kuriakose v. Varkey — 1987 DIGILAW 60 (KER)

Judgment :- 1. There are two petitioners in this Original Petition. They are tenants' of the first respondent. The first petitioner, his brother and mother are tenants of Building No. XII/460 and 461 of Perumbavoor Municipality. The first petitioner is conducting hotel business in the building. The second petitioner is the tenant of Building Nos. XII/427, XIT/431 and XIII/I of Perumbavoor Municipality. He is conducting a retail ration shop. The first respondent Landlord filed R.C.P. Nos. 46 and 48 of 1980 claiming eviction on the ground that the building needs reconstruction. The petitions were allowed by the Rent Controller on 9-2-1984. The said judgments were reversed by the first Appellate Authority and upheld by the District Court, disallowing eviction. By Ext. P1 judgment in CRP. Nos. 1365/84 and.2500 of 1985 dated 5-3-1986, this Court allowed eviction. The petitioners filed SLP (Civil) Nos. 6727 and 6608 of 1986 before the Supreme Court of India. In the meanwhile, execution proceedings were initiated by way of EP. Nos. 68 and 69 of 1986, evidenced by Exts. P2 and P3. The Supreme Court dismissed the Special Leave Petitions. The orders were substantially similar in the two cases. It was held that if there is existing vacant shops which can be given to the petitioners/ tenants until the building is reconstructed, such shops will be given to the petitioners at the market rate fixed by the Rent Controller. After reconstruction, the tenants/ petitioners would be entitled for their rights as per the order of the High Court. The petitioners state that the first respondent is bound to provide rooms to them till the new building is constructed. But, in violation of the submissions made before the Supreme Court, the landlord is proceeding with execution without allotting rooms to the petitioners. The Rent Controller posted the matter for enquiry. By Ext. P5 order dated 2-1-1987, the Execution Court (Munsiff, Perumbavoor) ordered delivery on 15-1-1987. The revisions filed before the District Court were dismissed by a common order, Ext. P7 dated 23-1-1987. The challenge in this Original Petition is against Exts. P5 and P7 orders. 2. I heard counsel for the petitioners, Mr. M. M. Abdul Aziz. Counsel contended that the order passed by this Court in CRP. Nos. 1365 of 1984 and 2500 of 1985 (Ext. P1) is void. P7 dated 23-1-1987. The challenge in this Original Petition is against Exts. P5 and P7 orders. 2. I heard counsel for the petitioners, Mr. M. M. Abdul Aziz. Counsel contended that the order passed by this Court in CRP. Nos. 1365 of 1984 and 2500 of 1985 (Ext. P1) is void. This Court was incompetent to entertain the revisions under S.115 CPC, as held recently by the Supreme Court of India in Aundal Ammal v. Sadasivan Pillai [1987 (1) KLT. 53]. As a consequence, the order of eviction passed against the petitioners and the consequential orders passed in execution (Exts. P5 and P7) are also void. The decision rendered by this Court in CRP. Nos. 1365 of 1984 and 2500 of 1985 should be ignored. It is a nullity. The first respondent-Landlord has failed to adhere to the submissions made before the Supreme Court. He should have allotted alternate rooms to the petitioners which he had. Exts.P5 and P7 orders are illegal and improper. 3. The order of eviction was passed by this Court in CRP. Nos. 1365 of 1984 and 2500 of 1985 (Ext. P1) on 5-3-1986, at the instance of the first respondent. This was long before the Supreme Court rendered the decision in Aundal Ammal's case (1987 (1) KLT 53). In the said decision, the Supreme Court, in Para.19 to 22 of the judgment, held that in proceedings under the Kerala Buildings (Lease and Rent Control) Act, a second revision under S.115 CPC. does not lie to the High Court from a revisional order passed by the District Court. It should be remembered that the petitioners filed Special Leave Petitions before the Supreme Court as SLP (Civil) Nos. 6608 and 6727 of 1986 from the order passed by this Court in Ext. P1. For the purpose of further appeal to the Supreme Court the petitioners themselves treated Ext. P1 order (order passed by the High Court in revision) as valid and needs to be annulled. At least to that extent, the petitioners had and did accept that this Court had jurisdiction under S.115 CPC when it passed the common order in two Civil Revision Petitions. The question of jurisdiction of this Court under S.115 CPC was not raised either before this Court or before the Supreme Court of India in S.L.P. Nos. 6608 and 6727 of 1986. The question of jurisdiction of this Court under S.115 CPC was not raised either before this Court or before the Supreme Court of India in S.L.P. Nos. 6608 and 6727 of 1986. The question of jurisdiction of this Court to render the judgment in two Civil Revision Petitions (Ext. P1) was raised for the first time only in execution. Having failed to take up the plea of want of jurisdiction of this Court under S.115 CPC. to entertain the revision petitions, it is not open to the petitioners to urge the said plea for the first time in collateral proceedings and at this stage, in proceedings under Art.226 and 227 of the Constitution of India, for more reasons than one. 4. A petition under Art.226 of the Constitution of India will not lie to quash an order of Court. The petitioners seek to quash Ext. P7 order passed by the District Court, (Nallakoya's case 1968 KLT. 60). Even treating this Original Petition as one filed under Art.227 of the Consti-tuion, the plea of want of jurisdiction cannot be taken up for the first time in this proceeding (Trivandrum Co-operative District Wholesale Society v. Dy. Registrar of Co-operative Societies-1975 KLT 589). 5. The plea is taken up for the first time in execution, a proceeding to enforce judgment. It is a collateral attack. Apparently, the order of this Court in CRP. Nos. 1365 of 1984 and 2500 of 1985 (Ext. P1) is valid To ignore it, or to say, that it is void and so a nullity, at this belated stage, would be to blow it off by a side wind. The petitioners had a right to appeal directly from the judgment of this Court in CRP Nos 1365 of 1984 and 2500 of 1985, by obtaining special leave from the Supreme Court. They did so. Having failed to obtain special leave from the Supreme Court, enabling them to attack the judgment of this Court directly, it is incompetent for the petitioners to put forward the plea that the judgment of this Court in the revisions apparently valid, should be ignored on the basis of a subsequent decision rendered in Aundal Ammal's case (1987 (1) KLT 53). It cannot be said that the order passed by this Court in the two Civil Revision Petitions is ultra vires, outside jurisdiction and so null and void. It cannot be said that the order passed by this Court in the two Civil Revision Petitions is ultra vires, outside jurisdiction and so null and void. The order passed by this Court in two revisions was liable to be avoided in direct appeal to the Supreme Court on the merits. Unless and until it is so reversed in appeal, it is a valid order. (See-Wade Administrative Law, Fifth Edition, Pages 310 and 311). 6. The decision of this Court rendered in CRP. No. 1365 of 1984 and 2500 of 1985 attacked as totally void and a nullity, cannot be considered as to be legally non-existent. An appeal would lie from the aforesaid order to the Supreme Court. To that extent, it cannot be doubted that the order passed by this Court in the revisions, is valid. If it is so, bow could it be said that it is totally void or legally non-existent? The plea of the petitioners, being at least in a limited sense, that an appeal will lie from the judgment of this Court in the aforesaid Revision Petitions the said decision cannot be said to be totally non est or a nullity. To accept the contrary position would lead loan illogical and unreal state of affairs, The decision of the judicial Committee of the Privy Council in Calvin v. Can and others (1979 (2) All. ER 440) at pp. 445 to 447 contains a very useful discussion on this aspect of the matter. 7. In Kunjan v. Janaki (1980 KLT 796-DB.) at page 798, Viswanatha Iyer, J. held as follows: "A decree made without jurisdiction possesses nonetheless the qualities of a decree as between the parties thereto and if there is a statutory appeal from the decree made in suits of that character, the decree does not become unassailable by appeal If a jurisdiction is usurped by a court in passing a decree against which an appeal would lie if it had been passed with jurisdiction, that appeal cannot be defeated on the ground that the decree was made without jurisdiction see Gangadhar v. Shekharbasini (AIR 1917 Calcutta 320 at page 325) S.99 CPC indicates that an appeal is maintainable against the decree which has been passed without jurisdiction. Further this position is not now open to doubt in the light of the decision of the Supreme Court in Janardhan Reddy v. State of Hyderabad (AIR 1951 SC 217) At page 225 it is observed thus 'It is well settled that if a Court acts without jurisdiction, its decision can be challenged in the same way as it would have been challenged if it bad acted with jurisdiction, i. e., an appeal would lie to the Court to which it would lie if its order was with jurisdiction." In the light of the above discussion, T am of the view that the decision rendered by this Court in CRP Nos. 1365 of 1984 and 2500 of 1985 cannot be said to be a nullity. It was only voidable in the sense that it could be appealed against to Supreme Court directly. The said judgment could not be attacked collaterally in execution proceedings. 8. The conduct of the petitioners in having filed SLP Nos. 6608 and 6727 before the Supreme Court from the order of this Count in CRP Nos. 1365 of 1984 and 2500 of 1985 is also in accord with the above legal position. By their own conduct, the petitioners are precluded from contending that the order of this Court in the above two Revisions is a nullity. 9. It was next contended that the first respondent - Landlord did not comply with the submission or undertaking made before the Supreme Court. This aspect of the matter has been misunderstood by the second respondent in Ext. P5 order in ordering delivery. There is no substance in this plea The second respondent adverted to the submission made by the Landlord in the Supreme Court and found that there is no evidence to show that the decree holder (Landlord) nor his son is in actual possession of any vacant space in the shopping complex on the date of giving the undertaking before the Hon'ble Supreme Court. In this connection, the second respondent adverted to Exts B1, B2 and Ext. X1 and the previous commission report submitted by the Commissioner in the trial stage relied on by the petitioners to substantiate that the decree holder is in possession of the vacant shop-rooms. This was denied by the Landlord (decree-holder), who relied on Ext. Cl report. In this connection, the second respondent adverted to Exts B1, B2 and Ext. X1 and the previous commission report submitted by the Commissioner in the trial stage relied on by the petitioners to substantiate that the decree holder is in possession of the vacant shop-rooms. This was denied by the Landlord (decree-holder), who relied on Ext. Cl report. Considering the above evidence, the second respondent came to the conclusion that the Landlord (decree-holder) nor his son is in actual possession of any vacant space in the shopping complex on the date of giving the undertaking before the Supreme Court. The contradictory version given by rw I and Rw2 were also adverted to. The finding that the decree-bolder is not in possession of any vacant space with him so as to lease out the same to the judgment-debtors, is a pure finding of fact. It was after entering the said express finding, the second respondent ordered that the decree-holder is entitled to get delivery of the buildings. The above said finding of the second respondent in Ext.P5 was adverted to and it was held by the revisional court that on a perusal of Ext. P5 it can never be said that even in the appreciation of evidence, the lower court committed any illegality, irregularity or impropriety. The findings in Ext. P5 were confirmed. In view of the above concurrent findings of fact. T see no merit in the plea of the petitioners that the Landlord (1st respondent) has not conformed to the submission or undertaking made before the Supreme Court in Ext. P4 proceedings. So even on the merits, the petitioners have no case. 10. No other ground was urged, assailing Exts. P5 and P7 orders, at the time of hearing. The Original Petition is without merit. It is dismissed in limine.