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S. Joginder Singh Vs. Nirmal Naini Mehra and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 147 of 1985
Judge
Reported inAIR1986Delhi305; 28(1985)DLT418; 1985(9)DRJ301
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantS. Joginder Singh
RespondentNirmal Naini Mehra and ors.
Advocates: I.S. Mathur,; G.N. Aggarwal and; Raj Kishan, Advs
Cases ReferredShewa Lachha Banjar v. Bhawarilal
Excerpt:
.....of the act is mandatory in nature--in the absence of such an order and its non-compliance by the tenant, the controller is not competent to pass an order of eviction--the prohibition is absolute--the order thereforee is without jurisdiction, void and nullity and incapable of execution. - - (1) this second appeal raises an interesting question of law. it has, thereforee, become final (3) during the eviction proceedings joginder singh (objector) made an application under rule 10 of order 1, code of civil procedure, for being added as a party-respondent on the ground that he was in possession of the premises in dispute as a lawful sub-tenant, but was unsuccessful up to the supreme court. counsel for the petitioner also contended that the petitioner has failed to comply with the order..........of law. the question is: whether the order of eviction dated october 25, 1978 made by the addl rent controller under clause (j) of the proviso to sub section (1) of section 14 of the delhi rent control act, 1958 (tor short 'the act') but in violation of section 14(10), was an order without jurisdiction and thereforee a nullity and incapable of execution (2) khem raj ahuja (since deceased) was a tenant in respect of a shop no. 10-b, khan market, new delhi- mis- nirmal naini mehra, the landlady, bought a petition for his eviction from the said shop on the allegations that the tenant had caused substantial damage to the shop by demolishing a wall. the addl. controller, holding that the tenant had caused substantial damage to the premises in dispute, made an order for recovery of.....
Judgment:

G.C. Jain, J.

(1) This second appeal raises an interesting question of law. The question is: Whether the order of eviction dated October 25, 1978 made by the Addl Rent Controller under clause (j) of the proviso to sub Section (1) of Section 14 of the Delhi Rent Control Act, 1958 (tor short 'the Act') but in violation of Section 14(10), was an order without jurisdiction and thereforee a nullity and incapable of execution

(2) Khem Raj Ahuja (since deceased) was a tenant in respect of a shop No. 10-B, Khan Market, New Delhi- Mis- Nirmal Naini Mehra, the landlady, bought a petition for his eviction from the said shop on the allegations that the tenant had caused substantial damage to the shop by demolishing a wall. The Addl. Controller, holding that the tenant had caused substantial damage to the premises in dispute, made an order for recovery of possession of the shop in dispute in favor of the landlady against the tenant on October 25, 1978. He admittedly did not make any order as contemplated by Section 14(10) of the Act. No appeal was filed by the tenant against this order. It has, thereforee, become final

(3) During the eviction proceedings Joginder Singh (objector) made an application under Rule 10 of Order 1, Code of Civil Procedure, for being added as a party-respondent on the ground that he was in possession of the premises in dispute as a lawful sub-tenant, but was unsuccessful up to the Supreme Court.

(4) On November 3, 1978 when the bailiff went to the spot for executing the warrants for possession issued by the Addl Controller in execution of the above mentioned eviction order, the objector resisted the delivery of possession of the shop to the landlady. On the next day he moved an application purported to be under Section 151 C. P. C. before the Addl. Controller. It was averred that he occupied the shop in question initially as a sub-tenant with the consent of the landlady hut after the making of the eviction order he had been taken as a direct tenant, it was prayed that no further proceedings in the matter may be taken unless and until the landlady/decree-holder moved an application under Rule 97 of Order 21 C. P. C. and notice of the said application was given to him.

(5) The landlady, on the other hand, moved an application for delivery of possession of the shop by breaking the locks and door. It was averred that the objector had no locus standi to obstruct the execution of the eviction order. Some controversy was raised whether this application could be treated as an application under Rule 97 of Order 21 C. P. C. but it was ultimately settled by the Supreme Court in Special Leave Petition (Civil No 8201/80) decided on September 23, 1980. It was held that this application made by the landlady would be treated as an application under Order 21 Rule 97 C. P. C.

(6) During the pendency of this application the objector moved another application on December 5, 1984 purported to be under Section 47 read with Section 151 C. P. C. It was alleged that the eviction order made by the Addl. Controller, being vocative of the provisions contained in Section 14(10) of the 'the Act', was void ambition and incapable of execution.

(7) Mr. Ajit Bharihoke. Addl. Controller, Delhi by his order dated February 16, 1985 held that the objector was neither a sub-tenant with the consent of the landlady nor had ever become her tenant and had no independent title to these premises, He further held that the order had been passed by a court of competent jurisdiction. The order at the most may be wrong but was not null and void and in any case the objector had no locus .standi to challenge the validity of the eviction order. With these findings he dismissed the objections of the objector, allowed the application of the landlady and issued warrants for possession by breaking open the locks. The appeal filed by the objector against the said order was dismissed by the Rent Control Tribunal. Hence this second appeal.

(8) The finding recorded by the courts below that the objector had no independent title to the shop was necessarily a finding of fact. It could not be assailed in this second appeal and has not rightly been assailed.

(9) The Addl. Controller in the eviction order observed : 'Ld. counsel for the petitioner also contended that the petitioner has failed to comply with the order passed under Section 15(1) of the D. R. C. Act. My Ld. predecessor Sh. D. C. Aggarwal. Rent Controller, as then he was, passed an order under Section 15(1) of the D.R.C. Act directing the respondent to deposit arrears of rent at the rate of Rs. 50.00 per month by 15th day of each succeeding month. Today, an affidavit has been moved by the petitioner under Section 15(7) of the D. R. C. Act. He has drawn my attention. towards the fact that the respondent has not paid the rent w e.f. 1st August 1977. Naib Nazir has confirmed this fact. In the affidavit it has been mentioned that respondent has not paid the rent to the petitioner.' In view of these observations an argument was sought to be built on behalf of the landlady that the eviction order was not only under clause (j) but also an order under clause (a) of the proviso to sub-section (1) of.Section 14 of the Act. This contention has no substance whatsoever. A perusal of para 18(a) of the eviction petition, which contained the ground on which eviction was sought, reveals that the eviction had been claimed only on the allegation that the tenant had caused substantial damage to the properly by demolishing the landlady's wall shown by dotted lines in the plan. Though in para 19, where the landlady was required to give any other relevant information it has been stated that the tenant had not paid rent since November 6, 1966 but there was no allegation that the rent had not been paid or tendered in spite of service of notice of demand. The application, without any doubt, was an application under clause (j). As a matter of fact no order under Section 15(1) of the Act was ever made in these proceedings. The order made on November 17, 1969 was an order under Section 15(2) of the Act. The application dated August 12, 1969 moved by the landlady, on which the above order was made, was also an application under Section 15(2) of the Act. For these reasons I hold that the order made by the Addl. Controller was an order for eviction under clause (j) of the proviso to sub-section (1) of Section 14 of the Act only.

(10) Sections 14(1)(j) and 14(10) of the Act read as under ;

'14.Protection of tenant against eviction :- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court of controller in favor of the landlord against a tenant : Provided that the Controller may, on an. application. made to him in the prescribed manner, make an order for the recovery of possession of the premises one or more of the following grounds only. namely :- (j) that the tenant has whether before or after the commencement of this Act. caused or permitted to be caused soused substantial damage to the premises : (10) No order for the recovery of possession of any premises shall be made on the ground specified in clause (j).of proviso to sub-section (1), if ihe tenant within such time as may be specified in this behalf by the Contreller, carries out repairs to the damage caused to the satisfaction of the Controller, or pays to the landlord such amount by way of compensation as the Controller may direct.'

(11) Clause (J) of the proviso to sub-section (1) of Section 14 of the Act, as is clear from a plain reading of the above provisions, empowers the Controller to make an order for recovery of possession of the premises if the tenant has caused or permitted to be caused substantial damage to the premises. Thus in an application for recovery of possession of the premises under clause (J) the Controller has first to determine the question whether the tenant has caused or permitted to be caused substantial damage to the tenanted premises. If he returns a finding in favor of the tenant that is the end of the matter and he must dismiss the petition for eviction. But if it is held that the tenant had caused or permitted to be caused substantial damage to the premises the Controller is not competent to immediately make an order for recovery of possession because the provisions contained in Section 14(10) of the Act mandate the Controller to make an order directing the tenant either to carry out the repairs to the damage caused within a specified period or to pay to the landlord such amount by way of compensation as he may direct. Order for recovery of possession could be made only if the tenant failed to comply with this order. In the present case admittedly no order, directing the tenant to carry out repairs to the damage caused or to pay to the landlady such amount by way of compensation as the Controller may direct, was made. The order for recovery of possession was, thereforee, vocative of the provisions contained in Section 14(10) of the Act. What is the effect of this violation

(12) The executing court, generally speaking, must execute the order as it stands. It cannot question the correctness or validity of the decree except when it is without jurisdiction and thereforee a nullity.

(13) As defined by Saunders in Words and Phrases, Second Edition, 'By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted and may be extended or restricted by the like means'. According to Stroud's Judicial Dictionary Fourth Edition 'Jurisdiction' of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference (1) to the subject-matter of the issue or (2) to the persons between whom the issue is joined or (3) to the kind of relief sought, or to any combination of these factors.'

(14) Thus 'jurisdiction' is the power and authority conferred by law upon a court, judge or tribunal to decide the disputes and make judgments/ orders authorised by law.

(15) There are in general three jurisdictional elements in every valid judgment, namely, jurisdiction of the subject matter, jurisdiction of the person and the power or authority to render the particular judgment. Absence of any of these jurisdictional elements would render the judgment void and a mere nullity. Such an order would be open to attack or impeachment in collateral proceedings including execution proceedings.

(16) It was not disputed that Mr. J. M. Malik. who made the impugned order, had been duly appointed as an Addl. Controller under Section 35 of the Act. The shop in dispute was situated in Khan Market. New Delhi, an area within the limits of New Delhi Municipal Committee and 'the Act' was admittedly applicable to the area (see Section 1(2) of 'the Act'). Admittedly there was relationship of landlord and tenant between the parties. Thus he had jurisdiction of the subject matter, jurisdiction of the person and the authority to decide the dispute in question.

(17) The power to decide the dispute, however, was limited to decided it as authorised by law. A Controller has no jurisdiction to make an eviction order on a ground not provided under 'the Act'. If he makes such an order it would, undoubtedly, be without jurisdiction. Can it be said that this jurisdictional element was lacking in this case also because the impugned order had been made in violation of the provisions contained in Section 14(10) of 'the Act'

(18) Every order made in contravention of some provisions of law cannot necessarily be treated as an order without jurisdiction or a nullity. Every party has a right to waive the advantage of a law made solely for his benefit and protection. However, there can be no waiver of a statutory requirement which is imposed in public interest. 'If the object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered as being indispensable. This rule is expressed by the maxim of law. Quilibe protest renuntiare juri pro se introductory ('An individual may renounce a law made for his special benefit') As a general rule. the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit. of the parties to the action themselves, and that no public interests are involved, such conditions, will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court'. (See Craies on Statute law Seventh Edition, Page 269).

(19) Thus it is clear that a waiver, i.e. an intentional relinquishment of a known right conferred by a statute will be inoperative and void if it would be against public policy. This principle was approved by the Supreme Court in Dhirendra Nath Gorai v. Sudinr Chandra Ghosh and others : [1964]6SCR1001 . The relevant observations read :

'WHERE the court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it which it has not. Where such jurisdiction is not wanting, a directory provisions can obviously be waived. But a mandatory provisions can only be waived if it is not conceived in the public interest, but in the interest of the party that waives it.'

In this Judgment the Supreme Court approved the workable test which had been laid down by Justice Coleridge in Holmes v. Russell, (1841) 9 Dow 487 which read:

'IT is difficult sometimes to distinguish between an irregularity and a nullity but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection, if he can waive it, it amounts to an irregularity, if he cannot it is a nullity'.

(20) The principle which, thereforee, emerges is that every illegality would not render a judgment a nullity. A directory provision can always be waived but a mandatory provision can be waived only if it is not enacted in public interest. In other words, violation of mandatory provision which is conceived in public interest would make the judgment/order void and a mere nullity.

(21) What is the nature of the rule embodied in Section 14(10) of 'the Act' Is it mandatory and based on grounds of public policy or the object of the legislature was only to afford protection to the individual litigant This would turn on the scope and object of the said provision.

(22) 'THE Act', as is clear from its preamble, has been enacted to provide 'for the control of rents and evictions and rates of hotels and lodging houses, and for the lease of vacant premises to Government in certain areas in the Union Territory of Delhi.' It was enacted in view of the shortage of accommodation and high rents demanded by the landlords. 'The strain of the last World War, Industrial Revolution, the large scale exodus of the working people to urban areas and the social and political changes brought in their wake social and political changes brought in their wake social problems of considerable magnitude and complexity and their concomitant evils. The country was faced with spiralling inflation, soaring cost of living, increasing urban population and scarcity of accommodation. Rack renting and large scale eviction of tenants tinder the guise of the ordinary law, exacerbated those conditions making the economic life of the community unstable and insecure. To tackle these problems and curb these evils, the legislatures of the States in India enacted Rent Control legislations'. (See Nagindas Ramdas v. Dalpatram & Others, : [1974]2SCR544 ). 'This is understandable where the city population swells and the city accommodation stagnates, the people suffocate for space and landlords 'Make hay' playing the game of 'each according to his ability to grab'.' (See SB. Naronah v. Prem Kumari Khanna. : [1980]1SCR281 Thus the main object of 'the Act' is to control and regulate rents and to afford protection to the tenants against the eviction except in the manner provided by 'the Act'. This is a beneficial and remedial piece of legislation. It has been enacted to render socio-economic justice to the public and is thus based on grounds of public policy.

(23) Section 14 of 'the Act' appears under the heading 'Protection of tenant against eviction'. Section 14(1) prohibits the eviction of a tenant except on grounds given in the proviso. Sub-section (2) to (11) of Section 14 of 'the Act' further prohibit the eviction even on the grounds contained in the proviso. These provisions do not deal with any personal benefit given to an individual but they deal with the public at large. This section is not confined to affording a party protection who may avail of it or not, as he pleases. The advantage conferred by these provisions, enacted for the public at large, thereforee, cannot be waived.

(24) Section 14(10) of 'the Act' is mandatory in nature. It says : 'No order for the recovery of possession of any premises shall be made on the ground specified in Clause (j) of the proviso to Sub-section (1), if ..........,'. It gives a mandate to the Controller. He has no discretion in the matter and is bound to make an order directing the tenant to repair the damage caused or to pay compensation. In the absence of such an order and its non-compliance by the tenant, the Controller is not competent to pass an order for eviction. The prohibition is absolute. In the present case the Controller failed in his duty to comply with this mandatory requirement. The order of eviction made in violation of these provisions was, thereforee, without jurisdiction, void and a nullity.

(25) In Waman Shriniwas Kini v. Ratilal Bhagwandas & Co., : AIR1959SC689 the .landlord claimed eviction of the tenant, inter alia, on the ground of the sub letting, i.e. under Section 13(1)(e) and 15 of the Bombay Rents, Hotel and lodging House Rates Control Act, 1947. Section 13(1)(e) provides : 'Notwithstanding anything contained in this Act (but subject to the provisions contained in Section 15) a landlord shall be entitled to recover possession of any premises if the court is satisfied........... ............... (e) that the tenant has. since the coming into operation of this Act, sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein'. Section 15 reads : 'Notwithstanding anything contained in any law it shall not be lawful after the coming into operation of this Act for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein'. The defense set up by the tenant was that the landlord had himself permitted him to sublet the premises and would be deemed to have waived the benefit of the provisions contained in Section 15. Rejecting this contention the Supreme Court held that the provisions of Section 15 were based on public policy and thereforee there could be no waiver of the benefit provided by the said provision.

(26) In Nagindas's case (supra) the Supreme Court held :

'SECTION 13 of the Delhi Rent Act starts with a non obstinate clause viz. 'Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favor of the landlord against any tenant.........'. Likewise, Section 10(1) of the Madras Rent Act starts with the clause 'a tenant shall not be evicted whether in execution of a decree of otherwise in accordance with the provisions of this Section or Sections 14 to 16.'

It will thus be seen that the Delhi Rent Act and the Madras Rent Act expressly forbid the Rent Court or the Tribunal from passing a decree or order of eviction on a ground which is not any of the grounds mentioned in the relevant sections of those statutes. Nevertheless, such a prohibitory mandate to the Rent Court that it shall not travel beyond the statutory grounds mentioned in Sections 12 and 13, and to the parties that they shall not contract out of those statutory grounds is inherent in the public policy built into the statute (Bombay Rent Act)'. The Supreme Court approved the decision of the Division Bench of Gujrat High Court in Shah Rasiklal Chunilal v. Sindhi Shyamlal Mulchand, (1971) 12 G L.R. 1012 that inspire of the fact that there was no express provisions in Bombay Rent Act prohibiting contracting out, such a prohibition would have to be read by implication in consistent with the public policy underlying this welfare measure.

(27) The Supreme Court has authority very held that an order of eviction based on consent of the parties, where there is no material before the court on the basis of which the court could be prima facie satisfied about the existence of a statutory ground, was void. (See Ferozi La Jam v. Man Mat and another, : AIR1970SC794 ).

(28) These decisions of the Supreme Court make it abundantly clear that the provisions contained in Section 14(10) of the Act were based on public policy and the advantage conferred by the said provisions could not be waived.

(29) PT. Raj Kishan, learned counsel for the landlady, in support of his contention that the violation of Section 14(10) was merely an illegality and did not make the order void, has relied on several judgments. None of the judgments, however, was under any Rent Act. This has already been held that every illegality would not render the judgment a nullity. The question depends if the violation was of a mandatory provision which has been conceived in public interest. The decisions relating to violation of other provisions, thereforee, are not of much help,

(30) In lt travail Mathai v. Varkey Varkey & Another, : [1964]1SCR495 the Supreme Court held 'Even assuming, that the suit was barred by time it is difficult to appreciate the contention of learned counsel that the decree can be treated as a nullity and Droned in subsequent litigation'. The- law of limitation is an adjective law. Rules of limitation are rules of procedure Limitation bars the remedy but does not destroy the right. The purpose of Section 3 of the Limitation Act is not to deprive a court of its jurisdiction. The Supreme Court in its judgment nowhere held that provisions contained in Section 3 of the Indian Limitation Act had been conceived in public interest.

(31) In Smt.Ujjam Bai v. State of Uttar Pradesh & another, AIR 1962 Sc 1621 it was held : 'Where a quasi judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion, whether it is wrong in law or in fact''. There is no quarrel so far as the principle laid down is concerned hut this principle does not help the landlady at all. The present case was not a case of a wrong decision on facts or law. It has not been held by the Addl. Controller that provisions contained in Section 14(10) were not attracted. The order was made ignoring the provisions of Section 14(10) altogether.

(32) In Ballabhadas Saligram v. Thakur Parmal Singh, : AIR1961MP36 a decree had been passed against the tenants some of whom were minors and the decree attained finality. The tenants, who were not minors, filed a civil suit offsetting aside the decree. It was held that the second suit was barred by Section 47, CP.C, This judgment has no application whatso ever.

(33) In Chaluvadi Balalah v. Central Government and the Union of India, : AIR1967AP51 it was held that the decree on the basis of an unregistered mortgage deed was not a nullity. This again has no relevancy so far as the present case is concerned.

(34) Panthalkunnummal Pokkutty's daughter Kunheema Umma v. Puth alath Balakrishnan Nair, : AIR1967Ker97 was a case of wrong interpret question of law and not a case of clear violation of law.

(35) The division bench decision of Rajasthan High Court in Anraj v. Bijairaj & others related to the bar of Section 44 of the Provincial Insolvency Act. 1920. It was held that 'defense under Section 44 is, to our mind, not different from a defense, say of limitation, or of rest judicata, or under Section 214 of the Indian Succession Act. Such a defense, if raised, will be decided by the Court where the suit is pending. If the 'decision is wrong, or if for some reason or other no decision is given as seems to be the case in the present case, the remedy of the person who complains against the decision is to file an appeal or revision or take such other action as the law may provide to correct the error, But he cannot say that the decree is a nullity in execution proceedings for there is no question involved of the inherent jurisdiction of the court to pass the decree'. This decision would not apply to the violation of mandatory provisions of 'the Act' where were based on public policy. For the sane reason the decisions in Gurbux Singh Inder Singh v. Brij Lal Chiranji Lal, AIR 1951 Pep 46 where a decree had been passed in spite of objection of Section 44 of the Provincial Insolvency Act and in C. Sriramamurthi v. Official Receiver, Krishna & others, AIR 1957 Ap 692 where there was violation of Section 28(2) of the Provincial Insolvency Act, are of no help to the landlady.

(36) The law laid down in Jalan Singh Nandlal v. Fida Hussain, 0043/1957 : AIR1957MP89 with respect, cannot be accepted as correct law in view of the decision of the Supreme Court in Smt. Kaushalya Devi v. K.L. Bansal, 1969 Rcj 152

(37) For all these reasons I hold that the Older dated October 25, 1978 made by the Addl, Controller in violation of Section 14(10) of 'the Act' was Without jurisdiction, void and a mere nullity.

(38) An order without jurisdiction or a void order is no order at all. It confers no right on the person in whose favor it presses to be. it in no way binds the person against Whom it is made. Such an order would be treated as a nullity whenever and wherever and for whatever purpose it is sought to be used or relied on as a valid order. Such an order was incapable of execution.

(39) The objector is in possession of the shop in dispute, though, of course, without having any independent title. He is sought to be dispossessed with the help of a void order. He is a party to the proceedings under Order 21 Rule 97, Civil Procedure Code . and had, thereforee, locus standi to challenge the validity of the order under Section 44 of the Evidence Act which permits a party to a proceeding to show that an order, which has been proved by the other party, was delivered by a court not competent to deliver it. This view finds support from the decision of the Bombay High Court in Shewa Lachha Banjar v. Bhawarilal : AIR1973Bom139 .

(40) It was then contended that on the death of the tenant an application for bringing his legal representatives on record was moved by the landlady. The objector ought to have raised the plea of the eviction order being a nullity in reply to the application but raised no such plea, and, thereforee, the plea was barred by rest judicata. This contention is without any merit for two reasons ; (1) no notice of this application was given to the objector who was apparently not concerned with this application; and (2) the said application was rejected by the Addl. Controller as having been not pressed on January 19, 1979. The question of rest judicata, thereforee, does not arise.

(41) In conclusion I accept the appeal, set aside the impugned order and instead, holding that the eviction order dated October 25, 1978, was a nullity dismiss the execution application. Parties are, however, left to bear their own costs throughout.


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