders passed by the Subordinate Tribunals in this case. However the petitioner is given two months' time to vacate. If he fails to vacate, the order for eviction can be executed by the respondent before the Munsiff, Kozhikode II in accordance with S.14 of the Kerala Buildings (Lease and Rent Control) Act. Subject to the above directions the Civil Revision Petition is dismissed with costs. Dismissed.