KRISHNAN Vs. APPU MENON

JUDGEMENT

(1.) The tenant of a building, who has been ordered to vacate by the Rent Controller, Appellate Authority and the Revisional Court has come up with this revision petition under S.115 CPC. The landlord after retiring from service wanted to settle down at Calicut and for that purpose wanted the tenant to vacate from the building On his refusal the landlord applied for eviction. An application was filed before the Munsiff, Kozhikode I, who was invested with the powers of a Rent Control Court under the Kerala Buildings (Lease and Rent Control) Act. The tenant disputed the claim of bona fide need set up by the applicant and also disputed the title of the applicant to apply for eviction. The Rent Control Court found that the tenant's dispute of the applicant's title for eviction is not bona fide. It also found that the need of the applicant is bona fide. Consequently an order for eviction was passed. On appeal to the Appellate Authority, besides repeating his contentions that he took before the Rent Controller an additional ground was taken to the effect that the Munsiff, Kozhikode I, had no jurisdiction to entertain and decide the application because the area where the building is situate falls within the jurisdiction of Munsiff, Kozhikode II, and the latter has been invested with the powers of a Rent Control Court to dispose of applications under the Act in respect of buildings in that area. The Appellate Authority permitted him to raise that additional ground, but found that he is not entitled to question the jurisdiction of the Rent Control Court (Munsiff, Kozhikode I) on the principle of S.21 CPC. On the merits also the dispute regarding the title was found to be not bona fide and the need of the applicant was found to be genuine. The petitioner did not keep quiet. He moved the District Court challenging the orders passed by the Subordinate Tribunals. The District Court also found that there is no bona fides in the petitioner disputing the title or the applicant to apply under the Act. The applicant was found to be the karnavan of the puthravakasam tarwad entitled to resume the management of the tarwad on his retirement from service and returning to Calicut. Further the petitioner entered into the rental arrangement with the applicant's sister during his absence and his sister has only acted on his behalf. Consequently there is no scope for any dispute regarding the title of the applicant. The applicant was found to be in genuine need of the building for his residence. On the plea of nullity of the order passed by the Munsiff Kozhikode I, also the District Judge concurred with the Appellate Authority's view that the petitioner is not entitled to raise this question on the principle of S 21 CPC. It is after all these that the petitioner has come up in revision before this Court.

(2.) All the Subordinate Tribunals are right in coming to the conclusion that there is no bona fides in the petitioner disputing the title of the applicant respondent. The respondent was employed in Bangalore as Secretary, Coffee Board. He was the eldest male member of his puthravakasam tavazhi and during his absence from Calicut the management of the properties was being attended to by his sister and in, the course of such management she had let out the building to the petitioner. The contention of the petitioner that on her death her heirs alone are entitled to claim eviction is unsustainable in view of the character of the property and the nature of the management that the respondent's sister had over the property. On the petitioner coming back after retirement he is entitled to resume the management and it is in that capacity he asked for eviction of the petitioner. It is not disputed that the respondent has no building of his own in Calicut for his residence. That being so his claim for getting back the building from the petitioner is bona fide. There is no error of jurisdiction in the conclusions arrived at by the Subordinate Tribunals for interference under S.115 CPC.

(3.) The main point pressed for consideration by the petitioner's counsel is that the order passed by the Munsiff, Kozhikode I, acting as the Rent Control Court is a nullity because that learned Munsiff has no jurisdiction under the Kerala Buildings (Lease and Rent Control) Act to entertain and decide an application in respect of the disputed building which is situate within the jurisdiction of the Munsiff, Kozhikode II who has also been invested with the powers of Rent Control Court over the area where the building is situate. It is not disputed that the building in question is situate within the jurisdiction of Munsiff, Kozhikode II and that the latter has been invested with the powers of a Rent Control Court. It is also not disputed that this fact escaped the attention of both the applicant and the tenant until the order for eviction was passed. No attempt has been made to point out that any prejudice has been caused to the petitioner prejudice in the sense that he could not have a fair trial. The fact that the decision has gone against the petitioner cannot be characterised as a prejudice consequent on or attributable to the exercise of jurisdiction by Munsiff, Kozhikode T. As seen from the progress diary of the case that court gave ample opportunity to both the parties to let in all their evidence before the case was heard and orders passed. In these circumstances the plea raised for the first time in the Appellate Court is purely a technical plea which cannot be countenanced. The principle that is followed in such a situation is the principle that is inherent in S.21 CPC., though that section in terms does not apply to Rent Control cases. The conduct of the party in taking part in the proceedings before the Trial Court without raising any objection regarding jurisdiction knowingly or unknowingly and taking a chance of verdict in his favour will be deemed to be a waiver of the objection of want of territorial jurisdiction, and he will not be subsequently permitted to raise it. Long and continued participation of the parties in the proceedings without any protest amounts to a waiver of jurisdiction. This principle which is given statutory recognition under S.21 CPC. so far as suits are concerned has been applied in cases where the Section in terms does not apply. For instance in Hira Lal v. Kali Nath ( AIR 1962 SC 199 ) this principle was applied to reject a contention similar to the one raised in this case. In that case a suit was filed on the original side of the Bombay High Court for recovery of certain amount in respect of the commission due to the plaintiff. That suit was eventually referred to arbitration and on the basis of the award of the Arbitrator a decree was passed. The decree was transferred to the District Judge, Agra for execution. When the decree holder applied for execution a contention was raised that the decree passed by the Bombay High Court is a nullity as that court had no territorial jurisdiction to entertain the suit, the transaction sued on having taken place within the jurisdiction of the Agra Court. The District Judge and the High Court dismissed this objection and it was against that the matter went up to the Supreme Court. The Supreme Court held that there is a difference between a defect of want of inherent jurisdiction and territorial jurisdiction and it is only in the former case a decree passed by a court having no inherent jurisdiction will be a nullity which can be set up in execution. Their Lordships were of the view that the objection as to territorial jurisdiction does not go into the competence of the court and can therefore be waived. After holding so, the principle that should govern such a case is stated thus at page 201:-