Gujarat High Court
Marwadi Punamji Motiji vs Mohamad Siddique Musabhai Shaikh And ... on 18 February, 1993
Equivalent citations: AIR1993GUJ168, (1993)1GLR839, AIR 1993 GUJARAT 168
ORDER S.D. Dave, J.
1. This Civil Revision Application has been directed against the orders pronounced by the learned Civil Judge (JD), Kapadwanj in Regular Darkast No. 149/84 dismissing the objections raised by the present petitioner who happens to be the original defendant.
2. The opponents herein had filed the Regular Civil Suit No. 24/77 before the Court of the learned Civil Judge (S.D.), Kapadwanj, praying for a decree of eviction against the petitioner-tenant. The case put forth by the original plaintiff was to the effect that the defendant was their tenant in respect of certain premises bearing City Survey No. 6793 of Kapadwanj town and that, he was in arrears of rent for a period of more than 6 months. It was also alleged in the aforesaid suit that the defendant had encroached upon portion of the land admeasuring 15 ft. x 5 ft. before about 2 years of the filing of the suit and has put on a kachha construction on the same. The learned trial Judge has framed the issues and after the appreciation of evidence on record the learned trial Judge had come to the conclusion that the plaintiffs were not able to establish that the defendant is a tenant in arrears of rent for a period of more than six months. Any how the learned trial Judge while deciding the issue No. 4(b) had come to the conclusion that the plaintiffs were able to establish that the defendant has encroached upon the land admeasuring 15 ft. x 5 ft. in front of the rented premises. In view of this finding the learned trial Judge has granted the decree in respect of the abovesaid encroached portion of the land. The learned trial Judge had refused the decree of the rented premises, which was claimed on the ground of nonpayment of the rent for a period of more than six months. The abovesaid judgment dated 30th Oct., 1982 and the consequent decree were challenged by filing the Regular Civil Appeal No. 28/83 before the District Court, Kheda at Nadiad. The original plaintiffs had filed the cross-objections insofar as their claim was disallowed. By the judgment and decree dated 30th March, 1984 the learned 2nd Extra Assistant Judge, Nadiad was pleased to dismiss the appeal filed by the present petitioner but was further pleased to allow the cross-objections. The effect therefore of the orders in judgments and the decrees of the Courts below was that the plaintiffs were entitled to the decree of eviction in respect of both the premises, namely the rented premises and the encroached premises.
3. It appears that, thereafter the original plaintiffs have instituted the execution proceedings which came to be registered as Regular Darkhast No. 149/84. In this proceedings the present petitioner has raised the objection by urging that the decree sought to be executed was not in accordance with law and was a nullity and, therefore, the said decree could not be executed. The learned Civil Judge (J.D.), Kapadwanj by the orders dated 8th March, 1988 has dismissed the objections raised by the petitioner. The said orders of dismissal of the objections are being challenged in the present Civil Revision Application before this Court.
4. The contention raised by the learned Advocate Mr. Shah appearing on behalf of the petitioner is that the plaintiffs could not have approached the same court by filing one suit but praying for two different reliefs, one under the Bombay Rents Act, 1947 and the other one under the ordinary Civil law of the land. Mr. Shah has urged that if this is done the judgment and the decree would be nullity and that the same cannot be executed and that it would be open to the present petitioner the original defendant to resist the execution of such decree. Any how the contention raised by Mr. Popat the learned Advocate appearing on behalf of the opponent No. 1 is that the executing court could not and should not go behind the decree which is duly passed and that the frame of the suit would not go to show that the plaintiffs had preferred to ask for two prayers, one falling under the provisions of the Bombay Rents Act, 1947 and the other one falling under the ordinary Civil Law of the land. Mr. Popat therefore has urged that the present Civil Revision Application requires to be dismissed.
5. It cannot be disputed at all that by filing the Civil Suit No. 24/77 the plaintiffs had prayed for a decree of eviction against the present petitioner/defendant on two counts, firstly the case of the plaintiffs was that the defendant was a tenant in arrears of rent for a period of more than six months. The plaintiffs had also clearly averred in para-2 of the plaint that over and above the abovesaid ground the other ground on which they are entitled to a decree of eviction is the ground of trespassing upon the open land admeasuring 15 ft. x 5 ft. situated near the rented premises on which the defendant had constructed a kachha hut before about two years. It is indeed true that the present petitioner/defendant had disputed all the abovesaid averments. The learned trial Judge had framed two issues, namely Issue No. 3 and Issue No. 4(b) with a view to decide the two questions as to whether the defendant is a tenant in arrears as prayed for, and secondly as to whether the defendant has encroached upon the open land admeasuring 15 ft. x 5 ft. in front of the rented premises. The learned trial Judge ultimately has granted the decree in respect of the encroached portion only. But looking to the appellate orders it becomes clear that ultimately the plaintiffs were able to procure a decree in their favour against the petitioners on both the grounds, namely non-payment of rent for a period of more than six months and the encroachment or the trespass upon the piece of the property which was not the subject-matter of a lease. Looking to this position it cannot be disputed that the plaintiffs had preferred to approach the same forum by filing the suit but combining two prayers one forum clearly falling within the provisions of Bombay Rents Act, 1947 and the other one falling under the general law of the land.
6. The legal position emanating from such a situation is well settled. In Govindbhai Parshottamdas Patel v. New Shorrock Mills, Nadiad, 1984 (1) 25 Guj LR 156 : (AIR 1984 Guj 182), it has been held that, where a plaintiff has filed a suit claiming possession of the premises on the ground that the defendant is a trespasser, he cannot be permitted in the same proceedings to claim possession on any other ground available to him under the provisions of the Rents Act, 1947. It is also abundantly clear that in such circumstances the plaintiffs suit must fail, para 44 of the said decision on page-179 makes the position still clearer by saying that a composite suit invoking two different jurisdictions of the Court cannot be entertained by the Court and the plaintiff must make his choice right at the beginning, that is at the time of filing of the suit itself. The abovesaid observations made by this Court would go to show that when the Court below passed the decree for the above-said two prayers falling under two different compartments, namely one under the Bombay Rents Act, 1947 and the other under the general law of the land, the court had no jurisdiction. The decree therefore passed by the trial Court clearly appears to be a decree Without jurisdiction.
7. Mr. Shah, the learned Advocate appearing on behalf of the petitioner has firstly invited attention of this Court to a Supreme Court decision in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 : (1954 All LJ 551). Carving out a fundamental principle the Supreme Court says that if a decree is passed by the court without jurisdiction it is a nullity and 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. The abovesaid decision rendered by the Supreme Court came to be considered and followed in A. R. Antulay v. R. S. Nayak, AIR 1988 SC 1531 : (1988 Cri LJ 1661). Para-38 of the said decision makes a reference to the earlier Supreme Court decision in case of Kiran Singh (supra) and observes that a decree passed by the Court without jurisdiction is nullity and that its validity could be challenged whenever and wherever it is sought to be enforced or relied upon, including the stage of execution and even in the collateral proceedings. The abovesaid two decisions on which Mr. Shah has placed reliance would clearly go to show that a decree passed by the Court lacking the necessary jurisdiction is nothing but a nullity and can be challenged in. the execution proceedings.
8. Mr. Popat, the learned Advocate who appears on behalf of the opponent No. 1 would place reliance upon the Supreme Court decision in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, AIR 1970 SC 1475. But this decision in view of this Court would hardly render any assistance to the learned Advocate Mr. Popat, because para-7 thereof makes it abundantly clear that when the decree is made by a Court which has no inherent jurisdiction to make it, can be objected to at the execution proceedings. The qualification carved out by the Supreme Court on which Mr. Popat has placed heavy reliance is the qualification incorporated in the following words.
"But where the objections as to jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."
But the details in respect of the case of the plaintiffs put in the pleadings and the issues framed and decided by the Court would go to show conclusively that two prayers falling within different arenas were clubbed together and that, the abovesaid aspect is clearly discernible from the face of the decree and that it does not require any further examination in respect of the question raised. The second decision on which Mr. Popat has placed reliance is the decision of this Court in Nafisaben w/o. Badrudin Tofafarosh v. John alias Zenus Abdulkadar Babuji, (1981) 22 Guj LR 674 : (AIR 1982 (NOC) 138 (Guj)). This decision also would not strengthen the case of the opponents herein because it has been accepted in this decision that if there is inherent lack of jurisdiction then the decree of the Court would be a nullity. On the facts of the case it was noticed by this Court that the inherent lack of jurisdiction in the Court of Small Causes was not established. The facts which are apparent and which could not be overlooked were to the effect that the plaintiffs had framed the suit on the basis that the defendants were trespasser, inasmuch as the defendant had come to the premises in connection with an obsequial ceremony and had remained there. The defendants were none else but the daughter and daughter's husband of the deceased tenant. In view of these facts this judgment says that only that Court which has jurisdiction to decide the question of tenancy under Section 5(11)(c) will have jurisdiction under Section 28(1) of the Bombay Rents Act, 1947. Because of these facts and the principle laid down therein the said decision also would not further the case of the opponents any more.
9. The conclusion therefore is that the orders under challenge being not in consonance with the settled legal position, the present Civil Revision Application requires to be allowed, and the same is hereby accordingly allowed. The orders under challenge are hereby set aside and the execution proceedings filed by the opponents herein are ordered to be dismissed, with no order as to costs.
10. Rule is made absolute accordingly.