Madras High Court
T.S. Ramachandran Marthandan vs R. Basheeruddin on 28 January, 2000
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER
1. Aggrieved by the order in E.A.No.56 of 99 in E.P.No.61 of 98 in O.S.No.665 of 87 on the file of District Munsif, Tambaram, the judgment-debtor has filed the above revision before this Court.
2. The case of the petitioner before the Executing Court is as follows:-
The petitioner is a tenant in respect of building at No.31, Pillayarkoil St, Pallavaram, Madras-44 and in order to establish his case, he had filed not less than 52 documents. It is stated that he had established before the Executing Court that the machinery in The premises belong exclusively to him and over which the plaintiff has no right at all. The Executing Court had dismissed the application holding that the application is barred by principles of constructive resjudicata. It is further stated that the petitioner had an opportunity to defend his suit and when he had failed to do so, according to the Court below, he is precluded from raising the objection. It is also stated that participation or otherwise in a proceeding, lacking in jurisdiction, would not confer powers on the Court to assume jurisdiction, when the Civil Court has no jurisdiction over the subject matter and the powers are conferred only upon the Rent Controller, the participation of the petitioner herein in those proceedings has any relevance. He could resis the execution of the decree at the time of execution or even in a collateral proceedings. The learned District Munsif did not even bother to scrtunise his case independently, but had chosen to confine himself with the decree. The approach of the learned Judge is irregular. It is also stated that the Civil Judge at Tambaram has no jurisdiction to entertain the execution proceedings pursuant to the notification and orders issued by the Government. The Court at Tambaram ceases to have jurisdiction and the matter is entrusted with the District Munsif Court at Alandur (Saidapet). Therefore, the entertaining of the execution proceedings itself by the Munsif Court at Tambaram is against me specific notification of this Court. In the absence of territorial jurisdiction, the proceedings of the Court below are liable to be set at naught.
3. The case of the respondent is briefly stated hereunder:- Under a deed of lease agreement entered into on 1.4.1981, the petitioner had become a tenant in respect of the land, building, machineries, furniture, fittings and other assessories described in The schedule to the said agreement. The tenancy was monthly tenancy and the monthly rent wa Rs.750. The petitioner has paid the rent at the rate of Rs.750 per month for the period of two years from the date of commencement of the tenancy. Thereafter, he did not pay the rent and subsequently, he sent two cheques for Rs. 150 each alleging 10 be the monthly rent, which was not accepted by him. Thereafter, he filed O.S.No.665 of 1997 for directing the defendant to vacate and deliver possession of the property. In the said suit, the defendant filed written statement in April, 1991 after a long delay. The original suit was decreed ex parte on account of the defendant's non-appearance. Thereafter it was set aside. Subsequently, after framing of issues, the suit was posted for trial and included in the special list of cases to be taken up for trial on 25.9.92. The suit was taken up for trial on 21.10.92 and his evidence was taken and was adjourned five times for the purpose of his cross-examination. The defendant did not appear and therefore an ex parte decree was passed on 18.11.92 decreeing the suit for delivery of possession based on his evidence, both oral and documentary. Thereafter, the petitioner filed a petition for setting aside the ex parte decree in I.A.No.359 of 93. The Trial Court by order dated 22.6.1994 dismissed the said application since the petitioner has not given any acceptable reason. Thereafter, the petitioner filed appeal C.M.A.No.30 of 94 on the file of sub-Judge, Poonamalle and the same was dismissed on 18.6.1998. Thereafter, the petitioner filed C.R.P. No. 3219 of 98 before this Court and this Court by order dated 5.11.98, dismissed the revision confirming the orders of the Courts below. As against that, the petitioner preferred Special Leave Petition No. 3161 of 99 in the Supreme Court of India and the said S.L.P was also dismissed by the Supreme Court on 15.3.99. Thereafter, the respondent filed execution petition for delivery of possession pursuant to the decree and the petitioner herein filed an application under Section 47 of CPC i.e. in E.A. No. 56 of 99 in E.P. No. 61 of 98. The petitioner had contended in that application that he is a tenant in respect of the land and building and that he is a statutory tenant entitled to his protection provided under the Rent Control Act and the Rent Controller alone has got jurisdiction' and the Civil Court has no jurisdiction. It is also stated that the petitioner could not establish his case because of the ex parte decree, hence the decree is null and void. The District Munsif, Tambaram has no jurisdiction to execute the decree. The said application was resisted by the respondent herein by filing detailed counter affidavit. The Court below after considering all the aspects including the dismissal of his appeal, Revision and the S.L.P. by the highest Court and after holding that it has jurisdiction to execute the case, dismissed the E.A. No. 56 of 99.
4. In the light of the above factual position, I have heard Mr. V. Raghavachari, learned counsel for the petitioner and Mr. B.T. Seshadri for the respondent.,
5. The only point for consideration is whether the Executing Court is right in dismissing E.A.No.56 of 99 filed by the petitioner under Section 47 CPC to dismiss the execution petition E.P.No.61 of 98 and in O.S.No.663 of 87 filed by the respondent decree-holder.
6. Mr. V. Raghavachari, learned counsel for the petitioner has raised the following contentions:-
(i) Inasmuch as the petitioner is a statutory tenant entitled to protection under the Rent Control Act, the decree in O.S.No.665 of 1987 is a nullity and the same cannot be executed; hence the execution petition filed by the respondent is liable to be dismissed;
(ii) The District Munsif's Court at Tambaram has no jurisdiction to entertain the above execution petition; accordingly the same is liable to be dismissed for want of territorial jurisdiction.
7. Mr. B.T. Seshadri, learned counsel for the respondent, after taking me through the entire earlier proceedings commencing from the relief prayed for the suit and ending with the order passed by the Apex Court, would contend that in asmuchas the petitioner had become a tenant in respect of the land, building, machineries, furniture, and other accessories, the suit filed by the plaintiff before the Civil Court is maintainable and the Civil Court alone has jurisdiction and the same has been rightly decreed. He also contented that the District Munsif s Court at Tambaram alone has got jurisdiction; accordingly the execution petition laid before the said Court is maintainable.
8. I have carefully considered the rival submissions.
9. With regard to the first contention, it is useful to refer the averments in the plaint in O.S. No. 665 of 1987 filed by the respondent herein plaintiff in that suit. In paragraph 3 of the plaint, it is specifically sated as follows;-
"The plaintiff states that the defendant is a tenant under the plaintiff in respect of the land and building bearing door No.31, Pillaiyarkoil Street, Pallavaram, Madras-44, together with a pinto rotary 20 Horse Power Motor, Fan, Tube lights, furnitures, fillings, etc. more fully described in the schedule hereunder a monthly tenancy rent of Rs.750 (Rupees Seven hundred and fifty only) the tenancy being a monthly tenancy according to the English calendar....."
Apart from the said specific allegation, all the necessary details have been furnished in the schedule. A perusal of the averments in the plaint shows that the plaintiff has let out not only the land, but also the building, machineries, furniture, fittings and other accessories as described in the Schedule to the Agreement. In such a circumstance, it is too late for the petitioner to contend that the machineries in the premises belong to him exclusively and the plaintiff has no right at all.
10. It is also worth-while to refer the conduct of the petitioner in dragging on the matter for mere a decade. I have a ready stated that the suit has been filed by the respondent/plaintiff in the year 1987 for directing the defendant to vacate and deliver possession of the property. In the very same plaint, the plaintiff has specifically alleged that the defendant failed and neglected to pay the rent from 1.1.84. Initially since the defendant failed to file a written statement, the suit was decreed ex parte and thereafter, it was set aside and he was permitted to file written statement which he did in April, 1991. Thereafter, when the suit was posted for trial and included in the special list of cases to be taken up for trial on 25.9.92, the same was adjourned and posted to 21.10.92. It is further seen that after completion of the evidence of the plaintiff, the same was adjourned five times for the purpose of cross-examination of the plaintiff. The defendant did not appear. His counsel also did not appear. Therefore, an ex parte decree was passed on 18.11.1992 decreeing the suit for delivery of possession based on his evidence both oral and documentary. Though the learned District Munsif has not posted a detailed order, the fact remains that based on the averments in the affidavit, the plaintiff himself was examined as P.W.1 and certain documents were marked in support of his claim. After satisfying the case of the plaintiff, the Court below in the absence of any contra evidence from the side of the defendant, decreed the suit as prayed for. Thereafter, the petitioner filed a petition I.A.No.359 of 1993 to set aside the ex pare decree. The said application was contested by the respondent herein and after elaborate enquiry, the Trial Court dismissed the petition by order dated 22.6.94 holding that the petitioner has not given any acceptable reason for the non-appearance when the matter has been adjourned and therefore, he declined to set aside the ex parte decree. Thereafter, the petitioner filed C.M.A.No.30 of 1994 before the Sub-Court, Poonamalle. The learned Subordinate Judge after considering the case of the petitioner, dismissed the appeal on 18.6.93. Thereafter, the petitioner preferred C.R.P.No.3219 of 1998 before this Court and this Court after holding that since the Courts below have concurrently found that the petitioner had not established his case, the Court was not inclined to interfere with the orders passed by the lower Appellate Court, dismissed the Revision. Then the petitioner preferred Special Leave Petition No.3161 of 1999 before the Supreme Court of India. The Hon'ble Supreme Court dismissed the said petition on 13.3.1999 in limias. Thereafter, the petitioner filed Execution petition for delivery of possession. It is clear that inspite of an opportunity to contest the case of the plaintiff after filing written statement and inspite of granting further time, the petitioner filed to utilise the said opportunity; accordingly an ex parte decree was passed based on the claim of the plaintiff. His failure to appear and contest the suit and other reasons were considered by the Sub-Court, Poonamalle, this Court as well as the Apex Court in the appeal, revision and Special Leave Petition respectively and rejected the case of the petitioner as unacceptable.
11. In this back ground, now I shall consider whether the petitioner is entitled to raise the same contention once again. As stated earlier, even though no such elaborate order has been passed by the Trial Court, in the light of the specific averments made by the plaintiff including the fact that the petitioner had become a tenant not only in respect of the building, but also machineries, furniture and other accessories the plaintiff has let in evidence, as PW1 and also marked certain documents. On the basis of the detailed pleadings as well as the oral evidence of P.W. 1 and the documents filed in support of his claim, the Trial Court decreed the suit. In such a circumstance, the petitioner is estopped from contending that he is a statutory tenant, that the machineries are belonging to his and that it is only the Rent Control Court which has jurisdiction to try the suit claim.
12. Mr. Raghavachari, learned counsel for the petitioner, by pointing out certain documents contended that the machineries and accessories are belonging to the plaintiff/petitioner herein; accordingly the decree granted by the Trial Court cannot be sustained. For this, Mr. B.T. Seshadri has brought to my notice that in the appeal C.M.A. No.30 of 1994 before the sub-Court, Poonamalle filed by the petitioner herein, he also filed I.A.No.336 of 1995 for reception of certain documents. In the application the petitioner has included about 18 documents for consideration of the learned Sub- ordinate Judge. The learned Sub-ordinate Judge in his order dated 18.6.1998 has arrived at the following conclusion:-
In the light of the above conclusion of the learned Sub-ordinate Judge which was arrived at on consideration of all the documents submitted by the petitioner, I am of the view that the learned counsel of the respondent is right in contending that it is not open to the petitioner to raise the same issue once again in the Execution proceedings. After going through the documents referred to by the petitioner as well as the order passed by the learned Sub-ordinate Judge in C.M.A.No.30 of 1994 dated 18.6.1998, I am unable to accept the argument of Mr. V. Raghavachari.
13. Now I shall consider various decisions cited by both side. Mr. V. Raghavachari, after pointing out that only the Rent Control Court has jurisdiction and the decree passed by Civil Court is without jurisdiction and the same is a nullity. He also contended that the same can be challenged even at the stage of execution. In support of his contention, he relied on the following decisions:- In Kiran Singh v. Charman Paswan, , their Lordships have held that it is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. Their Lordships have also held that a defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. In Sushil Kumar Metha v. Gobind Ram Bohra, , Their Lordships of the Supreme Court have observed that even if a decree which is made without jurisdiction and is a nullity is allowed by the Courts below to operate and is executed during the pendency of S.L.P. Supreme Court would grant relief to the aggrieved party from injustice by setting aside the execution order. In the case of Hiralal Moolchand Doshi v. Barot Raman Lal/Ranchhoddas(dead by L.R.S., , their Lordships have observed that a decree is said to be a nullity if it is passed by a Court having no inherent jurisdiction. Their Lordships have also observed that merely because a Court erroneously passes a decree or there is an error white passing the decree, the decree cannot be called a nullity and that the decree to be called a nullity is to be understood in the sense that it is ultra vires the powers of the Court passing the decree and not merely voidable decree. In the case of Chirenjilal Shrilal Goenka v. Jesjit Singh, the Hon'ble supreme Court has held that decree passed without jurisdiction is a nullity and is non est and that question of its invalidity can be raised even is execution stage. Same thing has been reiterated in Sabitri Dei v. Saarat Chandra Rout, ; in Kesar Singh v. Sadhu, ; and Union of India v. Sube Ram, . There is no dispute with regard to the proposition of law referred to in all these cases. I have already stated the specific case of the respondent/plaintiff that what was leased out to the petitioner/defendant is the land and building bearing Door No.31, Pillayar Koil Street, Pallavarm, Madras-44 together with a pinto rotary 20 Horse Power Motor, fan, tube lights, furniture, fittings, etc., Even though the defendant has filed a written statement, he did not participate in the further proceedings; accordingly the Trial Court on the basis of the pleadings as well as the oral evidence of P.W.1 and documents produced granted a decree as prayed for. Further, even the petitioner as P.W.1 categorically admitted in his cross-examination that as per Ex.B.52, xerox copy of the plaint in O.S.No.665 of 1987, it is shown that both the building and machineries have been let out to him. Ex.R-1 is the certified copy of the plaint filed in the said suit along with Rough Sketch and R-2 is the certified copy of the written statement filed by P.W.1. A perusal of the Schedule of property as detailed in Ex.R.1 shows that both the land, building and machineries had been leased out to the petitioner-defendant. Like wise, I have already stated that even the documents relied on by the petitioner have been considered by the Appellate Judge while disposing the Civil Miscellaneous Appeal. Here again, it is worth-while to refer the evidence of P.W.1, who has stated in cross-examination that when he filed the appeal as against the order passed by the Sub-Court along with an application to admit few of the exhibits marked to be accepted as additional documents, both the appeal as well as the application to receive additional documents were dismissed. In this regard, it is relevant to refer a decision of Jagadeesan, J., reported in Achamma George v. R. Krishnaswamy, 1998 (1) L W 498. In similar circumstances, after referring to the ex parte decree granted by the Trial Court and similar petition filed under Section 47, C.P.C., the learned Judge, after referring to various Judgments of this Court as well as the Supreme Court, has observed thus:-
10. From the above referred Judgments, it is very clear that the ex parte decree would attract the principles of res judicata in accordance with Section 11 of the C.P.C. where the issues involved in the earlier and subsequent proceedings are the same and the party was put on notice about the same in the earlier proceedings. As already stated, the petitioner was fully aware about the pleadings in the plaint and he has filed the written statement disputing the averments made in the plaint. But, unfortunately, in the language of the learned counsel for the petitioner, the petitioner remained ex parte. The proceedings initiated for selling aside the ex parte decree also ended adverse to him. In such case, it is not open to him to raise the same plea by way of an application under Section 47 of the CPC. In view of the above finding, it cannot be said that the decree is a nullity".
In the light of the factual position in our case, as discussed above, I am in agreement with the view expressed by the learned Judge and the said principle is applicable to our case also. In such a circumstance, the contra argument made by the learned counsel for me petitioner that the decree of the Trial Court is to be set aside on the ground of nullity, want of jurisdiction etc., are liable to be rejected. Further, in as much as similar contentions have been raised and rejected by the Sub-Court, this Court as well as the Supreme Court, the petitioner cannot be allowed to raise the same objection once again in the execution proceedings. As observed by Subramani, J., in the case of Velayudha Gramani v. Dhannalingam and 15 Ors., 1997 (3) LW 816, even ex parte decree operates as res judicata and defendant's failure to appear will not deprive plaintiff of the full benefits of his decree. In the light of the above discussion, I am unable to accept the argument of the learned counsel for the petitioner,
14. Regarding jurisdiction, it is seen from the proceedings that the District Munsif's Court at Tambaram has got jurisdiction to execute the decree. There is no dispute that on an earlier occasion an execution petition was filed before the District Munsif, Tambaram and it was closed on account of appeal filed by the petitioner. In as much as the execution petition was closed on account of statistical purpose, the learned counsel for the respondent is right in contending that further execution is only by way of reminder and therefore, the Tambaram Court has got jurisdiction. The said aspect has been reiterated by Ratnam, J., (as he then was) in the case of Muthu Pukhraj Ratanjee v. Ganesh Null Adaji, 1983 (96) LW 6. I am satisfied that the District Munsif's Court at Tambaram has got jurisdiction and the execution petition filed by the respondent before that Court cannot be assailed.
15. In the light of what is stated above, I do not find any error of law of jurisdiction in the impugned order; accordingly the Civil Revision Petition fails and the same is dismissed with costs of Rs. 1,000 (Rupees one thousand only). Consequently, both the C.M.Ps., are also dismissed.