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Prahlad Dora Vs. the State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 89 of 1966
Judge
Reported inAIR1969Ori21; 34(1968)CLT1175
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9, 11 and 47
AppellantPrahlad Dora
RespondentThe State of Orissa and ors.
Appellant AdvocateC.V. Murty, Adv.
Respondent AdvocateStanding Counsel for Respondent No. 1
DispositionAppeal dismissed
Cases Referred and Hira Lal v. Kali Nath
Excerpt:
.....the two sections, so far as relevant, run thus- section 9 (1) any dispute between the tenant and the landlord as regards (a) x x xx(b) failure of the tenant to deliver to the landlord the rent accrued due within two months from the date on which it becomes payable;.....of 1955) which came into force on 1-9-1947 and 1-7-1954 respectively and that there is no lack of inherent jurisdiction in the civil court in passing the decree. he also contends that the question of lack of inherent jurisdiction was specifically raised and negatived and the matter is barred by res judicata.4. i would first examine the question whether the contention of mr. murty that the civil court lacks inherent jurisdiction to pass the decree under execution is barred by res judicata. there cannot be any dispute over the proposition, that if the civil court lacks inherent jurisdiction, the decree would be a nullity and can be questioned at the stage of execution. in such a case, the executing court can go behind the decree. but the position is different where the question of lack of.....
Judgment:

G.K. Misra, J.

1. The Maharaja of Parala-khemudi filed O. S. No. 727 of 1945 before the Rent Suit Collector under Section 77 of the Madras Estate Land Act for recovery of rent for Faslis 1351, 1352 and 3353 corresponding to calendar years 1942, 1943 and 1944. The rent fell due on 1-7-42, 1-7-43 and 1-7-44. The suit was dismissed on 23-9-49 on the ground that the lands were not part of the estate and the plaintiff was not the land-holder under the Madras Estate Land Act and that the Revenue Courts had no jurisdiction to entertain the suit. Rent Appeal No. 18 of 1950 was dismissed on 3-2-56 by the Additional District Judge, Ganjam. He agreed with the reasons of the Rent Suit Collector.

The Maharaja accordingly took back the plaint and filed M. S. No. 14 of 1956 on 23-2-56 before the Subordinate Judge, Berhampur in conformity with the view of the Additional District Judge that the Civil Court had jurisdiction. The suit was decreed on 30th of November. 1959. Therein the question of jurisdiction was again raised by the tenants (appellant and respondents Nos. 2 to 6). The learned Subordinate Judge held that the Civil Court had jurisdiction. Against this decree no appeal was filed and the matter became final and conclusive as between the parties. It is to be noted that the Maharaja assigned all his rights in respect of the disputed land to the State of Orissa and on the basis of the assignment the State of Orissa was impleaded as plaintiff in place of the Maharaja on 19-9-59. No objection was taken to this substitution in the suit itself and the matter stood concluded.

The State levied E. P. 23 of 1962 for execution of the decree. The tenants filed objection under Section 47, C. P. C., again challenging the decree as being without jurisdiction and nullity. The Subordinate Judge, Berhampur upheld this objection in M. J. C. No. 56 of 1963 and dismissed the execution application. In appeal the learned District Judge held that the suit being for recovery of arrears of rent, prior to the coming into force of the O. T. P. and O. T. R Acts was cognizable in Civil Court. He accordingly allowed the appeal Against the appellate order, this miscellaneous appeal has been filed.

2. Mr. Murty contended that by virtue of Section 9(1)(b) proviso and Section 10(1) it is only the O. T. R. Collector who could take cognizance of the cases for recovery of rent and the Civil Court had no jurisdiction.

3. The two Sections, so far as relevant, run thus-

Section 9 (1) Any dispute between the tenant and the landlord as regards

(a) x x xx(b) failure of the tenant to deliver to the landlord the rent accrued due within two months from the date on which it becomes payable;

shall be decided by the Collector on the application of either of the parties:

Provided that such application shall be be filed before the Collector in the prescribed manner within 60 days from the date on which the dispute arises or from date of the passing of this Act, whichever is later.

Section 10(1) Subject to the provisions of Section 9, all disputes arising between a landlord and a tenant shall be cognizable by a Civil Court.

The learned Standing Counsel on the other hand contends that the recovery of rent relates to the period from 1942 to 1944 long prior to the coming into force of the Orissa Tenants Protection Act, 1948 (Orissa Act III of 1948) and the Orissa Tenants Relief Act, 1955 (Orissa Act V of 1955) which came into force on 1-9-1947 and 1-7-1954 respectively and that there is no lack of inherent jurisdiction in the Civil Court in passing the decree. He also contends that the question of lack of inherent jurisdiction was specifically raised and negatived and the matter is barred by res judicata.

4. I would first examine the question whether the contention of Mr. Murty that the Civil Court lacks inherent jurisdiction to pass the decree under execution is barred by res judicata. There cannot be any dispute over the proposition, that if the Civil Court lacks inherent jurisdiction, the decree would be a nullity and can be questioned at the stage of execution. In such a case, the Executing Court can go behind the decree. But the position is different where the question of lack of inherent jurisdiction was specifically raised and negatived. As would appear from the history of this litigation, the lack of inherent jurisdiction was specifically raised at two different, stages. It was raised in the original rent suit and in the rent appeal before the Additional District Judge.

Defence contention was accepted that the Civil Court had jurisdiction and the Revenue Court had no jurisdiction. The original Revenue Court delivered its judgment on 23-9-49 and by then the Orissa Tenants Protection Act had come into force. Similarly the Orissa Tenants Relief Act was in force during the pendency of the rent appeal, the judgment of which was delivered on 3-2-56. Both the Acts being in force, defendants resorted to the plea that only Civil Court had jurisdiction. Their contention was accepted. When the plaint was returned and filed before the Subordinate Judge, defendants took the contrary plea that the Civil Court had no jurisdiction. Their present plea on the basis of the aforesaid two sections of the Orissa Tenants Relief Act was available to them. The Civil Court negatived their objection and held that it had jurisdiction.

The matter was allowed to be final as no appeal was filed. Again the identical objection is being raised. The present objection is barred by res judicata. This conclusion is based mainly on the ground that whether the Court had inherent jurisdiction or not, the objection to jurisdiction having been specifically raised and decided the matter cannot be further allowed to be agitated. For the purpose of this case it must be treated inter partes that the Court passing the decree had inherent jurisdiction. See AIR 1936 Rang 87 (SB), Bank of Chetinad v. Chettiyar Firm and Nahar Singh v. Pirthisingh, AIR 1952 Raj 62.

5. Mr. Murty placed reliance on Govinda Das v. Parameswari Das, AIR 1957 Madh Pra 71 (FB) and Bai Shakri v. Bapu Singhji, AIR 1958 Bom 30. These cases do not take any contrary view. They are distinguishable on facts. The facts in Madhya Pradesh case were that the decree was passed by a Court having no jurisdiction and was as such a nullity. The decree-holder started two executions. In the first execution, the judgment-debtor raised objection that the decree was without jurisdiction. The decree-holder allowed that execution to go by default and no decision on the objection was taken. In the second execution, the judgment-debtor took the same objection and the execution was dismissed on the finding that the decree was a nullity. This is a case in which at no earlier stage there was a decision that the Court had inherent jurisdiction. This case does not go against the principle that once there is a decision that the Court had inherent jurisdiction, it cannot subsequently be questioned.

The facts in Bombay case were that in the written statement the defendant took plea that in the absence of a certificate under Section 86, C. P. C., the Court had no jurisdiction to pass a decree. The defendant did not, however, appear at the hearing of the suit and a decree was passed ex parte. In the execution the judgment-debtor took the objection that the decree was not executable in the absence of the certificate. The execution was accordingly dismissed. The second execution was filed after the decree-holder obtained a certificate to execute the decree. The judgment-debtor took the objection that the decree was without jurisdiction and the contention was upheld. It is clear from the facts of this case that in the first execution itself the objection regarding lack of inherent jurisdiction had been upheld and the conclusion in the second execution was consistent with that in the first execution and therefore the question of res judicata did not arise. It is, therefore, no authority against the proposition that once the question of absence of inherent jurisdiction was determined in favour of the plaintiff or the decree-holder, the matter cannot be reagitated.

6. The legal position may be summed up thus: The validity of a decree can be challenged in execution on the ground, that the Court which passed the decree, lacked inherent jurisdiction-- See Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 and Hira Lal v. Kali Nath, AIR 1982 SC 199. If, however, the question of absence of inherent jurisdiction was decided either in the suit or in the execution and it was held that the Court had inherent jurisdiction, the identical question cannot be subsequently raised inter partes, even if a different view is taken by another Judge that the Court had no inherent jurisdiction. It is barred by res judicata.

7. In this view of the matter, it is unnecessary to examine the other contention of Mr. Murty whether the Subordinate Judge had jurisdiction to pass a decree in view of the provisions of Section 9(1)(b) Proviso and Section 10(1) of the Orissa Tenants Relief Act.

8. In the result, the appeal fails and is dismissed with costs.


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