Research › Search › Judgment

Andhra High Court · body

2002 DIGILAW 1408 (AP)

Nammi Ganga Raju v. A. Ramakrishna

2002-12-05

NARAYANA REDDY, RAMESH MADHAV BAPAT

body2002
( 1 ) S. A. Nos. 113, and 131 to 134 of 1991 are filed against the judgment and decrees in A. S. Nos. 27, 26, 29, 25 and 28. of 1987 on the file of the learned Subordinate Judge, Bhimavaram, respectively, which arose out of O. S. Nos. 298, 297, 300, 295 and 299 of 1981 on the file of the learned District Munsif, Bhimavararn. ( 2 ) THE appellants in all the appeals are defendants. The question involved in all the appeals is common. Therefore, the appeals are disposed of by a common judgment ( 3 ) THE substantial question of law involved in the second appeals is whether in view of the striking down by the Supreme Court of Section 32 (b) of the AP. Buildings (Lease, Rent and Eviction) Control Act, 1960, (for short, the Rent Control Act ) which excluded the applicability of the Rent Control Act to the buildings constructed on or after 26. 8. 1957, the Civil Court had jurisdiction to entertain a suit by a landlord for eviction of a tenant?. ( 4 ) AS far as the facts are concerned, there is no dispute that the landlord-respondents filed the suits for eviction of their respective tenants by terminating the tenancy under Section 106 of the Transfer of Property Act. The trial Court decreed the suits. The first appellate Court dismissed the appeals filed by the defendants. Therefore, the defendants filed the second appeals, as stated above. ( 5 ) LEARNED counsel Mr. K. Satyanarayana, appearing on behalf of the appellants, submitted at the Bar that while striking down Section 32 (b) of the Rent Control Act as unconstitutional in Motor General Traders Vs. State of Andhra Pradesh1, the Apex Court in paragraph 32 observed as under: in the result these petitions succeed. Clause (b) of Sec-32 of the Act. is hereby declared as unconstitutional and it is quashed. We, however, make it clear that this declaration would not affect the validity of any proceedings in which the decree for eviction passed by a Civil Court has become final and the landlord has already taken possession of the building in question pursuant thereto. Clause (b) of Sec-32 of the Act. is hereby declared as unconstitutional and it is quashed. We, however, make it clear that this declaration would not affect the validity of any proceedings in which the decree for eviction passed by a Civil Court has become final and the landlord has already taken possession of the building in question pursuant thereto. ( 6 ) THE learned counsel submitted that in view of the above declaration of the Supreme Court, the striking down of Section 32 (1) of the Rent Control Act would have no effect if the landlord had already taken possession of the suit schedule property. But in the present cases, the decrees of the Civil Court have not become final as they are challenged in the present second appeals, and since the landlords in the present cases have not taken possession of the suit schedule properties, the observations of the Apex Court would not be applicable to the present cases. Learned counsel for the appellants further submitted at the Bar that the effect of declaring a provisional as unconstitutional is that such provision had never existed on the date of its enactment. In support of his contention he pointed out a ruling in nand Kishore Vs. State of Punjab2, in para 19 of which their lordships were pleased to hold as under:"it would then have to be seen the twin play of the notion of deemed constitutionality and bar of constructive res judicata. Raising the constitutionality of a provision of law, as it appears to us, stands on a different footing than raising a matter on a bare question of law, or mixed question of law and fact, or on fact. There is a presumption always in favour of constitutionality of the law. The onus is heavy on the person challenging it. Jt is by the discharge of onus that the presumption of constitutionality can be crossed over. When a person enters a Court for relief and does not challenge the constitutionality of the law governing the matters directly and substantially in issue, it only means and implies that he goes by the presumption of constitutionality. He cannot on this stance be deemed to have raised the question of constitutionality and the question of constitutionality to have been decided against him and such matter to have been directly and substantially in issue. He cannot on this stance be deemed to have raised the question of constitutionality and the question of constitutionality to have been decided against him and such matter to have been directly and substantially in issue. The constitutionality of the Rule relating to compulsory retirement cannot be deemed to have been questioned and decided against the appellant on the principles of "might and ought"or it being "directly and substantially in issue". It cannot be taken as a rule that one of the pleas, either by the plaintiff or the defendant, in every suit or proceeding, must of necessity relate to the constitutionality of the law on which the cause is founded or defended in order to obviate the plea of constructive res judicata being raised , in an eventuality. It cannot also be taken as a rule that constitutionality of the law involved is a matter directly and substantially in issue, and if not raised renders a mute decision in favor of its constitutionality barring the plea being raised in a subsequent suit. If there be read such a rule in all civil litigation, it would, to our mind, be against public policy vexing and burdening the courts to go into the constitutionality of the law involved in every case. When under the impugned rule, the Government assumed to itself the power to compulsorily retire a permanent government servant after ten years of qualifying service, the Court s act of striking that Rule as unconstitutional is the law which appeared on the scene, not only to break the presumption of constitutionality but to declare it void. In a sense the offending provision was never there and in the other it was henceforth not there. In either event, it would be within the ambit of the emphasised words in Mathnra Prasad s case. " ( 7 ) LEARNED counsel for the appellants pointed out a Ruling in k. Sartkaran Nair Vs. Devaki Amma Malathy Amma and Ors. 3. In para 5 of the judgment, their Lordships were pleased to hold as under once the constitutionality of the provision was gone into by the Supreme Court and once the provision was struck down the hurdle in the way of the appellant vanished and consequently the suit filed by the appellant challenging the compulsory retirement could not be said to be barred by the principles of res judicata. It becomes at once clear that once this Court struck down the concerned rule prescribing compulsory retirement of Government servant the very basis the earlier judgment upholding such an exercise got knocked off and was totally obliterated from the Statute Book. Consequently the very foundation of the judgment vanished. Such a judgment would obviously become baseless lacking the very foundation on which it could operate. The very foundation of an earlier judgment can be displaced by either the competent legislature enacting a retrospective provision for that purpose or by a competent Court deciding the concerned legal provision on which such judgment is based as ultra uires and void. In either case the very foundation and legal substitution of such judgment will vanish retrospectively. In such an eventuality the law could be said to have been totally displaced from the very inception of enactment of such a law and consequently any judgment based on such a non-existing law as found retrospect could obviously lack efficacy and consequential force of Resjudicata. ( 8 ) ANOTHER judgment which the learned counsel relied upon is smt. Isabella Johnson Vs. M. A. Susai4. In para 4 of the judgment, their Lordships were pleased to hold as under:"on the basis of this conclusion, and other conclusions with which we are not concerned, the suit was decreed by the learned Assistant Judge in favour of the appellant. The decision of the learned Assistant Judge was upheld in an appeal filed by the respondent in the Court of the learned Additional Chief Judge of the City Civil Court at Hyderabad. On a second appeal preferred by the respondents, the learned single Judge of the High Court took the view that in matters of jurisdiction the question of estoppel does not arise. If the City Civil Court has no jurisdiction to entertain the suit, the doctrine of estoppel could not be invoked so as to confer jurisdiction on the Court of City Civil Court. On the question of jurisdiction, the learned Judge took the view that the City Civil Court had no jurisdiction to entertain the suit as it lay exclusively within the jurisdiction of the Rent Controller. " ( 9 ) LEARNED counsel further kept reliance on m/s. East India Corporation Ltd. Vs. Shree Meenakshi Mills Ltd. 5. On the question of jurisdiction, the learned Judge took the view that the City Civil Court had no jurisdiction to entertain the suit as it lay exclusively within the jurisdiction of the Rent Controller. " ( 9 ) LEARNED counsel further kept reliance on m/s. East India Corporation Ltd. Vs. Shree Meenakshi Mills Ltd. 5. In paras 8 and 9 of the judgment, it is held as under:"what is stated in the second proviso to S. 10 (1) is the sole circumstances in which the Civil Court is invested with jurisdiction in matters of eviction. But this jurisdiction cannot be invoked otherwise than as stipulated in the second proviso. This means that the condition 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 tenant in a Civil Court. Where these conditions are satisfied, the Civil Court will have jurisdiction to pass a decree for eviction on any of the grounds mentioned in S. 10 or Ss. 14 to 16 notwithstanding that the Court has found that the tenant s denial of the landlords 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 matter 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 record a finding, that the denial or claim by the tenant, as aforesaid, is bonafide. 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 different questions of title are by the statute reserved for decision by the appropriate Civil Court which the more competent forum in such matters. 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 different questions of title are by the statute reserved for decision by the appropriate Civil Court which the more competent forum in such matters. (See the principle discussed in Magiti Sasamal V. Pandab Bissoi (1962)3 SCR 673 : (AIR 9162 SC 547 ). In such an event, the Civil Court will become competent to pass a decree for eviction on any of the grounds rnentioned in S. 10 or Ss. 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 herd, 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 clairned 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 the 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 of no effect. " ( 10 ) WITH the above Rulings on record, it is submitted by the learned counsel for the appellant that the Civil Court had no jurisdiction to entertain the suit. ( 11 ) WHILE rebutting the aforesaid arguments, learned senior counsel Mr. " ( 10 ) WITH the above Rulings on record, it is submitted by the learned counsel for the appellant that the Civil Court had no jurisdiction to entertain the suit. ( 11 ) WHILE rebutting the aforesaid arguments, learned senior counsel Mr. T. Veerabhadrayya, appearing on behalf of the respondents-landlords, submitted at the Bar that the plea of lack of jurisdiction of the Civil Court to entertain the suits in view of the striking down ol Seclion 32 (b) of the Rent Control Act by the Supreme Court was raised by the tenants for the first time in the second appeals and, therefore, that plea would not now be available to them since it is barred by constructive resjudicata. The learned senior counsel further submitted that in the written statement filed by the defendants appellants they challenged the title of the landlords plaintiffs over the suit schedule property, denied the existence of the lease agreement between the parties and also denied that they were in arrears of rent etc. Therefore, those pleas are now not available to the tenants. The appellants cannot be permitted to raise question of jurisdiction of the civil court for the first time in the second appeal. He contended that as on the date of filing of the suits, the civil court had jurisdiction to entertain them. Therefore, when once the right to evict the tenants from the suit premises was vested with the respondents-landlords, the subsequent striking down of Section 32 (b) of the Rent Control Act would have no effect, as far as the present cases are concerned. The learned senior counsel agreed on the point that after the striking down of Section 32 (b) of the Rent Control Act, the civil court would have no jurisdiction to entertain suit for eviction of the tenant. He, however, submitted the present cases are exception to the above rule, for the reason that the tenants had challenged the title of the plaintiffs-respondents and they even denied the agreements of lease. Therefore the principles of constructive resjudicata would apply, and the plea of the lack of jurisdiction of the Civil Court should not be permitted to be raised in the second appeals for the first time. In support of his contention, he relied upon a Ruling in state of U. P Vs. Nawab Hussain (6 ). Therefore the principles of constructive resjudicata would apply, and the plea of the lack of jurisdiction of the Civil Court should not be permitted to be raised in the second appeals for the first time. In support of his contention, he relied upon a Ruling in state of U. P Vs. Nawab Hussain (6 ). In paras 3 and 4 of that judgment, the Supreme Court held as follows:"3. The principle of estoppel per resjudicata is a rule of evidence. As has been stated in marginson Vs. Blackburn Borough Council (1939)2 KB 426 at P. 437 it may be said to be the broader rule of evidence which prohibits the reassertion of a cause of action This doctrine is based on two theories; (i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of community as a matter of public policy and (ii) the interest of the individual that he should be protected from multiplication of litigtion. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the courts to recognise that a cause of action which results in a judgment must lose its identity and vitality and merge in the judgment when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of resjudicata. 4. But it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choosc nnd suc one cause of action at one tirne and to reserve the other for subsequent litigation,that would aggravate the burden of litigation. 4. But it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choosc nnd suc one cause of action at one tirne and to reserve the other for subsequent litigation,that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its proccss and Somervell L. J. has answered it as follows in Greenhalgh v. Mallctfd (1947) 2 ALL ER 255 at page. 257:-- "i think that on the authorities to which 1 will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the Court is asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the Court to allow a new proceeding to be started in respect of them. " this is therefore another and an equally necessary and efficacious aspect of the same principle, for it helps in raising the bar of res judicata by suitably construing the general principle of subduing a cantankerous litigant. That is why this other rule has sometimes been referred to as constructive res judicata which in reality is an aspect or application of the general principle. " ( 12 ) LEARNED senior counsel also relied upon a Ruling in forward Construction Co. Vs. Prabhat Mandal7, in para 20 of which their Lordships were pleased to hold as under: so far as the first reason is concerned, the High Court in or opinion was not right in holding that the earlier judgment would not operte as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Sec. 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation IV to Sec. 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially concerned with the subject matter of litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim, or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter bad been actually controverted and decided. It is true that where a mater has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason. therefore, has absolutely no force. " ( 13 ) LEARNED senior counsel for the landlords relied upon sangappa Gurulingappa Sajjan Vs. State of Karn. ataka8 in which it was held that a plea, available in the first instance, but not raised, cannot be raised at the stage of S. L. P. by operation of principle of constructive res ju. dicata under Section 11 C. P. C. He also relied upon gulam Abbas Vs. State of U. P. 9, which is also to the same effect. ( 14 ) IN K. Krishnan Vs. Tirumala Tirupathi Devasthanams10, on which the learned senior counsel for the respondents relied, it is held in Para 21 as under:"it is a well accepted principle of law that ouster of jurisdiction of Civil Courts cannot be presumed lightly; any provision of law which divests the jurisdiction of the Civil Courts must be interpreted strictly. Abdul V. Bhaivani (AIR 1966 SCC 1718 ). If the relief sought in a civil suit is outside the purview of the authorities constituted under the special enactment, the legal position is not in doubt that the Civil Courts can be approached for necessary relief. Kankaiyalal V. Dr. D. R. Banaji ( AIR 1958 SC 725 ). Abdul V. Bhaivani (AIR 1966 SCC 1718 ). If the relief sought in a civil suit is outside the purview of the authorities constituted under the special enactment, the legal position is not in doubt that the Civil Courts can be approached for necessary relief. Kankaiyalal V. Dr. D. R. Banaji ( AIR 1958 SC 725 ). In Dhulabhai V. State of M. P. ( AIR 1969 SC 78 ), a Constitution Bench of the Supreme Court speaking through the leaned Chief Justice Hidayathullah, laid. down the following propositions as to under what circumstances the jurisdiction of the Civil Courts is divested: 1. Where the statute gives a finality to the orders of the special Tribunals, the civil Court s jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. 2. Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the suffiecncy of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion, the examination of the remedies and the scheme of the particular, Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed. by the said stature or not. 3. Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into the question on a revision or reference from the decision of the Tribunals. 4. When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. Even the High Court cannot go into the question on a revision or reference from the decision of the Tribunals. 4. When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of Certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies. 6. Questions of the corectness of the assessment apart trom its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the Scheme of the particular Act must be examined because it is a relevant enquiry. 7. An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply. " ( 15 ) THE question is whether the principles of constructive res jndicata would be applicab1e in the present set of facts. In our considered view they are not applicable, for the reason that when Section 32 (b) of the Rent Control Act was struck down by the Supreme Court as unconstitutional, we have to hold, and we hold, that Section 32 (b) had never existed as on the date of its enactment. We find support to our view from a Ruling in sushil Kumar Mehta Vs. Gobind Ram Bohra11. In para 26 of that Judgment their Lordships of the Supreme Court were pleased to hold as under:"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 judicata in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest frorn 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 Conrt wilhout jurisdiction over the subject-matter or on other grounds which goes to the root of its exercise or jurisdiction lacks inherent jurisdiction. 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 Conrt wilhout 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 coram non 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 jndicata under Section 11 CPC is founded on publi c 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 adjudicate 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 obvious; a pure question of law unrelated to facts which arc the basis or foundation of a right, cannot be deemed to be 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. 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 prohibition 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 jndicata 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 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 created, the doctrine of waiver also does not apply to a case of decree where the Court inherently lacks jurisdiction. ". ( 16 ) IN view of the foregoing, discussion, we are of the considered view that the Civil Court had no jurisdiction to entertain the suits, and the decrees passed in title suits lack inherent jurisdiction. A decree passed without jurisdiction is a nullity, is an admitted principle. Therefore, we hold that though the landlords in the present cases were litigating to evict the tenants from the suit schedule premises, they cannot get the remedy in the Civil Court as it had no jurisdiction to entertain the suits. Hence, we have to allow the appeals by setting aside the decrees passed by the Civil Court as confirmed by the first appellate court. Accordingly we set aside the judgments and decrees passed by the trial court as confirmed by the first appellate court, and allow the second appeals. No costs.