Patna High Court
Syed Askari Hadi Ali Augustine Imam ... vs Gulshan Sahkari Grih Nirman Samiti ... on 9 December, 1997
Equivalent citations: 1998(1)BLJR250
JUDGMENT Sachidanand Jha, J.
1. This Civil revision by the defendant is directed against order dated 5th July, 1997 passed by the IInd Subordinate Judge, Patna, in Title Suit No. 402 of 1986. By the said order the application filed by the petitioner to decide certain issues as preliminary issues in the suit under Order XIV Rule 2 of the Code of Civil Procedure has been rejected.
2. The issues which the petitioner wanted to be decided as preliminary issues are (i) Is the suit legally pending? (ii) Does the cause of action subsist, if not, whether the cause of action was extinguished even before filing of Misc. Case No. 50 of 1990 and (iii). Is the admission of the plaint of the "instant suit on 9.7.91 to be treated as fresh suit under Order VII, Rule 13, CPC instituted after period of limitation?
3. The plaintiffs-opposite party filed. Title Suit No. 402 of 1986 for a decree of specific performance of contract of sale. It is; not necessary to notice the plaintiffs' case for the disposal of this civil revision except to mention that according to them, on 3.10.82 an agreement was entered into between the defendant-petitioner and one Janak Pd.: Singh and Yadu Nandan Raut for sale of 4 acres of land situate on Fraser Road in Patna Town, pursuant where to sum of Rs. 3,25,011 was paid as earnest money. The sale deed was to executed for a consideration of Rs. 8 Lacs. According to the plaintiffs, the said Janak Pd. Singh and Yadu Nandan Raut later assigned their interest under the aforesaid agreement to them. (These facts have been gathered from the revision petition filed in Civil Revision No. 487 of 1992 between the parties).
The suit was filed on 16-10-86. In paragraph-30 of the plaint the plaintiffs stated that plaintiff No. 1, a registered Cooperative Society, had been exempted from payment of Court-fee. On 31.1.87 the Court asked the plaintiffs to substantiate the said statement. According to the petitioner, the plaintiffs neither filed any document to substantiate the said statement regarding exemption nor paid the Court-fee. On 30.3.90, in, the circumstances, the suit was dismissed in default. On 14.11.90 the plaintiffs filed Misc. Case No. 50 of 1990 under Order IX Rule 4 read with Section 151 of the Code of Civil Procedure for restoration of the suit. On 20.4.91 the suit was restored. The petitioner challenged the order by way of civil revision (CR No. 487 of 1992) in this Court which was dismissed on 21.9.95. Petition for recall of the order dated 21.9.95 was also dismissed on 13.11.95. The petitioner filed SLP which too was dismissed by the Supreme Court in course of time.
4. According to the petitioner, Misc. Case No. 50 of 1990 was not maintainable. The application for restoration can be filed under Order IX, Rule 4 of the Code only where the suit has been dismissed either under Rule 2 or Rule 4. In the present case as the plaintiffs had failed to pay the Court-fee on the plaint, in terms of Order VII, Rule 11(c) of the Code, plaint would therefore be deemed to have been rejected under that rule for which the remedy was to prefer appeal because an order rejecting the plaint amounts to decree under Section 2(2) of the Code. It is said that the plaintiffs finally paid the Court-fee of Rs. 19,500 after the suit was restored on 8.5.91. The plaint was admitted only thereafter on 9.7.91 and summons were issued. Since the suit cannot be said to have remained pending and would be deemed to have been instituted only on 9.7.91, the suit is barred by limitation with respect to the cause of action for which it was initially filed. The Court below therefore ought to have decided the issues in question as preliminary issues in order to save the parties of the unnecessary harassment and also save the time of the Court. It is contended that the questions involved are pure question of law and fall within the ambit or Order XIV, Rule 2(2) of the Code.
5. The Court below by the order under revision rejected the application of the petitioner to decide the issues as preliminary issues observing, inter alia, that the same would, be decided alongwith other issues at the stage of trial.
6. It may be mentioned here that at the very outset of the hearing of the case . it was pointed out to Mr. Shashi Shekher Dwivedi, Learned Counsel for the petitioner, that the Court below has merely postponed decision on the issues till the stage of trial. Any decision on merit of the issues by this Court may cause prejudice to the petitioner, in the event they are decided against him. Mr. Dwivedi after taking instructions from the client stated that the petitioner is prepared to take the risk of adverse findings. He accordingly made submissions on merit and invited this Court to decide the question on merit.
7. Mr. Dwivedi submitted that where the suit is restored under Rule 4 of Order IX rightly or wrongly, restoration relates back to the date of institution of the suit. But where the suit has not been admitted, the provisions of Order IX are not applicable and, therefore, there is no question of restoring the suit. The order dated 20.4.91 allowing Misc. Case No. 50 of 1990 restoring the suit must therefore be deemed to be without jurisdiction and a nullity. In that view of the matter, he contended, the fact that neither this Court nor the Supreme Court interfered with the order is of no consequence. In support of the petitioner's case that dismissal of the suit in the present case should be treated as an order of rejection of plaint, he placed reliance on Chamru Thakur v. Basudeo Narayan . In support of the contention that an order of rejection should be deemed to be a nullity, that is, nonest in the eye of law, and therefore not binding on the petitioner he cited several authorities. There can be no exception to the preposition that a suit can be dismissed only after its admission and, therefore, the order dated 30.3.90 would be deemed to be one of rejection of plaint, and further that an order which is a nullity does not bind the party in subsequent proceeding or at a subsequent stage in the same proceeding. The point for consideration, however, is whether the aforesaid propositions, particularly the second one have any application in the present case.
8. The term 'jurisdiction' has got several shades of meaning. The term is often used loosely, if I may say so, to describe an order passed in wrong or erroneous exercise of jurisdiction, as distinct from inherent lack of jurisdiction. Section 115 of the Code of Civil Procedure itself contains an indication in this regard. It contemplates (a) exercise of jurisdiction not vested by law (b) failure to exercise a jurisdiction so vested and (c) acting illegally or with material irregularity in exercise of the jurisdiction. Cases falling in any of the three categories are called 'jurisdictional error'. But certainly if the Court has acted illegally or committed any material irregularity, in exercise of jurisdiction, the order cannot be said to be a nullity in the sense that the Court had no jurisdiction to pass the order. They are simply illegal orders. If the Court has inherent competence to try a case, the orders passed by it either in excess of the jurisdiction or implied with illegality or material irregularity cannot be described as orders without jurisdiction in the sense of being a nullity. In Hiralal Patni v. Sri Kali Nath the Apex Court observed:
The competence of a Court to try a case goes to the very root of the jurisdiction and where it is lacking, it is a case of inherent lack of jurisdiction.
Elaborating the point further in the context of the competence of the executing Court to question the validity of decree of the trial Court, the apex Court observed, The validity of a decres can be challenged in an execution proceeding only on the ground, that the Court which passed the decree was lacking inherent jurisdiction in the sense that it could not have seisin of the case because subject matter was wholly foreign to its jurisdiction....
In Ittyavira Mathai .v. Varkey Varkey the Apex Court observed, It is well settled that a Court having jurisdiction over the subject matter of the suit and the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, Courts have jurisdiction to decide right or to decide wrong, the decrees rendered by them cannot be treated as nullities.
9. In the present case the Subordinate Judge who passed the order dismissing the suit in default on 30.3.90, cannot be said to be lacking in jurisdiction. The order could at best be said to be wrong or illegal order. It could even be said that the order was without jurisdiction, but not in the sense of being a nullity.
10. There are several situations in which the order or decree of the Court can be said to be nullity in the eye of law. The jurisdiction of the Court might have been ousted by express words or necessary implications of the statute. The Court may be lacking in pecuniary or territorial jurisdiction. In the well known case of Kiran Singh v. Chaman Paswan , one of the cases relied upon by the Counsel for the petitioner, after observing that "a defect of jurisdiction, or whether in respect of the subject matter of the action, strikes at the very authority of the Court to pass a decree, and such a decree cannot be cured even by the consent of the parties", the Supreme Court held on facts that no prejudice had been caused to the aggrieved party and accordingly rejected the contention advanced on behalf of the appellants in that regard.
11. In Md. Nizamuddin v. State of Bihar 1990 (2) PLJR 505, another decision relied upon by the Counsel, a Full Bench of this Court observed that "a decision which involves pure question of law or a decision which is obiter dicta or rendered per incuriam or sub-silentio or with the consent of the parties or with a reservation that the same should not be treated as precedent, has no binding effect." I am afraid, the present case does not come in any of these categories.
12. Counsel placed reliance on Official Trustee v. Sachindra Nath Chatterjee . In that case the settler of a trust had filed case in the Calcutta High Court seeking Court's permission to revoke the clause in the trust deed empowering him to alter the quantum of interest given to each of the beneficiaries by Will alone and, in its place, to confer upon him the power to make such alteration by deed inter vivos. The Calcutta High Court order the revocation of the clause and granted him the authority. The Supreme Court on appeal by the Official Trustee held that the order was outside the jurisdiction of the Court. "It was not merely a wrong order or an illegal order, it was an order which the Court had no competence to make. It is not merely an order that the Court should not have passed but it is an order that the Court could not have passed and, therefore, a void order." The facts of that case, it would appear, were quite different and the decision has no relevance in the present case.
13. In Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B. Jeejeebhoy , another case relied upon by the Counsel for the petitioner, the Supreme Court held that a decision rendered on erroneous interpretation of statute cannot be deemed to have finally determined the question of jurisdiction and therefore the previous decision cannot operate as res judicata, whether the cause of action in the subsequent litigation is same or otherwise. The principle of law has no application in the present case.
14. Counsel also placed reliance on Pandurang v. State of Maharashtra . That was a case where under the rules of the High Court the appeal against the order of acquittal was to be heard by a Division Bench. A Single Judge of the High Court, however, set aside the acquittal. The Supreme Court observed that "even if the decision is right on merits, it is by a forum which is lacking in jurisdiction with regard to the subject-matter. Even a right decision by a wrong forum is no decision. It is non-existent in the eye of law and hence a nullity."
In the case of Chief Justice of Andhra Pradesh v. L.N.A. Dixitulu , the Supreme Court observed, in an entirely different context, that the decision of the Tribunal suffering from inherent lack of jurisdiction cannot be sustained by the doctrine of res judicata or estopped.
These two decisions, according to me, far from supporting the petitioner's contention rather support the view which I have taken hereinabove. Only such orders passed by a Court inherently lacking in jurisdiction can be said to be nullity and to which the doctrine of res judicata or estoppel is not applicable.
15. In view of the aforesaid decisions it would appear that the order dated 30.3.90 is an order which can at best be described as a bad order or illegal order or a wrong order, which the Court ought not to have passed, but it cannot be said to be an order which the Court could not have passed in the sense that it had no inherent jurisdiction to pass.
16. An important feature of the case is that the petitioner had challenged the order dated 20.4.91 restoring the suit to its original file, by way of civil revision in this Court. In the revision petition it has been stated that civil revision (CR No. 487 of 1992) was dismissed "on merit in absence of arguing Counsel". An argument to that effect was also made by the Counsel in course of hearing. From perusal of the record of CR No. 487 of 1992, however, it appears that on 21.9.95 the revision was dismissed after hearing the Counsel for the parties. As a matter of fact, the recall/review petition was also rejected later on 13.10.95 on the same very ground, that is, the civil revision had been dismissed after hearing the parties. The relevant part of the order dated 24.9.95 dismissing the civil revision runs as follows:
In the order impugned I do not find any illegality or infirmity nor the impugned order cannot be said to be without jurisdiction. The learned Court below has exercised its power vested in under Order IX, Rule 4 of the Code of Civil Procedure. In that view of the matter, I find no merit in this application which is accordingly dismissed.
The petitioner challenged the above order of this Court in the Supreme Court but without success.
17. It may be stated here that in the earlier civil revision no such plea was taken that the order dated 30.3.90 should be deemed to be one under Order VII, Rule 11 of the Code and therefore the impugned order restoring the suit purportedly in exercise of power under Order IX, Rule 4 of the Code was without jurisdiction. The petitioner appears to have taken the plea only after the issues were framed and the suit was fixed for hearing. No doubt the question of jurisdiction can be raised at any stage. However, as stated above, it is not a case of inherent lack of jurisdiction. Had it been so, not only the order of the Court below restoring the suit but also orders passed by this Court as well as Supreme Court arising therefrom, could have been held to be nullity. However, in view of my finding that it is not a case of inherent lack of jurisdiction but a case of wrong or illegal order being passed by the Court, which order merged in the order of this Court and the Supreme Court, it is not possible to accept the contention raised on behalf of the petitioner that the suit would be deemed to have been instituted only on 9.7.91 and, therefore, with respect to the cause of action for which the suit was filed, it would be barred by limitation. By reason of the order of restoration dated 20.4.91 the suit would be deemed to be pending since the date of its institution i.e. 16.10.86 itself. Neither the cause of action would be deemed to have come to an end with the passing of the order dated 30.3.90, nor a fresh suit would be deemed to have been instituted with the admission of the plaint on 9.7.91.
18. The issues are accordingly answered in favour of the plaintiffs.
19. The contention raised on behalf of the petitioner having been found to be without substance, this civil revision must fail and the same is accordingly dismissed.