SUSHIL KUMAR MEHTA Vs. GOBIND RAM BOHRA DEAD

JUDGEMENT

(1.) Special leave granted.

(2.) This appeal under Article 136 arises against the order dated 16/09/1988 of the High court of Punjab and Haryana refusing to review the order dated August 11, 1988 made in Civil Revision No. 2439 of 1980 on its file. The facts leading to the decision are that the respondent Gobind Ram. the father of the respondents/landlord laid the Suit No. 118/77 (initially numbered as O. S. No. 276 of 1975) on the file of Senior Sub-Judge for ejectment and recovery of arrears of rent and damages for use and occupation of the shop in Gurgaon, let out to the appellant/tenant. The suit was originally laid in the court of Sub-Judge,3rd Class, Gurgaon, which was transferred later to the Senior Sub Judge, Gurgaon, which was decreed ex party on 20/10/1977. The application under Order IX Rule 13 Civil Procedure Code to set aside the ex party decree was dismissed on 10/01/1979 and was confirmed on appeal on 17/08/1979 and in revision by the High court on 15/10/1979. When the landlord laid the execution application for ejectment the appellant objected under S. 47 of Civil Procedure Code contending that the decree of the civil court is a nullity as the premises in question is governed by the Haryana Urban (Control of Rent and Eviction) Act, 11 of 1973, for short 'the Act'. The Controller under the Act is the competent forum regarding claims for ejectment on fulfilment of any of the conditions enumerated under S. 13 thereof. The civil court is divested of jurisdiction to take cognisance and pass a decree for ejectment of the appellant. That objection was overruled and on further revision the High court dismissed the revision by order dated 19/03/1980. Simultaneously he also filed writ petition under Article 227 which was dismissed on 30/09/1988. This appeal is directed against that order of dismissal.

(3.) The contention raised by Shri S. P. Goyal, the learned senior counsel for the appellant is that byoperation of S. 13 of the Act the only authority to pass a decree of ejectment of the appellant tenant is the Controller under the Act and by necessary implication the jurisdiction of the civil court is ousted. The civil court lacked inherent jurisdiction to take cognizance of the cause and to pass a decree. The decree is thus a nullity. The challenge to a decree on the ground of nullity can be raised at any stage and even in execution. The courts below have committed manifest error of law in not considering the legal question in its proper perspective. The shop consists of the original building belonging to the landlord, but a small part thereof in the front side was constructed on municipal land. Tenancy of the building is governed by the special Act and, therefore, the decree of the civil court is a nullity and is in executable. Shri Ashri, the learned counsel for the respondents refuted this contention. Firstly he argued that the leave application is barred by limitation. Secondly, he contended that the appellant had raised the plea of want of Jurisdiction at the trial. Though he remained ex party, the trial court considered the objection under issue Nos. 4 and 5 and overruled the objection. The decree became final; thereby the decree operates as res judicata. He also further contends that the Act does not apply to the building in question. Under S. 3, municipal land is exempted from the provisions of the Act and thereby the only forum to lay the action is the civil court. The civil court having jurisdiction has validly granted the decree. The decree having been allowed to become Final, it is not open to the appellant to ask the executing court to go behind the decree.