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2009 DIGILAW 484 (KAR)

Sabitha Devi v. S. K. Shreedevi

2009-07-06

ANAND BYRAREDDY

body2009
JUDGMENT :- (This House Rent Revision Petition is filed under Section 46 of Karnataka Rent Act, 1999 against the Order and Decree dated 25.10.2008 passed in HRC.No.178/2006 on the file of the Chief Judge, Court of Small Causes, Bangalore, allowing the petition filed under section 27(2) (r) of the Karnataka Rent Act, 1999, for eviction.) Heard the learned Counsel for the petitioners and the respondent. 2. The facts as are necessary for the disposal of this petition are as follows: It was contended by the respondent that, she was the owner of the petition schedule property having purchased the same from Syeda Fathima, who in turn said to have purchased the property from one A.P. Shankar. A.P. Shankar was the husband of the first petitioner and the father of the second petitioner. It was contended by the respondent that, she had purchased the property as aforesaid and that her husband was a tenant in respect of the very property and was running a wine store therein; that after the purchase of the property it transpired that, she had field a Civil Suit in O.S.No. 8108/1998 on the file of the 14th Additional City Civil Judge, seeking possession of the premises on the ground that the petitioners were unauthorised occupants. The petitioners were placed exparte in the said suit and the Civil Court on consideration of the pleadings of the petitioners and her evidence, dismissed the suit with an observation that, the present petitioners were tenants of the said property and in view of the fact that there existed a jural relationship of landlord and tenant, a suit for possession was not maintainable. It is in this background that, the respondent on the basis of the findings arrived at in the said suit, filed an eviction petition under Section 27(2)(R) of the Karnataka Rent act, 1999 against the petitioners herein. The petitioners entered appearance and contested the proceedings on the footing that, they are in occupation and possession as owners of the property and that, there is no jural relationship of landlord and tenant and that there is no agreement, to their knowledge, entered into between the parties namely the respondent herein and A.P. Shankar or in there own favour. The petitioners entered appearance and contested the proceedings on the footing that, they are in occupation and possession as owners of the property and that, there is no jural relationship of landlord and tenant and that there is no agreement, to their knowledge, entered into between the parties namely the respondent herein and A.P. Shankar or in there own favour. It is the further case of the petitioner that, A.P. Shankar was estranged from the 1st petitioner and he had deserted the 1st petitioner and he is said to have sold the property in favour of one Syeda Fathima but the petitioners have continued to be in possession of the property and that, they have not been disturbed from the premises. In this regard, there is reference to the matrimonial proceedings between A.P. Shankar and the 1st petitioner and A.P. Shankar having died, the petitioners have continued in possession of the property undisturbed, and there is no jural relationship of landlord and tenant as between petitioners and the respondent. The petitioners have filed a suit in O.S. No. 6439/1996 restraining Syeda Fathima, who is alleged to be purchaser of the property from A.P. Shankar, from interfering with their possession. After having learnt that the respondent having allegedly purchased the property from Syeda Fathima, she has been impleaded in the said suit and the same is pending as on today and it is in this way that the petitioners contended that, there is no relationship of landlord and tenant established in order that a petition for eviction could lie. The trial Court, however, on the basis of the pleadings and the evidence that was tendered held that, in view of the findings in O.S.No. 8108/1998 that A.P. Shankar after having sold the property in favour of Syeda Fathima, had entered into an agreement of tenancy and had continued to be in possession of the property as a tenant and had also suffered an order of eviction, in proceedings that were brought by Syeda Fathima and thereafter having died during the pendency of the execution proceedings, the present petitioners had continued as tenants, claiming as legal representatives of A.P. Shankar and therefore, there was a finding of relationship of landlord and tenant and that the case for eviction had been made out and accordingly, the Court below had allowed the eviction petition. It is in this background that the present petition is filed. 3. The learned Counsel for the petitioner would urge that as can be seen from a plain reading of the impugned order, there is no reference to any material produced in the course of the proceedings to establish that there was relationship of landlord and tenant as between the petitioner and respondent. The entire findings in this regard is with reference to the findings of Civil Court in O.S. No. 8108/1998. The said judgment of Civil Court was on the basis that there was no jurisdiction, if the Court has dismissed the suit on the ground that it did not have jurisdiction, any findings of fact recorded therein were a nullity in so far as the petitioners are concerned. The HRC Court, therefore proceeded on the basis that those findings in O.S. No. 8108/98 would bind the petitioners, is an error of law and the HRC court could not have proceeded on those findings and this is a settled principle of law as laid down in a series of cases. The learned counsel would seek to place reliance on the judgment in the case of Upendra Nath Bose –Vs- Lall and Others [AIR 1940 Privy Council 222] wherein on facts it was found that the Court having found to be without jurisdiction, any findings arrived at by the said Court would not have any binding force on the parties and laid down that a Court which declines jurisdiction cannot bind the parties by its reasons for declining jurisdiction; such reasons are not decisions and are certainly not decisions by a Court of competent jurisdiction. 4. It would indeed be strange if on a dispute as to the jurisdiction of a Court to try an issue, that Court by its reasons for holding that it had no jurisdiction, could, upon the principle of res judicata, decide and bind that parties upon the very issue which it was incompetent to try and places reliance yet another judgment of privy council in Shankarlal Patwari –Vs- Hiralal Murarka and Others [AIR (37) 1950 Privy Council 80] where the Court holding that suit is not maintainable by reason of failure to comply with Section 80, any findings given on merits are obiter and do not support a plea of res judicata either in favour of or against party. 5. 5. Reliance is also placed on the judgments in Pandurang –vs- shantabai [ AIR 1989 SC 2240 ] to the same effect and Ashok Leyland LTD –vs- State of Tamil Nadu [ AIR 2004 SC 2836 ] where it is laid down that the principle of res judicata is a procedural provision. A jurisdictional question if wrongly decided would not attract the principles of res judicata. When an order is a nullity, it cannot be supported by invoking the procedural principles like estoppel, waiver or res judicata. Further it is laid down that it is now well settled that an order passed by a Court without jurisdiction is nullity. Any order passed or action taken pursuant thereto or in furtherance thereof would also be nullities. 6. It is in this vein that the learned Counsel for the petitioners would emphasise that the material evidence that was tendered before the Court was a nullity. 7. A Certified copy of the judgment and decree in O.S.No.8108/1998 in favour of the landlord, the khatha certificate, tax paid receipts and encumbrance certificate and the sale deed executed by Syeda Fathima and khata certificate and tax paid receipts in favour of Syeda Fathima were the only material on the basis of which the petition was allowed and therefore would submit that there was no other material placed before the Court except the above judgment and decree in O.S.No.8108/1998 to contend that there was a relationship of landlord and tenant as between A.P. Shankar and Syeda Fathima and through her with the present respondent. He would hence submit that the case would fall within the mischief of law as laid down by above said decisions and would submit that the petition be allowed on this ground alone. 8. Shri. Shekhar Shetty, learned Counsel for the respondent would seek to justify the judgment and order impugned herein. However, there is no force in the submission of Sri Shekar Shetty to the contrary. The proposition of law as putforth namely, that the findings of a court which had declined jurisdiction to deal with the suit could not have been relied upon in arriving at a finding as to the jural relationship of Landlord and tenant or other facts which ought to have been independently found by the Court below. The proposition of law as putforth namely, that the findings of a court which had declined jurisdiction to deal with the suit could not have been relied upon in arriving at a finding as to the jural relationship of Landlord and tenant or other facts which ought to have been independently found by the Court below. If there was material available, it is not clear as to how the Court could have proceeded without reference to that material being made part of the record. It is unfortunate that the landlord had not chosen to produce that material and there was no reference to the same by the trial Court. The findings of the trial Court that having regard to the findings in Civil Suit in O.S.No.81008/1998, the jural relationship of landlord and tenant was established, is erroneous and cannot sustain the order of eviction. Accordingly, the petition is allowed and the order of eviction is set aside. 9. Before parting with the case however, it is to be noted that this would not preclude the respondent from resorting to an eviction petition a fresh on the ground of Section 27 (r) of the Act or such other ground as may be available.