SUNDER DASS Vs. RAM PRAKASH

JUDGEMENT

(1.) This appeal by certificate raises a short but interesting question of law relating to the interpretation and effect of the proviso to Section 3 of the Delhi Rent Control Act, 1958. The dispute in this appeal relates to a shop situate on the ground floor of a building bearing Municipal No. 624-36 (Old) 530-35 (New) situate in Sadar Bazar, Delhi. The building was an evacuee property and it was acquired by the Central Government under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act. 1954 and formed part of the compensation pool. It was sold by public auction and the appellant being the highest bidder was accepted as the auction purchaser by the managing officer on 5th September, 1955. It does not appear from the record as to when the appellant paid the full purchase price to the managing officer but presumably he did so before 23rd September, 1955 when the sale was confirmed in his favour by the managing officer. The sale certificate was not issued in favour of the appellant for a considerable time and we are told that even until now it has not been issued out possession of the building was handed over to the appellant on 30th August, 1956 and a letter dated 3rd September, 1956 was addressed by the managing officer to the respondent intimating to him that since possession of the building had been handed over to the appellant, the respondent should pay rent to the appellant and otherwise deal directly with him effect from 30th August, 1956. This letter was addressed to the respondent, because at that time the respondent was in possession of one other shop in the same building as a tenant and pursuant to this letter, he attorned tenancy in respect of the shop to the appellant. On 1st September, 1956, the appellant let out the shop in dispute (hereinafter referred to as the premises) to the respondent and the latter continued in possession of the premises as a monthly tenant. However, on 10th August, 1959 the appellant gave a notice to quit terminating the tenancy of the respondent and calling upon him to hand over vacant possession of the premises by the mid-night of 31st August, 1959. The respondent declined to comply with the requisition contained in the notice and hence the appellant filed a suit in the Court of the Senior Subordinate Judge, Delhi on 15th September, 1959 for recovery of possession of the premises from the respondent. There was also a claim made in suit for recovery of arrears of rent but this claim is no longer material and we need not dwell on it. The respondent resisted the claim for eviction inter alia on the ground that the certificate of sale not having been issued in favour of the appellant he was not the owner of the premises and hence he was not legally competent to let out the premises to the respondent nor was he entitled to recover possession of the premises from the respondent. The respondent also disputed the jurisdiction of the court on the ground that the Delhi Rent Control Act, 1958 which had come into force on 9th February 1959 was applicable to the tenancy of the premises and by reason of Section 50 of that Act, the civil court had no jurisdiction to entertain the suit. The trial Court took the view, on a reading of the decision of this Court in M/s. Bombay Salt and Chemical Industries v. L. J. Johnson, AIR 1958 SC 289 that since the certificate of sale was not issued in favour of the appellant, he had not become the owner of the premises and the premises continued to belong to the Government and by reason of Section 3 which provided that "Nothing in this Act shall apply to any premises belonging to the Government", the Delhi Rent Control Act, 1958 was not applicable to the tenancy in respect of the premises and the civil court had jurisdiction to entertain the suit. The trial Court also held that since the full purchase price had been paid by the appellant and possession of the premises had been handed over by the managing officer to the appellant on 30th August, 1956, the appellant was legally competent to let out the premises to the respondent and the premises having been lawfully let out by the appellant to the respondent there was relationship of landlord and tenant between the parties and since the tenancy was validly terminated by the appellant by giving notice to quit in accordance with the provisions of Section 106 of the Transfer of Property Act, the appellant was entitled to recover possession of the premises from the respondent. A decree for eviction was accordingly passed by the trial Court in favour of the appellant. The respondent preferred an appeal but the appeal was dismissed by the Additional District Judge, Delhi on substantially the same view as that taken by the trial Court. This was followed by a second appeal to the High Court but that appeal also met with the same fate and the decree for eviction became final between the parties.

(2.) Now before the decree for eviction could be executed, an amendment was made in Section 3 of the Delhi Rent Control Act, 1958 which is very material. We shall immediately refer to this amendment, but before we do so, it would, be convenient to advert to a few relevant provisions of the Delhi Rent Control Act, 1958. This Act came into fore with effect from 9th February, 1959 and it was intended to provide inter alia for control of rents and evictions. Section 14, sub-section (1) granted protection to the tenant against eviction by providing that notwithstanding anything contained in any other law or contract, no order or decree for recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant, but the proviso to this sub-section laid down certain grounds on which the Controller could, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises. Since the jurisdiction to make an order for recovery of possession of premises on one or more of the specified grounds was given to the Controller under Section 14, sub-section (1), Sec. 50 ousted the jurisdiction of the civil court by declaring that, save as otherwise expressly provided in the Act, no civil court shall entertain any suit or proceeding in so far as it relates inter alia to eviction of any tenant from any premises to which the Act applies or to any other matter which the Controller is empowered by or under the Act to decide. If, therefore, the premises in the present case were premises to which the Act applied, the civil court would have no jurisdiction to entertain the suit filed by the appellant for recovery of possession of the premises from the respondent. But Section 3, as it stood prior to its amendment, by Act 4 of 1963, provided that nothing in the Act shall apply to any premises belonging to the Government. The view taken by the trial Court and affirmed by the Additional District Judge and the High Court was not issued in favour of the appellant, the premises continued to belong to the Government and on this view, the Act clearly did not apply to the premises and neither Section 14, sub-section (1) nor Section 50 being applicable, the civil Court continued to have jurisdiction to entertain the suit. This was the reason why the decree for eviction was passed by the trial Court against the respondent and it was affirmed by the Additional District Judge and the High Court. But by the time the decree for eviction came to be executed, the following proviso was added in Section 3 by Act 4 of 1963 with retrospective effect:

(3.) Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all. Vide Kiran Singh v. Chaman Paswan, (1955) 1 SCR 117 and Hiralal Patni v. Kali Nath, (1962) 2 SCR 747 . It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the civil court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing court could declare it to be such and decline to execute it against the respondent.