TMI Blog2005 (9) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... er. The contention of the Appellant that the Civil Court has no jurisdiction was repelled by the High Court, as noticed hereinbefore without going into the aforementioned aspect of the matter. We have noticed hereinbefore that the Respondents in the counterclaim did not advance a plea for forfeiture of tenancy nor did they raise any contention that the landlord has issued a notice conveying his intention to determine the lease It is now well-settled that a decree passed by a court having no jurisdiction is a nullity. The Civil Court had no jurisdiction to pass a decree for eviction only on the basis that the tenant has denied their title. The matter might have been different if the civil court has otherwise jurisdiction to entertain a suit. The legislature has created new rights and liabilities for both the landlord and tenant in terms of the provisions of the said Act and provided a forum therefore. The jurisdiction of the civil court having been barred except in a situation where the proviso appended to Sub-section (1) of Section 10 would be attracted, the Civil Court has no jurisdiction to entertain a suit for eviction on a ground envisaged u/s 10(2)(vi) of the A.P. Building (Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deed of sale dated 10.3.1988 executed by defendant Nos. 2 to 5 in favour of Respondent Nos. 6 and 7 herein is null and void. 3. However, subsequently on or about 6.11.1995 a second written statement was filed wherein a counter-claim was made which is as under: i) This defendant submits that the plaintiffs who are the tenants of the defendants since, denied the tenancy and the relationship of Land Lord and Tenant and falsely set up the plea of oral agreement of sale have forfeited the right to continue in possession, as tenants in the suit premises and the plaintiffs are liable to be vacated from the suit premises as persons not having right any more to be in possession of the suit property. Hence, the Counter claim for delivery of possession of the suit property. The defendants are also entitled for mean (sic) profits from the plaintiffs at the rate of ₹ 1500% from 10th November, 1992, i.e., for the past three years and also in future. ii) The cause of action for Counter claim arouse on the day plaintiff No. 1 filed suit and the plaintiff denied the defendant's title by setting up false agreement of sale. The Counter claim is therefore within lime. iii) These defendants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim did not frame any specific issues. The issues framed by the learned Trial Judge are as under: 1) Whether there is an agreement of sale in between the parties? 2) Whether any payments were made under the alleged agreement? 3) Whether the suit is barred by limitation? 4) To what relief? 6. Despite the fact that no issue was framed, the learned Trial Judge proceeded to consider the issue as regard the counter-claim of the defendant under Issue No. 4. Rejecting the contention made by the counsel for the plaintiff that the court has no jurisdiction to entertain the counter-claim, the learned Trial Judge stated that as the Appellant had denied the title of the landlord, the civil court has jurisdiction to entertain the counter-claim of the defendants in terms of Order VII Rule 7 of the Code of Civil Procedure. Without considering any evidence which might have been brought on records by the parties on the said counter-claim of the Respondents herein, the learned Trial Judge allowed the same only on the premise that the Appellants have failed to establish its case of oral agreement of sale. 7. The High Court by reason of the impugned judgment and relying upon a decision of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defences are permissible, Mr. Gupta would argue that such defences should not be mutually destructive and in support thereof strong reliance has been placed on Abdul Rahim v. Md. Md. Azimuddin AIR1965Pat156 and C. Mohammed v. Ananthachari AIR1988Ker298. Relying on or on the basis of the decisions of this Court in Nagubai Ammal and Ors. v. B. Shama Rao and Ors. [1956]1SCR451 and R.N. Gosain v. Yashpal Dhir AIR1993SC352 , the learned counsel would contend that the plaintiff cannot approbate and reprobate at the same time. 10. Mr. L. Nageshwara Rao, learned senior counsel appearing on behalf of the Respondent Nos. 2 to 5, would supplement the argument of Mr. Gupta. Drawing our attention to the counter-affidavit filed herein in this appeal he would contend that Shri P. Someswar Rao, father of original defendant filed an eviction petition in the court of Rent Controller against the Appellant herein on the ground of wilful default in payment of arrears of rent wherein the Appellant herein in his written-statement raised a plea of the agreement for sale claiming a title in himself. 11. A.P. Buildings (lease, Rent Eviction) Control Act, 1960 (the said Act) was enacted to consolidate and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of sale. The Respondent Nos. 1 to 4 herein however, in their written statement contended: In reply to para 4 of the plaint these defendants submits that it is incorrect to say that the plaintiff No. 1 paid ₹ 10000/- on the date of alleged oral agreement. It is also incorrect to say that the symbolic possession was delivered on the date of the alleged oral agreement. The plaintiff No. 1 was in possession of Plaint schedule property as a tenant and his possession is that of tenant even to this day. 13. The pleadings as is well-known must be construed reasonably. The contention of the patties in their pleadings must be culled out from reading the same as a whole. Different considerations on construction of pleadings may arise between pleadings in the mofussil court and pleadings in the original side of the High Court. 14. So read, the plaintiffs in its plaint merely ascribed that he continued to be in possession of the tenanted premises after the oral agreement of sale was entered into by and between the parties pursuant to or in furtherance thereof. It has not been and could not have been the contention of the Appellant that he has derived title as a vendee in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la and Ors. v. Firm Prahlad Rai Prem Prakash [2002]2SCR177 whereupon Mr. Nageshwara Rao placed strong reliance, Lahoti, J., as the learned Chief Justice then was, while construing the provisions of Clause (c) of Sub-section (1) of Section 12 of the M.P. Accommodation Control Act 1961 observed: 13. The law as to tenancy being determined by forfeiture by denial of the lessor's title or disclaimer of the tenancy has been adopted in India from the law of England where it originated as a principle in consonance with justice, equity and good conscience. On enactment of the Transfer of Property Act 1882, the same was incorporated into Clause (g) of Section 111. So just is the rule that it has been held applicable even in the areas where the Transfer of Property Act does not apply. (See: Raja Mohammad Amir Ahmad Khan v. Municipal Board of Sitapur.) The principle of determination of tenancy by forfeiture consequent upon denial of the lessor's title may not be applicable where rent control legislation intervenes and such legislation while extending protection to tenants from eviction does not recognize such denial or disclaimer as a ground for termination of tenancy and eviction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in possession of the land as a tenant and his possession is that of tenant even to this day and, thus, according to the defendant the Appellant continued to be a tenant. As in the counter-claim such a plea had been taken, the Respondents on their own showing raised inconsistent pleas which are said mutually destructive. 20. The Civil Court's jurisdiction to entertain a suit for eviction on the ground of denial of relationship of landlord and tenant could have been invoiced only strictly in terms of the provisions of the said Act wherefore the requirement of law, as contained in the proviso appended to Section 10(1) of the Act was to be complied with 21. Moreover, in the counter-claim although the Respondents have claimed mesne profits at the rate of ₹ 1500 per month from 10.11.1992 till 9.11.1995, i.e., for a period of only 3 years only and also in future, the Trial Judge did not discuss the evidence which might have been adduced by the parties in that behalf. The Division Bench of the High Court, as noticed hereinbefore, on the other hand, examined the question on the premise that the Appellants were in arrears of rent for the period from January, 1977 to June, 1996 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea by the Appellants herein. 25. In R.N Gosain (supra), different types of undertakings were given by the tenant that he would vacate the premise which having been acted upon, it was held that having done so, the petitioner cannot be permitted to invoke the jurisdiction of this Court under Article 136 of the Constitution of India. The said decision has no application to the fact of the present case. 26. In Arjunlal Bhatt Mall Gothani (supra), admittedly there was an agreement to sell the suit property to the tenant wherein it was provided that the payment would be made in equal installments and on failure of do so, the sale agreement would be cancelled. In the aforementioned situation, this Court held that when the agreement was entered into, the old relationship of landlord and tenant came to an end and the rights and liabilities of the parties were required to be worked out on the basis of that agreement. 27. Here, in this case the existence of the agreement itself was in question As noticed hereinbefore, the specific case of the Respondents themselves was that the Appellants continued to be a tenant and in that view of the matter, the said decision has no application. 28. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was stated: ...It is a fundamental principle well-established 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. 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 detect cannot be cured even by consent of parties.... 33. In Bihar State Mineral Development Corporation and Anr. v. Encon Builders (I)(P) Ltd.this Court held: 31...An order which lacks inherent jurisdiction would be a nullity and, thus, the procedural law of waiver or estoppel would have no application in such a situation. 34. In Dwarka Prasad Agarwal v. B.D. Agarwal AIR2003SC2686 , it was opined : 37. It is now well settled that an order passed by a court without jurisdiction is a nullity. Any order passed or action taken pursuant thereto or in furtherance thereof would also be nullities. In the instant case, as the High Court did not have any jurisdiction to record the comprom ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
