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Bindra Watch Company Vs. Delhi Sikh Gurdwara Board and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 239 of 1973
Judge
Reported inILR1974Delhi219
ActsDelhi Rent Control Act, 1958 - Sections 43 and 50; Code of Civil Procedure (CPC), 1908 - Sections 47 and 115 - Order 39, Rule 1
AppellantBindra Watch Company
RespondentDelhi Sikh Gurdwara Board and anr.
Advocates: V.B. Andley,; S.C. Malik and; B. Vijay Kishan, Advs
Cases ReferredPapavisasom Subrahmoniam v. Daivaiii Nagaramma and
Excerpt:
(i) delhi rent control act (1958) - section 43-scope and applicability of-order passed by controller-based on compromise between parties-challenged in a separate suit on ground of lack of jurisdiction and fraud-such a suit not barred as falling within the prohibition in section 43. ; that the word 'final' in section 43 of the delhi rent control act (1958) puts an end to a further appeal and also bars collateral proceedings. but, it is only the correctness of an order of the controller or an order in an appeal under the act that cannot be questioned in any original suit or collateral proceedings. ; where, thereforee, the plaintiffs were seeking to challenge, in a separate suit, the validity of the orders of the controller firstly on the ground that they were vitiated by fraud, and secondly.....t.v.r. tatachari, j.(1) these three civil revision petitions, nos. 239, 240. and 241 of 1973, can be disposed of by a common judgment.(2) the petitioners in the three revision petitions are (1) bindra watch company, (2) tara singh and another, and (3) dass and company respectively. the respondents in all the three revision petitions are the same, viz. (1) delhi sikh gurdwara board and (2) jathedar santokh singh. (3) the facts which have given rise to these revision petitions are as follows. each of the petitioners was a tenant of a separate premises (shop) belonging to the shromani gurdwara prabandhak committee (now delhi sikh gurdwara board). the shiromani gurdwara prabandhak committee (hereinafter referred to as the 'committee) through the second respondent filed on november 21, 1968,.....
Judgment:

T.V.R. Tatachari, J.

(1) These three Civil Revision Petitions, Nos. 239, 240. and 241 of 1973, can be disposed of by a common judgment.

(2) The petitioners in the three Revision Petitions are (1) Bindra Watch Company, (2) Tara Singh and another, and (3) Dass and Company respectively. The respondents in all the three Revision Petitions are the same, viz. (1) Delhi Sikh Gurdwara Board and (2) Jathedar Santokh Singh.

(3) The facts which have given rise to these Revision Petitions are as follows. Each of the petitioners was a tenant of a separate premises (shop) belonging to the Shromani Gurdwara Prabandhak Committee (now Delhi Sikh Gurdwara Board). The Shiromani Gurdwara Prabandhak Committee (hereinafter referred to as the 'Committee) through the second respondent filed on November 21, 1968, three applications against the three petitioners respectively under Section 22 of the Delhi Rent Control Act, 1958, for eviction of the petitioners from their respective premises. Even before the petitioners filed any written statement and adduced evidence, the parties entered into a compromise. The Controller, in terms of the compromise, passed orders of ejectment against the petitioners on January 2, 1969, subject to the condition that the petitioners shall not be liable to ejectment earlier than October 31, 1970.

(4) When the respondents filed applications for execution, the petitioners filed objections under Section 47 of the Code of Civil Procedure sub mitting that the orders of eviction were not executable for the various reasons mentioned in the objections. The petitioners also filed three suits on November 17, 1970, praying .that the orders of eviction passed on January 2, 1969, be declared as void and set aside, and that the Committee and the second respondent be restrained from interfering in the use and occupation of the respective premises -by the respective petitioners. The petitioners also filed applications for grant of temporary injunctions to the same effect pending disposal of the suits.

(5) The main pleas taken up by the petitioners in their plaints and in the applications for temporary injunctions were the same. They pleaded that the second respondent represented himself to be the Honorary Secretary of the Committee in the petitions for eviction, that he also represented that he was duly authorised to file the said petitions for eviction and also to enter into any compromise on behalf of the Committee, that believing that the second respondent was duly authorised to represent the Committee, the petitioners entered into the compromise, that they had recently come to know that the election of the second respondent as a member of the Committee had been declared void and the second respondent had been restrained from representing the Committee by a competent Court of law on April 24, 1967, that the second respondent fraudulently concealed the said fact and thereby misrepresented that he was entitled and authorised by the Committee to represent it, and that the orders of eviction were liable to be set aside on the ground that the second respondent played a fraud on the Controller as well as on the petitioners by the said misrepresentation by fraudulent concealment. They also pleaded that the second respondent fraudulently induced the petitioners to enter into the compromise by falsely representing himself to be the Honorary Secretary of the Comipittee and by representing to the petitioners that the premises in dispute were required by the Committee for the furtherance of its activities, that the second respondent let the petitioners believe that he was duly authorised to represent the Committee, and that otherwise they would not have agreed to the compromise. The petitioners further pleaded that the premises in dispute were situated in a slum area, and the previous permission of the Competent Authority to institute the eviction proceedings as required under Section 19(l)(a) of the Slum Areas (Improvement and Clearance) Act was not obtained, that in any case the alleged permission was illegal since the competent Authority did not determine the status of the petitioners, that he service of a notice under Section 106 of the Transfer of Property Act terminating the tenancies of the petitioners was a condition precedent for the institution of the eviction proceedings, and yet the second respondent fraudulently mentioned in the petitions for eviction that the service of the notice was unnecessary, and that the orders of eviction were obtained by compromise without any written statement filed by the petitioners, and the controller had no material to satisfy himself about the evidence of the alleged ground for eviction.

(6) On these pleas, the trial court ordered ex parte temporary injunction on November 17, 1970, restraining the Committee and the second respondent from dispossessing the petitioners from the premises in dispute.

(7) The Committee and the second respondent contested the applications for temporary injunctions. They pleaded that the suits were not maintainable under Section 50 of the Delhi Rent Control Act. that whether the second respondent was authorised to act on behalf of the Committee could very well be challenged by the petitioners in the proceedings for eviction, and having failed to raise any such objection in those proceedings, they could not take up again that objection, the same having been barred by the principle of constructive rest judicata, that the petitioners had filed objections under Section 47 of the Code of Civil Procedure in the Court of the Controller, Mrs. Santosh Duggal, in October, 1970, and in which the arguments had been heard by the Controller on November 21, 1970, and that the petitioners had raised all the present objections regarding the executability of the orders of eviction, and any order passed by the Controller would be rest judiciala in the present suits. They also pleaded that two appeals had been filed in the High Court of Delhi against the order in which the Committee was declared to be illegal, and the said order had been stayed by the High Court on May 8, 1967, that the said appeals have been nending, that the compromise was signed by the petitioners with open eyes, and they agreed to the genuineness and the bona fides of the ground for ejectment, and that they also made statements in the Courts admitting the correctness of the suits and the existence of the ground for ejectment on the basis of which the orders of eviction were passed.

(8) By an order, dated December 14, 1970, the learned Subordinate Judge pointed out that the parties compromised before the Competent Auhoority under the Slum Areas (Improvement and Clearance) Act, and on the basis of the compromise, permission to file petitions for eviction was granted by the Competent Authority, and that before the Controller also, the parties filed a compromise admitting the grounds for ejectment. The Controller then referred to the decisions in Bahadur Singh and another v. Muni Subrat and another, 1969 R.C.R. 151; (1). Shrimati Kaushalya Devi v. Shri K. L. Bansal; 1969 R.C.R. 703(2) Shri Ferozi Lal Jain v. Shri Man Mal and another, 1970 R.C.R. 375 (3) Mochi Damjibhai Trikambhai v. Dave Mansukhial, 1970 R.C J. 126 : (4) and Pulkurthi Hussain Sahib v. S. Gururaja Rao. 1970 R.C.R. 1000: (5) cited on behalf of the petitioners and in which it was held orders of eviction passed by the Controller on a compromise between the parties without the Controller satisfying himself about the existence of the grounds for cjectment. are a. nullity and not executable, as also the decisions in Mrs. Savitri Ahuja v. Harbans Singh Mchta, 1964 P.L.R. 890 (6): Vas Dcv Sharma v. Milkhi Ram Bhatia, 1960 P.L.R. 888 (7): Manohar Lal Chichra v. Topan Ram, Air 1964 Pun 311 (8): and Seth Muna Lal v. Seth Shiv Rattan G. Mohatta.. 1968 Dlt 401, (9) cited on behalf of the respondents and in which it was held that where the tenant himself admits the ground on which ejectment is sought, the Controller cannot pass any other order but that of ejectment, and the consent of he tenant does not make any difference in the result. The Controller pointed out that in the present cases the parties compromised even before the filing of the petitions for eviction, that the orders of the Controller did not state that he was satisfied about the grounds for ejectment so as to entitle the respondents herein to orders of eviction, that in the case of Ferozi Lal Jain (supra) the fact of sublet.ing was practically admitted indirectly and even then the Supreme Court held that the order for eviction was a nullity, and that in the case of Mochi Damjibhai Trikambhai (supra) also the arrears of rent were practically admitted as there was a provision in the compromise for payment of arrears of rent, but the order of eviction did not specify the satisfaction of the Controller about the existence of the ground of non-payment of rent, and on that basis it was held that the order for eviction was a nullity. The learned Subordinate Judge then held that in the present cases, although the admissions of the peitioners were there, it was not at all mentioned by the Controller while passing the orders for eviction that he was satisfied that the grounds for eviction existed, and that as such he was of the considered view that, prima facie, the petitioners (plaintiffs) had good cases which required adjudicaton by the Court, and in that view the orders of temporary injunction issued ex parte were liable to be maintained for the duration of the suits.

(9) As regards the contention that the eviction proceedings were vitiated by fraud, the learned Subordinate Judge, relying on the decisions in the Urban Co-operative Bank Ltd. v. Ramchander and others A.I.R. 1951 Ajm 101, wherein it wis held that an objection to represent a Society cannot be raised even in first appeal and can only be raised in the trial Court, held that the authority of the second respondent to institute the eviction proceedings on behalf of the registered Society (the Shiromani Gurdwara Prabandhak Committee) could be challenged only in the eviction proceedings themselves and not in subsequent proceedings.

(10) As regards the contention of the respondents that the suits were barred under Section 47 of the Code of Civil Procedure, he held that the petitioners had filed objections in the Court of the Controller and arguments had been completed, that as such it could not be said that the suits were barred under Section 47 or Section 11 of the Code of Civil Procedure, that although the mere filing of the objections did not bar the suits, if those objections were decided, then Section 11 of the Code of Civil Procedure might come into play, but that stage had not yet reached, and that it was sufficient to say that the contention had no force.

(11) In view of his above conclusions, the learned Subordinate Judge '' made the ex parte temporary injunctions absolute till the disposal of the suits.

(12) Against those orders, the respondents filed appeals, M.C.A. Nos. 297, 298 and 299 of 1971, in the Court of the Senior Subordinate Judge, Delhi. By his common judgment, dated March 9, 1973.. the learned Senior Subordinate Judge set aside the orders of the learned Subordinate Judge. In his judgment, the learned Senior Subordinate Judge classified the grounds on which the petitioners challenged the legality and executability of the orders of eviction as follows :-

(1)The second respondent Santokh Singh, played a fraud on the petitioners and the Controller by wrongly claiming to be the Honorary Secretary of the Committee.

(2)The second respondent fraudulently represented that the premises were required for the furtherance of the activities of the Committee.

(3)The eviction orders were had for want of satisfaction of the Controller regarding the existence of the grounds of ejectment.

(4)No permission was obtained from the Competent Authority under the Slum Areas (Improvement and Clearance) Act, before the filing of the petitions for eviction, and in any case the alleged permission was illegal as the Competent Authority did not go into the question of the financial status or means of the petitioners.

(5)No orders of eviction could be passed for want of notice under Section 106 of the Transfer of Property Act. whereas the second respondent falsely alleged in the petitions . for eviction that the service of the notices was not necessary.

(13) The learned Senior Subordinate Judge stated in his order that the petitioners (tenants) did not challenge the observations of the trial Court regarding ground (1), and did not press ground (4). It appears that the Controller had since passed his orders in the execution applications, and it was submitted by the respondent before he Senior Subordinate Judge that the Controller had over-ruled the objection of the petitioners under Section 47 of the Code of Civil Procedure. The learned Senior Subordinate Judge observed that the decision of the Controller one way or the other would not make any difference to the decision in the cases before him. As regards grounds (2) and (3), he observed that the applications for eviction were not contested and were compromised before the Controller, that the orders of eviction passed by the Controller did not show on the face of them that the Controller had applied his mind regarding the existence of the grounds on which the evictions were sought, and that he would, thereforee, presume prima fade and for the purpose of further discussion that the orders of eviction were had in law. As regards ground (5), he observed that the petitioners (tenants) did not challenge the contention of the respondents (landlards) that the notice under Section 106 of the Transfer of Property Act was not necessary.

(14) The learned Senior Subordinate Judge then considered the contentions of the respondents (landlords) that the suits were barred by Section 50 of the Delhi Rent Control Act and by Section 47 of the Code of Civil Procedure. He held that by virtue of Sections 43 and 50 of the Delhi Rent Control Act, the Civil Court had no jurisdiction to entertain the suits of the petitioners challenging the orders of eviction passed by the Conroller, and that the Controller had the authority to hear and decide he objections regarding the executability of the orders of eviction under Section 47 of the Code of Civil Procedure, and once it is admitted that such objecions can be raised under Section 47 of the Code of Civil Procedure, the said Section bars the filing of separate suits in a civil Court. He expressed his view that the observations of the Supreme Court in Kiran Singh and others v. Chaman Paswan and others, : [1955]1SCR117 , to the effect that a decree passed by a Court without jurisdiction is a nullity, and the invalidity of the decree can be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings, are obiter dicta, that although the obiter dicta of the Supreme Court are binding on the subordinate courts, the general' rule summarised in the obiter dicta applies only in cases where there is no statutory law applicable, and that in the present cases, since Section 43 and 50 of the Delhi Rent Control Act and Section 47 of the Code of Civil Procedure debar the court from entertaining the present suits and from granting temporary or permanent injunctions, the relief prayed for by the petitioners could not be granted on the basis of the aforesaid observations of the Supreme Court.

(15) The learned Senior Subordinate Judge also observed that the petitioners (tenants) had not challenged the jurisdiction of the Controller to decide the petitions for eviction, but merely pleaded that the second respondent made certain fraudulent representations, and that the Controller passed the orders for eviction without satisfying himself about the existence of the grounds on which evictions were sought- He further observed that a party to an earlier suit or proceeding can file a suit for setting aside the order passed against him on the basis of fraud, but that is only when the fraud is extrinsic or collateral to the adjudication involved in the order, as held in Papavinasom Subrahmaniam v. Daivani Nagaramma and others, : AIR1963Ker26 and that the three instances of fraud alleged in the present cases, viz. (1) that the second respondent wrongly claimed to be the Honorary Secretary to the Committee, (2) that the second respondent fraudulently represented that the premises in dispute were required for furtherance of the activities of the Committee, and (3) that the second respondent falsely alleged that service of notice under Section 106 of the Transfer of Property Act was not necessary in each of the cases, were not extrinsic or collateral, and consequently independent suits could not lie for challenging the orders of eviction on the ground of fraud. In that view, the learned Senior Subordinate Judge held that the petitioners (plaintiffs-tenants) were not entitled to the grant of temporary injunctions. Accordingly, he allowed the appeals and set aside the temporary injunctions granted by the trial court. It is against the said appellate orders that the present Civil Revision Petitions have been filed by the plaintiffs-tenants.

(16) These three revision petitions have thus arisen out of the applications for temporary injunctions filed by the petitioners. It is a well settled principle that before granting temporary injunctions under Order 39 Rules I and 2 of the Code of Civil Procedure, the Court has to be satisfied firstly that the petitioners who pray for the said temporary injunctions have a prima facie arguable case in support of their claims in the suits. The learned Subordinate Judge was of the view that the petitioners had such a case as, according to him, the Controller had not satisfied himself about the existence of the ground on which evictions were sought. The Senior Subordinate Judge agreed with that view, but held that the petitioners had no prima facie case as (1) the suits themselves were barred under Sections 43 and 50 of the Delhi Rent Control Act, (2) the suits were barred under Section 47 of the Code of Civil Procedure and (3) the plea of fraud could be agitated by filing the suits provided there was extrinsic fraud, and taking the allegations on their face value no extrinsic fraud was made out.

(17) The first question for consideration is, thereforee, whether the suits were barred by Sections 43 and 50 of the Delhi Rent Control Act. The relevant portions of the said Sections read as under :-

'43.Finality of Order.-Save as otherwise expressly provided in this Act, every order made by the Controller or an order passed on appeal under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding.'

'50.Jurisdiction of Civil Courts barred in respect of certain matters :-

(1)Save as otherwise expressly provided in this Act. no Civil Court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant there from or to any matter which Control leiis empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any Civil Court or other authority.

(2).....................

(3)....................

(4)Nothing in sub-section (1) shall be construed as preventing a Civil Court from entertaining any suit or proceeding for the decision, of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises.'

(18) As regards Section 43, the learned Senior Subordinate Judge was of the view that since the said Section provides that every order made by the Controller shall be final and shall not be called in question in any original suit, the suits filed by the petitioners (plaintiffs-tenants) could not be entertained by the Civil Court. The expression 'final' and the words 'shall not be called in question in any original suit, application or execution proceedings' in Section 43 were explained by the Supreme Court in South Asia Industries Private Ltd. v. S. B. Sarup Singh and others. 1966 (68) P.L.R. 195 CDelhi Section). (13) thus in paragraph 10 :-

''THEexpression 'final' in the first part of Section 43 of the Act puts an end to a further appeal and the words 'shall not be called in question in any original suit, application or execution proceeding' bar collateral proceedings. The Section imposes a total bar. The correctness of the judgment in appeal cannot be questioned by way of appeal or by way of collateral proceedings.'.

(19) Rai Brij Raj Krishna and another v. Messrs S. K. Shah and Brothers, : [1951]2SCR145 , the Supreme Court, while considering the provisions in the Bihar Buildings (Lease, Rent and Eviction) Control Act Iii of 1947, observed as under :-

'THEAct has entrusted the Controller with a jurisdiction. which includes the jurisdiction to determine whether there is non-payment of rent or not, as well as the jurisdiction, on finding that there is non-payment of rent. to order eviction of a tenat. thereforee, even if the Controller may be assumed to have wrongly decided the question of nonpayment of rent, which by no means is clear, his order cannot be questioned in a Civil Court.'

(20) Thus, it is only the correctness of an order of the Controller or an order in an appeal under the Act that cannot be questioned in any original suit or collateral proceedings. In the present cases, the petitioners (plaintiffs-tenants) were not seeking to question the correctness of any finding or the order of the Controller or the jurisdiction of the Controller to entertain the petitions for eviction. They were seeking to challenge the validity of the orders of the Controller firstly on the around that they were vitiated by fraud and secondly on the ground that the orders passed on the basis of a compromise were without jurisdiction and, thereforee, nullities as, according to them, the Controller did not satisfy himself about the existence of the ground on which eviction was sought, but merely passed the orders of eviction on the basis of the compromise between the parties. Such grounds do not fall within the prohibition in Section 43, and the suits cannot prima fade be said to be barred by the provision in Section 43. In Baijnath Sa v. Ram Prasad, : AIR1951Pat529 a similar view was taken by a Division Bench of the High Court of Patna (B. P. Sinha and C. P. Sinha JJ.) regarding the effect of the provision in Section 18(3) of the Bihar Buildings (Lease, Rent and Eviction) Control Act Iii of 1947 which was similar to the provision in Section 43 of the Delhi Rent Control Act, 1958. The said Section 18(3) provided that-

'THEdecision of the Commissioner and subject only to such decision, an order of the Controller shall be final and shall not be liable to be questioned in any Court of law whether in a suit or other proceeding by way of. appeal or revision.'

THEDivision Bench observed in paragraph 7 as under.-

'THISAct has barred the jurisdiction of the Civil Courts under Section 18 of the Act. But, it must be conceded, inspire of such a bar, that, if the House Controller or the Commissioner acts without jurisdiction or in excess of the jurisdiction as given to them under the Act. the Civil Court has jurisdiction to determine whether or not an order passed by the House Controller or the Commissioner is without jurisdiction or in excess of the jurisdiction conferred upon them by the Act.'

(21) However, on the facts of that case. the Division Bench held that the order for eviction passed by the Commissioner was not .without jurisdiction, and thereforee, it could not be challenged in an original Suit. The principle mentioned by the learned Judges in the passage quoted above cannot be disputed, and it is only for that purpose that reference has been made by me to the aforesaid decision. As observed by the Supreme Court in Kiran Singh and others v. Chamarn Paswan and other, : [1955]1SCR117 , 'it is a fundamental principle well established that a decree passed by a Court without jurisdication is a nullity.' If the orders of the Controller in the present cases were without jurisdiction and, thereforee, nullities, the same can be questioned in an original suit or a collateral proceeding.

(22) The question then is whether the orders of eviction passed by the Controller in the present cases were without jurisdiction and, thereforee, nullities. As already stated, the learned Subordinate Judge took the view that the orders of eviction were passed by the Controller without satisfying himself about the existence of the ground on which eviction was sought. The learned Senior Subordinate Judge also agreed with the said view. As held in Bahadur Smgh and another v. Muni Subrat and another (supra) Shrimati Kaushalya Devi v. Shri K. L. Bansal (supra), Shri Ferozi Lal Jain v. Shri Man Mal and another fsupra), Mochi Dainjibhai Trikambhai v. Dave Mansukhial, ('supra), and Pulakurthi Hussain Sahib v. S. Gururaja Rao (supra), orders of eviction passed by a Controller without satisfying himself about the existence of the grounds on which eviction is sought under Section 14 of the Delhi Rent Control Act are nullities and inexecutable. The validity of such orders can, thereforee, be questioned in an original suit in a civil Court, and the provision in Section 43 of the Delhi Rent Control Act would not be a bar.

(23) My attention has been drawn to the decisions in K- K. Chari v. R. M. Sehadri, 1973 R. C. R. 589 (16), Messrs Tara Singh Harbhajan Singh and other v. Gurdwara Prabandhak Committee, 1973 R C. R. 678. (17), Mrs, Savitri Ahuja v. Harbans Singh Mchta (supra), Vas Dev Sharma v. Milkhi Ram Bhatia (supra), Manohar Lal Chichra v. Topan Ram (supra), and Seth Muna Lal v. Seth Shiv Rattan G. Mohatta (supra). They are all cases in which it was held that where the tenants themselves admit the ground on which ejectment is sought, the Controller may treat the said admission as evidence in satisfying himself about the existence of the ground on which eviction is sought. In Messrs Tara Singh Harbhajan Singh's case (supra), S. N. Shankar J- speaking for the Division Bench enunciatedthe legal position in paragraph 9 as under:-

'ASobserved by the Supreme Court in Chari's case (supra) the correct legal position in such cases would be that where order for eviction was based on consent of the parties that fact alone will not necessarily vitiate the orders if the jurisdictional fact, i.e., the existence of one or more of the conditions mentioned in the provision which entitled the landlord to seek eviction, or shown to exist when the order for eviction is made. It is undoubtedly true that the satisfaction of the Court in terms of the Act is a prerequisite of the order of eviction but it need not necessarily be recited in the order and the absence of that recitation will not make it inoperative if it is found that on the material before him the Rent Controller was satisfied about the grounds on which the order for eviction was passed by him. Admissions of tenants for this purpose constitute not only good but conclusive evidence.'

(24) It has to be noted that the aforesaid decisions, while emphasising that the satisfaction of the Controller about the existence of the grounds on which eviction is sought is a condition precedent for passing orders of eviction, pointed out that admission of tenants would constitute not only good but conclusive evidence. Thus. the decisions dealt only with the procedural aspect of the matter, and did not lay down any proposition which is contrary to the decisions of the Supreme Court in the case of Bahadur Singh and another (supra) and other cases. already referred to, to the effect that orders of eviction passed by a Controller without satisfying himself about the existence of the grounds on which eviction is sought under Section 14 of the Delhi Rent Control Act are nullities and inexecutable. thereforee, it is for the Court to consider in each case whether there was such satisfaction, express or implied, on the part of the Controller when he passed the orders of eviction. Consequently, when a tenant files a isuit alleging that the Controller, before passing the order of eviction, did not satisfy himself about the existence of the ground on which eviction was sought and contends that the order of eviction was a nullity, the Court has to consider whether the allegation was made with or without any basis. In the present cases, it was not specifically stated in the orders of eviction that the Controller was satisfied about the existence of the grounds of eviction. It is true that. as pointed out by Shankar. J. in the case of Messrs Tara Singh Harbhajan Singh (supra), the absence of a recitation of the satisfaction of the Controller in the orders of eviction would be immaterial if it is found that on the material before him the Controller was so satisfied. The learned Senior Subordinate Judge without adverting to this aspect at all in his judgment agreed with the view of the learned Subordinate Judge that the Controller passed orders of eviction without satisfying himself about the existence of the ground on which eviction was sought. It cannot, thereforee, be said straightway on the material on the record either that there was such satisfaction or that there was not such suchsfaction. It is a matter that has to be gone into and decided by the Court on the evidence adduce in the trial of the suit. For the purposes of the present question as to whether the suits were priina facic barred by Section 43 of 'the Delhi Rent Control Act, there is the allegation of the petitioners that the Controller did not satisfy himself, and all that can be stated at this stage is only that the orders of eviction would be nullities and Section 43 would not be a bar if the allegation is substantiated by the petitioners. It follows that it would not be correct to say at this stage that the petitioners have no prima facie case when they contend that the Controller did not satisfy himself about the existence of the ground of eviction, and that the orders of eviction were consequently nullities and the suits were not, thereforee, barred by Section 43 of the Delhi Rent Control Act.

(25) Mr. H. C. Malik, learned counsel for the respondents, submitted that petitioners preferred appeals to this High Court against the orders of the Controller dismissing their objections to the execution applications, that the appeals have since been dismissed and the judgment lias been reported in Messrs Tara Singh Harbhajan Singh v. Gurdwara Prabandhak Committee, 1973 R.C.R. 678. that the petitioners filed petitions for special leave to appeal to the Supreme Court, but the same were dismissed, that the order of the Controller dismissing the objections has thus become the order of the Supreme Court, and that the same operates sa rest judicata btween the parties so far as the plea of the petitioners that the Controller passed the orders of eviction without satisfying himself about the existence of the ground for eviction is concerned. It is not necessary to go into the said plea of rest judicata, because, even assuming that the said plea is correct, the contention of the petitioners that the orders of eviction were nullities on the ground of fraud still remains and the same can be canvassed in the suits filed by the petitioners.

(26) As regards Section 50, the learned Senior Subordinate Judge took the view that the Controller could execute the ordcre of eviction under Section 42 of the Delhi Rent Control Act, and consequently no injunction in respect of the action to be taken by the Controller under the Act could be granted in view of the provision in Section 50(1). It is true that under Section 42 of the Delhi Rent Control Act orders of eviction passed by a Controller can be executed by the Controller. But, the question is whether Section 50(1) bars the issuance of an injunction by a Civil Court in an original suit against the execution of the orders of eviction on the ground that the said orders of eviction were nullities. In the suits filed by the petitioners, they prayed for a declaration that the orders of eviction were null and void. and for a permanent injunction restraining the landlords from interfering with the use and occupation of the respective premises by the respective petitioners. They also filed applications for temporary injunctions pending the disposal of the suits. A reading of the said sub-section ( 1 ) of Section 50 shows that it consists of two parts. The first part bars the jurisdiction of civil courts to entertain any suit or proceeding in so far as it relates (a) to the fixation of standard rent in relation to any premises to which the Act applies or (b) to eviction of any tenant there from (c) to any matter which the Controller is empowered by or under the Act to decide. The second par? prohibits a civil court from granting any injunction in respect of any action taken or to be taken by the Controller under the Act. It has to be noted that the first part of the sub-section bars only suits relating to what the Controller has jurisdiction to do under the Act- The Controller has not been given jurisdiction to try suits for a declaration like the present suits. The prayer for declaration in the present suits does not relate to the matters (a), (b) or (c). Thus, the first part of the sub-section does not apply to the present cases. So far as the second part of the sub-section is concerned, the petitioners did not ask for an injunction against execution of the orders of eviction as such- They prayed for a permanent injunction as a relief consequential upon the declaration sought for. The prayer for a temporary injunction was only pending the disposal of the suits, and if the suits for a declaration as such were maintainable in a civil court, the grant of prayers for permanent and temporary injunctions as consequential and auxiliary reliefs would be within the competence of the civil Court.

(27) The learned senior subordinate Judge reffered to sub-section (4) of Section 50 and pointed out that the said sub-section excludes only a suit or a proceeding for the decision of any question of title to any premises to which the Act applies or any question as to the person or persons who are entitled to receive the rent of such premises and that the suits filed by the petitioners were not such suits. The said subsection cannot be read as containing an exhaustive enumeration of all the matters which do not fall within sub-section (1) of Section 50, because, if it is to be treated as exhaustive.it would mean that any matter which does not otherwise fall within Section 50(1) has to be regarded as included in the said sub-section merely because it is not mentioned in sub-section (4). Sub-section (4) cannot, thereforee, be of any assistance in finding out whether any particular matter falls within the scope of Section 50(1).

(28) It follows from the above discussion that the view of the Seamed Senior Subordinate Judge that the suits filed by the petitioners were prima fade barred by section 43 and 50 of the Delhi Rent Control Act cannot be accepted as correct.

(29) The second question for consideration is whether the view of the learned Senior Subordinate Judge that the suits filed by the petitioners were barred by Section 47 of the Code of Civil Procedure can be accepted as correct. In paragraph 14 of his judgment, the reasoning was that all objections on questions regarding the executability of the orders of eviction could be entertained and decided by the Coatroller, and that once it is admitted that objections or questions like those raised by the petitioners in their suits could be raised in the execution proceedings. Section 47 bars the filing of separate suits on the basis of the said objections. In that reasoning the learned Senior Subordinate Judge wrongly assumed that all the objections or questions raised by the petitioners in their suits could be raised in the execution proccedngs.

(30) The law as regards the powers of an executing court and the questions that can be determind by the Court executing a decree is now settled to a large extent by decisions of the Privy Council and the Supreme Court. It is an established rule that a court executing a decree cannot go behind the decree, but must take the decree as it stands (vide Bank of Bihar. Limited v. Sarangdhar Singh and another, 75 1.A. 300, 304 (P.C.) (18). V. Ramaswami Aivanagar and others v. T. N. V. Kailasa Thevar. : [1951]2SCR292 . and Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others, : [1971]1SCR66 ). It cannot go into any question as to the correctness or ligelity of a decree, the reason being that a decree, though it may not be correct or according to law, is binding and conclusive between the parties until it is set aside either in appeal or revision (ride Girish Chander Lahir v. Shoshi Shikhaiesw.ir Roy. 27 1.A. 110, 124 (P.C.) (21). Sri Rajah Papamma Rao Bahadur v. Sri Vira Pratapa Korkonda. 23 1.A. 32. 35 (P.C.) (22), Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehinan and others, : [1971]1SCR66 , and Bahadur Singh and another v. Muni Subrat Dass & another. : [1969]2SCR432 ). It can. however entertain an objection that the decree is a nullity because the Court which passed the decree has no inherent jurisdiction to pass it, and the decree is. thereforee, incapable of execution (vide Jnanenora Mohan Bhaduri v. Rabindra Nath Chakravarti, 60 T.A. 71, 75 (P.C.) (24), and Hira Lal Patni v. Sri Kali Nath. : [1962]2SCR747 . But, lack of territorial or pecuniary or personal jurisdiction does not make a decree a nullity, and so an executing Court cannot go into such an objection (vide Hira Lal Patni v. Sri Kali Nath : [1962]2SCR747 ). An objection that the decree was obtained by fraud cannot also be raised before an executing Court (vide Jalandhar Thakur v. Jharula Das. Air 1914 P.C. 72 (26), Khagendra Nath Mahata v. Pran Nath Roy. 29 Cal 395 (27), Dhani Ram Mahta v. Luchmeswar Singh, 23 Calcutta 639, 641 (28), Suikeena Katum Sahiba v. Mahomed Abdul Aziz, A.I.R. 1916 Mad 792 (29), Sudindra v. Budan, 9 Mad 80, and Karamat Ali and another v. Mt. Sogra, Air 1961 Pat 434 (31).

(31) Section 47 of the Code of Civil Procedure provides that a!l questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. Clearly, the bar to a separate suit contained in Section 47 applies only where the questions involved in the suit relate to 'execution, discharge, or satisfaction of the decree'. In their suits, the petitioners challenged the orders of eviction was sought. This has already been discussed earlier in dealing ler did not satisfy himself about the existence of the grounds on which eviction was sought. This has already been discussed earlier in dealing with the question as to whether Section 43 of the Delhi Rent Control Act was a bar to the maintainability of the suits filed by the petitioners.

(32) The second ground was that the orders of eviction were vitiated by fraud played by the second respondent. It is now well settled that the question whether a decree was obtained by fraud or collusion is not one which relates to the execution of the decree but one which affects its very subsistence and validity and as such the said question can only beraised in a separate suit and not under Section 47 in execution 34 (vide Jalandhar Thakur v. Jharula Das and other cases, referred to earlier).

(33) Thus, the view of the learned Senior Subordinate Judge that the suits filed by the petitioners were barred by the provision in Section 47 of the Code of Civil Procedure, cannot be accepted as correct.

(34) The last question for consideration is as to whether the view taken by the learned Senior Subordinate Judge that although the plea of fraud could be agitated by the petitioners by filing the suits, they could successfully do so only if the alleged fraud was extrinsic or collateral, and that taking the allegations of the petitioners on their face value no such extrinsic of collateral fraud was made out, was correct. Mr.S. C. Malik, learned counsel for the respondents urged that even if the suits by the petitioners are otherwise maintainable, the question would still remain as to whether they have a prima fade case on merits so far as their contention that the orders of eviction were vitiated by fraud is concerned. In Chinnava v. Ramanna I.L.R. 38 Madras 203 it was held that-

'INorder that fraud may be a ground for vacating a judgment, it must be a fraud that is extrinsic or collateral to everything that has been adjudicated upon, but not one that has been or must be deemed to have been dealt with by the Court.'

(35) In Kadirvelu Nainar v. Kuppuswami Naiker, I.L.R. 41 Mad 743 Sadasiva Ayyar J., speaking for the Full Bench observed as follows:-

'The test to be applied is, is the fraud complained of not something that was included in what has already been adjudged by the Court, but extraneous to it ?......Where two parties fight at arm's length, it is the duty of each to question the allegations made by the other and to adduce all available evidence regarding the truth or Falsehood of it. Neither of them can neglect his duty and afterwards claim to show that the allegation of his opponent was false.'

(36) The above two decisions were followed by a Division Bench of the Circuit Bench of the Punjab High Court at Delhi (Dua and Shamsher Bahadur, JJ.) in Mrs. Savitri Ahuja v. Harbans Singh Mehta, 1964 P.I..R. 890.. To the same effect is the decision in Papavisasom Subrahmoniam v. Daivaiii Nagaramma and others, : AIR1963Ker26 (supra).. In view of the said decisions, Mr. Malik conceded that the suits filed by the petitioners would be maintainable on the ground of fraud if the allegations made by them prima fade constitute extrinsic or collateral fraud. The said allegations arc contained in paragraph 8 of each of the plaints and, as pointed out by the learned Senior Subordinate Judge, mainly three instances of fraud are referred to therein. They are (1) that the second respondent wrongly claimed to be the Honorary Secretary of the Committee, (2) that the second respondent fraudulently represented that the premises in dispute were required for the furtherance of the activities of the Committee, and (3) that the second respondent falsely alleged that service of notice under Section 196 of the Transfer of Property Act was not necessary in each of the cases. All the three instances are such as could and should have been taken in the eviction proceedings themselves, and which could have been dealt with by the Controller before passing the orders of eviction. As observed by the learned Senior Subordinate Judge, they do not prima fade constitute extrinsic or collateral fraud. The learned Senior Subordinate Judge was, thereforee, justified in taking the view that taking the allegations on their face value no extrinsic fraud was made out, and so the petitioners did not appear to have a prima fade case on the merits of their contention based on fraud. In any case, the said view of the learned Senior Subordinate Judge is a finding of fact, and it does not suffer from any legal infirmity which calls for interference under Section 115 of the Code of Civil Procedure. Once the aforesaid view is held to be correct, it follows that the conclusion of the learned Senior Subordinate Judge that the petitioners were not entitled to the grant of temporary injunctions, has also to be held as correct.

(37) For the foregoing reasons, the Civil Revision Petitions Nos- 239, 240 and 241 of 1973 fail and are dismissed- In the circumstances of the case, the parties are directed to bear their own costs in the Civil Revision Petitions.


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