S R SURENDIRARAJ Vs. KOMALAVALLI

JUDGEMENT

(1.) THE above Civil Revision Petition is directed against the fair and decretal order dated 12.9.2003 made in M.P.No.125 of 1999 in E.P. No.160 of 1998 in R.C.O.P. No. 2244 of 1992 by the Rent Controller and the XV Judge, Court of Small Causes, Chennai. 2. Tracing the history of the above Civil Revision Petition coming to be filed on the part of the petitioner herein, who is the judgment debtor and the tenant, it comes to be known that the respondents are the legal heirs of one Gnanaprakasam, who was the landlord and he filed the R.C.O.P. No. 160 of 1998 before the Court below as against the petitioner herein for eviction under Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act on ground of additional accommodation and the said R.C.O.P. having been decreed as prayed for; an Execution Petition in E.P. No.160 of 1998 has also been filed by the landlord; that during pendency of the said Execution Proceedings, the landlord died and his legal Representatives, the respondents herein, have been brought on record; that the petitioner herein has filed a petition in M.P.No.125 of 1999 before the Court below under Section 47 of the Code of Civil Procedure seeking to dismiss the Execution Petition on ground that the same has become inexecutable in view of the subsequent development and for lack of jurisdiction and that the requirement under Section 10(3)(c) has not been complied with. 3. THE Court below, in consideration of all the facts and circumstances of the case and having afforded with due opportunity for both parties to be heard and having framed proper point for consideration, would ultimately dismiss the said petition for reasons assigned, testifying the validity of which the petitioner has come forward to file the above Civil Revision Petition on grounds such as that the decree for eviction had become inexecutable since on the death of the original landlord Gnanaprakasam, a compromise was entered into and a new tenancy was created; that Section 10(3)(c) is not applicable to the admitted case of the respondents since the business premises is situated for away from the petition premises and no business is being carried on in the business premises thus not serving the requirement under Section 10(3)(c) of the Act. 4. During arguments, the learned counsel appearing on behalf of the revision petitioner, besides reiterating the grounds of revision, particularly those grounds which have been extracted supra, would also cite the following judgments respectively reported in: 1. (1990) 1 SCC 193 (SUSHIL KUMAR MEHTA Vs. GOBIND RAM BOHRA (DEAD) THROUGH HIS Lrs.) 2. 2001-3L.W.236 (M.ANNAMALAI 7 OTHERS Vs. NATTUKOTTAI NAGARATIAR OYAMADAN, THIRUVANNAMALAI by ITS TRUSTEE, ANNAMALAI CHETTIAR REPRESENTED BY power OF ATTORNEY AGENT K.T. ALAGAPPA CHETTIAR) 5. So far as the first judgment cited above is concerned, it has been held: " A decree passed by a court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A decree passed by such a Court is a nullity and is non est. Its invalidity can be setup whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. THE defect of jurisdiction strikes at the authority of the court to pass a decree which cannot be cured by consent or waiver of the party.... A question relating to jurisdiction of a Court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a Court....." 6. In the second judgment cited above, a learned single Judge of this Court, while dealing with the facts of the case in hand wherein the mandatory provision of Section 11 of the Tamil Nadu City Tenant's Protection Act has not been followed, has held: " If we apply the ratio of the decision in (1997-1-SCC 167), it would immediately follow that the earlier suit instituted by the respondent/landlord was absolutely without jurisdiction. THE suit itself was not maintainable. THE mandatory requirements not having been complied with, it goes to the root of the matter and the entire proceedings were vitiated and a nullity. That the objection that a decree is a nullity can be raised at any stage is now well settled." Citing the above judgments, the learned counsel for the petitioner would pray to allow the above civil revision petition. 7. On the contrary, on the part of the respondents, the learned counsel would also cite two judgments respectively reported in: 1. (1994) II M.L.J. 44 (SC) (P.V. PAPPANNA AND OTHERS vs. K.PADMANABHAH) 2. 1999-2-L.W. 417 (PADMAVATHY vs. P. RADHAKRISHNAN AND ANOTHER) 8. In the first judgment cited above, the Honourable Apex Court has held: ".... once the matter has become final in the sense that the order of eviction has been upheld by the Highest Court in which it was sought to be challenged, it would not be open to further challenge which necessarily can be in the execution stage. This conclusion inevitably follows from the well-settled principle that a court executing the decree cannot go behind the decree for it is binding and conclusive between the parties to the suit. .... To put it differently, the executing court cannot enquire as to why the decree was passed but for the purpose of finding out whether the decree is a valid one or a nullity it can go into the question as to whether the court which passed the decree was competent to do so...." 9. In the second judgment cited above, a learned single Judge of this Court has held: " This is not a case where the tenant was not given an opportunity, to defend himself. He came upto this Court, and this Court found that he is a wilful defaulter. Now, the contention that certain facts were not brought to the notice of this Court or before the Rent Controller cannot be raised in execution, and if any application under Section 47 CPC is entertained, it will amount to disobedience of orders of this Court. THE contentions are barred by res judicata and the executing court cannot go behind the order passed by this court...." On such arguments, the learned counsel for the respondents would seek to dismiss the above civil revision petition. 10. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, it comes to be known that the landlord has filed the petition before the Rent Controller as against the revision petitioner for eviction on ground of additional accommodation and the Rent controller, on the facts and circumstances alleged with due opportunity for both parties to exhaust their remedies and in appreciation of the evidence placed on record, has ultimately ordered the eviction of the tenant and since no appeal has been preferred as against the order of eviction, no mention need be made that the said fair and decretal order has become final and binding. This was way back on 24.8.1994 and the Execution Petition was filed in the year 1998. At that stage, the petitioner/tenant has come forward to file the petition under Section 47 of the Code of Civil Procedure on ground that the decree is a nullity being inexecutable and because of the subsequent events that took place after the decree etc., which cannot be focussed in a court of law legally since any decree passed in consideration of the facts and circumstances and in adherence to the law with due opportunity for both parties to be heard cannot be gone back. 11. So far as the judgments cited on the part of the revision petitioner are concerned, in the first judgment cited on the part of the petitioner, the Honourable Apex Court has held that ' a decree passed by a court without jurisdiction over the subject matter since goes to the root of its exercise or jurisdiction, is a coram non judice, a nullity and is non est in law'. Admitting this preposition as held by the Honourable Apex court, it is the duty of this Court to assess 'whether, in the given facts and circumstances, such jurisdiction question has arisen and if at all some attempt has been made on the part of the petitioner, if it is true that without jurisdiction, the lower court has decided the matter' and only when such a situation has arisen that the Rent Controller, who tried the RCOP, has decided the same either without jurisdiction or in excess of jurisdiction or by wrong exercise of jurisdiction, the proposition propounded by the Honourable Apex Court would become applicable to the case in hand. But, a close study had on the exercise of jurisdiction by the Rent Controller in passing the fair and decretal order requiring the petitioner to evict the premises, this Court is not able to find that such a situation has arisen in the decision made by the Rent Controller so as to hold that the RCOP in hand has been decided by the Rent Controller without jurisdiction or in wrong exercise of jurisdiction and therefore the judgment cited by the learned counsel for the revision petitioner does not become applicable to the facts of the case in hand. 12. On the contrary, the judgments cited on the part of the learned counsel for the respondents to the effect that 'once a matter has become final, it would not be open to further challenge and that the execution Court cannot go beyond the decree' would become directly applicable to the facts of the case in hand. 13. Even a careful perusal of the order passed by the Court below would reveal that the said Court has not only traced the pleadings of parties in the petition and the counter and framing its own point for consideration i.e. 'whether the petition is entitled to be allowed' and having discussed the pros and cons of the matter, would find no valid reason existing on the part of the petitioner to file an application of this sort and would ultimately dismiss the same. This Court does not find any valid or tangible reason existing to cause its interference into the order passed by the Court below in a well considered and merited manner and therefore is of the view that the interference sought to be made into the same by the petitioner is neither necessary nor called for in the circumstances of the case and the revision becomes liable only to be dismissed with exemplary costs. In results, (i) the above civil Revision Petition fails and the same is dismissed with an exemplary cost of Rs.2,000/- (Rupees two thousand only) to be paid by the revision petitioner to the respondents within fifteen days from the date that this order copy is made ready. (ii) the fair and decretal order dated 12.9.2003 made in M.P.No. 125 of 1999 in E.P.No.160 of 1998 in R.C.O.P.No.2244 of 1992 by the XV Judge, Court of Small Causes, Chennai is hereby confirmed. Consequently, C.M.P.No.15862 of 2003 is also dismissed.