Gauhati High Court
Md. Isha Haque vs Md. Azadur Rahman Hazarika And Ors. on 29 January, 1993
Equivalent citations: AIR1993GAU72, AIR 1993 GAUHATI 72, (1993) 2 RENCJ 53, (1993) 1 GAU LR 92, (1993) 2 CURCC 319, (1994) 1 RENCR 232
JUDGMENT D.N. Baruah, J.
1. In this petition, the petitioner has invoked the power of this Court under Article 227 of the Constitution of India as well as under Section 115 of the Civil Procedure Code against the orders dated 5-3-1990 passed by the 1st Assistant District Judge, Kamrup, Guwahati in Miscellaneous Appeal No. 33 of 1989, dated 18-5-1989 passed by the Sadar Munsiff, Guwahati in Misc. (J) Case No. 84/87 arising out of Title Suit No. 184/87 dismissing the petition for setting aside the ex parte decree. The petitioner has also challenged the order dated 11-9-1987 passed by the Munsiff, Guwahati ex parte decreeing the suit.
2. The fact for the purpose of this case are as follows:--
The petitioner had been in possession of a plot of land measuring 1 Katha 10 Lechas situated in (sic) Guwahati for last 30 years. The said land originally belonged to Mohiban Nessa, wife of late Majibur Ali. Mohiban Nessa had no near relations to look after her in, her old days; she, therefore, out of natural love and affection gifted away the said land to the petitioner during her life time. Petitioner having received the said land by way of gift constructed an Assam type house on the said land sometime in the year 1956 and since then he had been living in the said house with the donor Mohiban Nessa. Mohiban Nessa died in the year 1979.
After the death of Mohiban Nessa the first opposite party claimed to be the owner of the said land and threatened the petitioner with forcible dispossession from the said land and in fact he attempted to dispossess the petitioner even though according to the petitioner he had no right, title and interest over the said plot of land.
Having no alternative the petitioner filed a suit (Title Suit No. 45/87) in the Court of Munsiff, Guwahati for declaration of his right, title, interest and possession over the said plot of land. In the said suit an application for temporary injunction restraining the first opposite party from dispossessing the petitioner from the suit land was filed. In due course the case was transferred to 2nd Munsiff. 2nd Munsiff by order dated 23-6-1987 granted ad-interim injunction restraining the first opposite party from dispossessing the petitioner from the suit land and a notice of injunction as well as the summons for the suit was were served.
Thereafter the first opposite party instituted a suit (Title Suit No. 184/87) and collusively obtained an ex parte decree for eviction even though a caveat was filed in the Court of the Munsiff, Guwahati. No summons was served on the petitioner. However, on 16-9-1987 he came to know about the filing of the suit for ejectment by the first opposite party against the petitioner in respect of the suit land and the house. The Court according to the petitioner without making proper enquiry proceeded with the suit ex parte and granted a decree by his order dated 11-9-1987.
On coming to know the petitioner filed an application under Order 9, Rule 13, C.P.C. which was registered as Misc. Case No. 84/ 87. The Munsiff by his order dated 18-5-1989 dismissed the petition holding, inter alia, that the petitioner failed to prove his case that the summons was not duly served.
Against the said order dated 18-5-1989 the petitioner preferred a miscellaneous appeal before the 1st Assistant District Judge, Kamrup, Guwahati. The Assistant district Judge also by his order dated 5-3-1990 dismissed the appeal holding that the Munsiff rightly dismissed the petition under Order 9, Rule 13. Hence the present petition.
3. I have heard both sides.
Mr. N.M. Lahiri, learned counsel appearing on behalf of the petitioner submits that the impugned orders are without jurisdiction and liable to be set aside. His submissions are two fold. First that there being no proper and acceptable evidence to show that the summons were duly served on the petitioner and therefore, Courts below ought to have set aside the ex parte decree. He further submits that the petitioner had already filed a suit for declaration of his right, title and interest over the suit land and the house standing thereon and obtained a temporary injunction restraining the defendants i.e. the first opposite party from disturbing petitioner's possession. This fact was completely suppressed by the opposite party and when this matter was brought to the notice of the Courts below the Courts below completely ignored that aspect of the matter. Hence, according to him the impugned order passed by the Munsiff and affirmed by the first Appellate Court was nothing but refusal to exercise jurisdiction vested on them and, therefore, the impugned orders dated 5-3-1990 and 18-5-1989 are liable to be set aside and quashed. Secondly, the impugned decree passed on 11-9-1987 is a nullity. In fact, it is nonest and, therefore, this is not binding on the petitioner. This Court in exercise of the power under Article 227 should set aside the said decree. According to him in a suit for decree under Assam Urban Areas Rent Control Act, the Court has jurisdiction to pass a decree only when he is satisfied about the existence of any of the conditions mentioned in Section 5 of the said Act. There being no discussion about those conditions and the impuned decree having not indicated the existence of any of the conditions, the Court had no jurisdiction to pass decree for eviction under the said Act. In fact such a decree is a nullity and that can be challenged at any stage and in any forum.
Mr. J.N. Sarma, learned counsel for the first opposite party, on the other hand, supports the impugned orders including the decree. Mr. Sarma submits that the findings regarding service of summons on the defendants arrived at by the trial Court as well as the First Appellate Court are the findings concluded by facts and therefore, this Court in revisional jurisdiction may not interfere with such findings.
4. On the basis of the contentions of the learned counsel for the parties it is to be seen whether the findings arrived at by the Courts below can be sustained.
Regarding the service of summons Mr, Lahiri submits that the signature on the summons was disputed by the petitioner and in fact in his own evidence he has stated that no summons was served. However, both the trial Court as well as the first Appellate Court appreciating the evidence of the witnesses came to the findings that summons were duly served and the Exhibit Ka(1) is the signature of the petitioner. As this finding is concluded by the finding of facts, I am not inclined to interfere with the said finding. Therefore, the first contention, of Mr. Lahiri, in my opinion, is not sustainable and accordingly it fails.
The second submission is that the impugned ex parte judgment and decree passed on 11-9-1987 is not a judgment in the true sense of the term inasmuch as the trial Court had no jurisdiction to grant such decree without first discussing the existence of one of the conditions mentioned in Section 5 of the Assam Urban Areas Rent Control Act. Therefore, this ex parte judgment and decree dated 11-9-1987 is a nullity. In fact, it is non est and, therefore, invoking the power under Article 227 of the Constitution this Court may set aside the said decree.
5. Under Section 5 of the Assarri Urban Areas Rent Control Act, 1972 (for short, 'the Act'), no order or decree for recovery of possession of any house shall be made and executed by any Court so long the tenant pays rent to the full extent allowable under the Act and performs the conditions of the tenancy. Proviso to the said section, however, em-powers a Court to grant an ejectment decree on the conditions mentioned in Clauses 5(1 )(a) to 5(1)(f). Therefore, a Court has jurisdiction to pass an ejectment decree when the Court is satisfied as to the existence of any one or more of the conditions mentioned in the said Section. In other words, if the Court passes an order without considering the existence of any of the conditions, such order will be contrary to the scheme and provisions of the Act.
6. Mr. Lahiri places reliance on the decisions in Ferozi Lal Jain v. Man Mal and Anr., reported in AIR 1970 SC 794; Smt. Kaushalya Devi v. K. L. Bansal, AIR 1970 SC 838 and Inder Mohan Lal v. Ramesh Khanna, AIR 1987 SC 1986.
In case of Ferozi Lal Jain (supra), the Supreme Court while dealing with the Delhi and Ajmer Rent Control Act, 1952 held that from the provisions contained in Section 13 of the said Act a decree for recovery of possession can be passed by any Court only if the Court is satisfied that one or more of the grounds mentioned in the said Section have been proved. In the said case the Apex Court further held at page 796-
"............It is clear from the record that the court had proceeded solely on the basis of the compromise arrived at between the parties. That being so there can be hardly any doubt that the Court was not competent to pass the impugned decree. Hence the decree under execution must be held to be a nullity."
In Nagindas Ramdas v. Dalpatram Iccha-ram reported in AIR 1974 SC 471 again it was held that a compromise decree for eviction could be passed in view of the Rent Act. The Supreme Court held that the Rent Act enjoined the eviction only on satisfaction of the Court. The respondent-landlord in that case instituted a suit under Bombay Rent Act, 1947 for possession against tenant on two grounds, namely, non-payment of arrear of rent and bona fide requirement of the premises for personal use and occupation. A compromise was effected. When the appellant applied for execution of a decree, the tenant contended that the compromise decree had been passed by the Rent Court without satisfying itself as to the existence of the grounds of eviction under the Act and hence the decree was a nullity and was not executable. The Supreme Court held that the Rent Act was for the protection of the tenant against unreasonable eviction and in the light' of the said policy it should be held that the Rent Court under the Act was not comptent to pass a decree for possession either in invitum or with the consent of the parties on a ground which is de hors the Act or ultra vires the Act. It was further held in the said case that existence of one of the statutory grounds mentioned in Sections 12 and 13 was sine qua non to exercise the jurisdiction of the Rent Court. Parties by their consent could not confer jurisdiction on the Rent Court to do something which according to the legislative mandate it could not do. But if at the time of passing of the decree there was some material before the Court on the basis of which the Court could prima facie be satisfied about the existence of statutory grounds for eviction, it could be presumed that the Court was so satisfied and the decree for eviction though passed on the basis of the compromise would be valid. Such material may be in the form of evidence recorded or produced or it may partly or wholly be in the shape of express or implied expression made in the compromise agreement. Again in Inder Mohan Lal v. Ramesh Khanna (supra) the Supreme Court reiterated the same view.
7. From the decisions cited above, the law is now well settled that a Court has no jurisdiction to pass an ejectment decree under any Rent Control Act without being first satisfied as to the existence of one or more of those conditions contained in the Act for ejectment of a tenant.
8. In the above premises, it is to be seen whether the impugned ex parte decree dated 11-9-1987 was passed in the aforesaid Title Suit No. 184/87 in exercise of Court's jurisdiction. The impugned judgment and decree dated 11-9-1987 is extracted below:--
"The plaintiff is present for ex parte evidence. He is released after recording his ex parte evidence. Heard learned counsel for the plaintiff ex parte. Examined the record. It is seen that the plaintiffs case is proved ex parte. So, the suit is decreed ex parte without cost."
From the reading of the judgment and order extracted above it does not appear that the Sadar Munsiff, Guwahati before passing the impugned judgment and decree did apply his mind to the relevant conditions. The judgment and decree does not indicate on what ground the eviction order was passed. As stated above, proviso to Section 5 of the Act confers jurisdiction to grant an ejectment decree only when the Court is satified as to the" existence of any of the conditions mentioned in Sections 5(1)(a) to 5(1)(f). The impugned judgment and order is absolutely silent. A bare reading of the judgment and order shows that the impugned judgment and order was passed without proper application of mind. In my view, therefore, the impugned judgment and order is without jurisdiction and as held by the Supreme Court it is non est. In Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193 the Supreme Court held-
"............ A decree passed by a court without 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 invalidity 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......"
9. The petitioner has mainly invoked this Court's power under Article 227 of the Constitution. Whether under the facts and circumstances of the case this Court can interfere with the impugned judgment invoking the power under Article 227 of the Constitution.
Mr. Lahiri, learned counsel for the petitioner placed reliance on the decisions in Aswini Kumar Pramanik v. Dominion of India, reported: in AIR 1952 Cal 251; Vishes Kumar v. Shanti Prasad, reported in AIR 1980 SC 892, (1980 All LJ 411); Aundal Ammal v. Sadasivan Pillai, reported in AIR 1987 SC 203 and Mani Nariman Daruwala v. Phiroz N. Bhatena reported in (1981) 3 SCC 141 : (AIR 1991 SC 1494).
Mr. Sarma, learned counsel for the opposite party on the other hand places reliance on two decisions in Keshardeo Chamria v. Radha Kissen Chamria reported in, AIR 1953 SC 23 : (1953 All LJ 101) and Vishesh Kumar v. Shanti Prasad (supra).
In Aswani Kumar Pramanik's case a Division Bench of the Calcutta High Court held that in case there is difficulty in interfering with a case under Section 115 of the Code of Civil Procedure the High Court can interfere under the powers given to the High Court under Article 227 of the Constitution of India. However, the said Court further held that interference under that Article should only be resorted to in rare cases where real injustice would be done if the Court could not interfere. Interference under the said Article may be necessary to protect a person from manifest injustice done to him.
In case of Vishesh Kumar (supra) the Supreme Court held that a revision petition under Section 115 of the Code of Civil Procedure if not maintainable the provisions of Article 227 of the Constitution cannot be substituted inasmuch as a revision petition under Section 115, C.P.C. is a separate and distinct proceeding from a petition under Article 227 of the Constitution and one cannot be identified with the other. Similar view was also adopted by the Supreme Court in Aundal Ammal (supra). In that case it was argued that as a revision under Section 115, C.P.C. was not applicable the said petition should be converted into a petition under Article 227.
However, the Supreme Court rejected the said contention.
In this case the petitioner has invoked the power under Article 227 of the Constitution only. Therefore, in my view the said decisions are not applicable in this case.
The decision cited by Mr. Sarma in Keshardeo Chamria (supra) is not applicable under the facts and circumstances of this case.
In a case of Mani Nariman (supra) the Supreme Court dealing with the power of the High Court under Article 227 of the Constitution held at page 1499 -
"......... ...In the exercise of this jurisdiction the High Court can set aside or ignore the findings of fact of an inferior court or tribunal if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the court or tribunal who (sic) has come or in other words it is a finding which was perverse in law. Except to the limited extent indicated above the High Court has no jurisdiction to interfere with the findings of fact. (See: Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, (1986) 4 SCC 447 : (1986) 3 SCR 866 : AIR 1987 SC 117). Applying these tests we are unable to persuade ourselves to hold that the findings recorded by the appellate Bench suffer from such an infirmity so as to justify interference with the said finding under Article 227 of the Constitution."
10. It is a settled law that the power of superintendence conferred upon the High Court under Article 227 of the Constitution is not confined to administrative superintendence only, but includes the power of judicial revision also even where no appeal or revision lies to the High Court under ordinary laws. However, this power does not vest the High Court with unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of the fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes. Where any authority passes order which is manifestly wrong and without jurisdiction the High Court defintely has a power under Article 227 to interfere with the order. In short, the jurisdiction under Article 227 is limited to only examining whether the subordinate Court kept itself within the bounds of its authority in reaching the finding. Therefore, it is now well settled that High Court in an appropriate case where the Subordinate Court or authority has committed manifest error of law or passed any order without any jurisdiction definitely can interfere.
11. In the present case the impugned judgment was passed decreeing the suit ex parte without considering the existence of any one of the grounds mentioned in Sections 5(1)(a) to 5(1)(f). As held by the Supreme Court such a decision is nullity and it can be challenged at any forum at any stage. In this regard I find sufficient force in the contention of Mr. Lahiri that the impugned judgment is not sustainable in law and it is liable to be quashed, may be by invoking the power under Article 227 of the Constitution. Accordingly, I set aside the impugned ex parte judgment and decree dated 11-9-1987 and restore the suit to file. The learned Munsiff shall take up the case for trial.
Parties shall appear on 24th of February, 1993. On that day the petitioner-defendant shall file the written statement positively/He shall also pay a sum of Rs. 300/- as costs to the opposite party for setting aside the ex parte judgment and decree and restoration of the suit to file.
In the facts and circumstances of the case I make no order as to costs.