HIGH COURT OF MADHYA PRADESH, JABALPUR FIRST APPEAL NO.537 OF 199.Hafizullah, S/o Late Sheikh Barkatullah, Aged about 56 years, Occupation - Advocate, R/o H.No.828, Badi Omti, Jabalpur (M.P.) …. Appellant Versus 1. Shri Puran Chand Jain, S/o Late Sheikhar Chand Jain, Aged about 56 years.
2. Shri Inder Kumar Jain, S/o Late Sheikhar Chand Jain, Aged about 52 years R/o House No.458, Hanumantal Ward, Behind City Kotwali, Jabalpur …. Respondents Present : Hon. Shri Justice Krishn Kumar Lahoti, Acting C.J.Hon. Smt.Justice Vimla Jain Appellant present in person. Shri Ravish Agarwal, learned Senior Advocate with Shri Koustubh Jha, counsel for respondents. JUDGMENT
(12.7.2013) Per Krishn Kumar Lahoti, Acting Chief Justice : This appeal is directed under section 96 of the Code of Civil Procedure, 1908, assailing the judgment and decree dated 28.8.1999 passed by XIth Additional Judge to the Court of District Judge, Jabalpur in Civil Suit No.39-A/1999. 2 F.A.No.537/1999 Hafizullah Vs. Puran Chand Jain & another 2. By the aforesaid judgment and decree, a suit filed by the appellant for declaration that the judgment and decree passed in earlier Second Appeal No.813/1995 (Hafizullah and another Vs. Smt.Shikhar Chand Jain & others) dated 12.5.1997 be declared as null and void and a decree of eviction be granted in favour of the appellant was dismissed. The trial Court has dismissed the suit on the ground that it was not maintainable, the trial Court was not having jurisdiction to grant such a decree. On the aforesaid ground, the suit was dismissed. The trial Court further found that the judgment and decree passed in Second Appeal No.813/1995 dated 12.5.1997 was not against the settled principles of law and was not liable to be set aside. The appellant was not entitled for a decree of eviction under section 12(1)(f) of the M.P.Accommodation Control Act, 1961 (hereinafter referred to as 'Act' for short). The suit was also not maintainable under Order 2 Rule 2 of C.P.C.
3. The appellant has challenged this judgment and decree on following grounds :- (a) That the judgment and decree passed in second appeal by the High Court could have been set aside by the trial Court. The trial Court was having jurisdiction to entertain the suit and to grant a decree. It is also submitted that the judgment and decree passed by this Court in S.A.No.813/1995 was without jurisdiction and a decree be passed, in this regard, in favour of the appellant by this Court. (b) He has placed reliance to a series of decisions in support of his contention that a decree which was not passed in accordance with law, in the earlier suit could have been set aside in a subsequent suit. The judgment cited by the appellant are thus ; 3 F.A.No.537/1999 Hafizullah Vs. Puran Chand Jain & another Narmada Bachao Andolan Vs. State of Madhya Pradesh (AIR 201.SC 1989), Union of India Vs. Manik Lal Banerjee (AIR 200.SC 2844), State of U.P. and others Vs. Rekha Rani (AIR 201.SC 1893), N.R.Narayan Swamy Vs. B.Francis Jagan (AIR 200.SC 2469), Life Insurance Corporation of India Vs. India Automobiles and Co. & others [(1990) 4 SCC 286]. P.M.A.Metropolitan Vs. Moran Mar Marthoma (AIR 199.SC 2001), Fuljit Kaur Vs. State of Punjab (AIR 201.SC 1937), Y.Satyanarayan Reddy Vs. Mandal Revenue Officer, A.P. (AIR 201.SC 1440), S.Nagraj Vs. B.R.Vasudeva Murthy [(2010) 3 SCC 353].. It is submitted by Shri Hafizullah, who is appearing in person (he is a practising Advocate of this Court), that the earlier judgment is per in curiam, so the suit of the appellant deserves to be decreed with mesne profit.
4. To appreciate the aforesaid contention it would be appropriate if the facts, as are pleaded in the plaint, are referred in short. (a) The present suit was filed on 1.1.1998 before the trial Court for declaring that the finding in Second Appeal No.813/1995 decided on 12.5.1997 be declared as null and void ab initio and decree of eviction under section 12(1)(f) of the Act be granted in favour of the appellant for eviction and mesne profit. (b) That the plaintiff had also filed an earlier suit for eviction bearing no.147/88 before IXth Civil Judge Class-II Jabalpur under section 12(1)(f) of the Act against the tenant Late Shikhar Chand Jain. Late Shikhar Chand Jain had obtained the suit accommodation by registered lease deed dated 1.5.1968 for a period of 10 years. (c) The suit accommodation is known as “Qudrat Manzil”. 4 F.A.No.537/1999 Hafizullah Vs. Puran Chand Jain & another bearing Municipal no.667, 667/1 to 667/3 at ward no.22 Kotwali, Jabalpur. After the death of Shikhar Chand Jain the respondents had inherited tenancy rights and were paying rent as per the lease deed, to the plaintiff. (d) That during the pendency of earlier suit No.147-A/1988 the respondent Inder Kumar Jain had purchased a portion of the suit accommodation by registered sale deeds dated 2.2.1982 and 20.9.1982. These sale deeds were null and void on the principle of lis pendence. The trial Court in earlier suit had impleaded him as defendant no.3, as necessary and proper party. (e) The trial Court in civil suit no.147-A/1988 passed an order on 16.10.1985 that the aforesaid transaction had been taken place during the pendency of the suit and his rights shall not be looked into. These findings were not challenged by defendant Inder Kumar Jain before any higher forum. In civil suit no.147-A/ 1988 though the Court had found bonafide need of the plaintiff established for his profession of Advocate under section 12(1)(f) of the Act, but refused decree of eviction on the ground that Puran Chand Jain being the co-owner of the property, had purchased the part of the suit accommodation, so no decree could have been passed in the matter. The allegations of the appellant before the trial Court were that in Civil Suit No.147-A/1988 the findings recorded by the trial Court in order sheet dated 16.10.1985, 4.7.1989 and 10.5.1991 were not evaluated. Aggrieved by the judgment and decree in Civil Suit No.147- A/1988 the appellant herein had filed civil appeal before the XIIth Additional District Judge, Jabalpur registered as Civil Appeal No.61-A/1995. The appellate Court had also upheld the ground under section 12(1)(f) of the Act, but had refused the decree on the ground that it would cause inconvenience to other co-owners. 5 F.A.No.537/1999 Hafizullah Vs. Puran Chand Jain & another 5. Being aggrieved by the judgment and decree passed in Civil Appeal No.61-A/1995 dated 28.11.1995 the appellant herein had preferred Second Appeal before the High Court registered as S.A.No.813/1995. The High Court had also upheld the bonafide need of appellant, but dismissed the appeal on the ground which had prevailed to the Court below.
6. Against the judgment and decree passed in Second Appeal, an S.L.P.(C) bearing No.16299/1997 was filed before the Apex Court, which was dismissed by the Apex Court on 15.9.1997.
7. After the decision in Second Appeal, appellant herein had filed another suit seeking declaration that the judgment and decree passed in Second Appeal No.813/1995 were null and void on the following grounds :- (Para 6 of the plaint reads as under)
“6. On the above mentioned findings mentioned in para 5 of the plaint, the Hon'ble High Court dismissed the Second Appeal No.813/95 (Eight hundred thirteen upon ninety five) on 12/5/97 (Twelveth March Ninety seven) hence the plaintiff herewith file the present suit for declaration and eviction against the defendants on the following settled principles of law as stated as under : (I) That, the Hon'ble High Court over-looked the settled principles of law in eviction suit which are stated in Para-2 (two) of the plaint. (II) That the Hon'ble High Court over-looked the settled principles of law under section 52 of the Transfer of Property Act, which were considered by First Appellate Court in its judgment para-23 (Twenty-three) as well as para no.44 (Fourty four) of its judgment, by holding that the defendant No.3 (three) in the present suit being a lis pendence transferee is bounded by Eviction decree. (III) That the Hon'ble High Court over-looked the law of ESTOPPEL of tenant under tenancy law. 6 F.A.No.537/1999 Hafizullah Vs. Puran Chand Jain & another (IV) That, the Hon'ble High Court over-looked the settled principles of law, that the co-owners if he or she raise an objection shall go for partition. (V) That, the Hon'ble High Court over-looked the settled principles of law that Shri Inder Kumar Jain defendant No.3 (three), is an OUSTER, his right have been extinguished being an OUSTER, by passage of time, he being legal heirs of Late Sheikhar Chand Jain step into shoes of his father as a tenant. (VI) That, the Hon'ble High Court over-looked the settled principle of law that the sale-deed Ex.D-13 dated 20/9/82 (Twenty September Eighty two) is itself null and void ab initio document.”
8. The cause of action which was shown in the suit, had arisen on 12.5.1997 when the judgment and decree were passed in S.A.No.813/1995. On the aforesaid ground, following reliefs were prayed in the plaint :- “(I) Pass a decree for eviction according to Plaint Map under section 12(1)(f) of the Act, while setting aside the findings of Hon'ble High Court passed in Second Appeal No.813/95 on 12/5/97 being itself Null and Void ab initio not binding on plaintiff by setting aside judgment and decree upon settled principles of law in eviction suit as stated in para-6 of the plaint. (II) Any other relief deem to be fit shall also be decreed with cost of the suit.”
9. The respondents had contested the suit by raising preliminary objection and written statement. In nut shell the objections which were raised by the respondents before the trial Court were as under :- (1) That the trial Court was having no power to set aside the judgment and decree passed in earlier round of litigation. As the matter travelled upto High Court and the trial Court was inferior Court to the High Court and trial Court was having no jurisdiction to try the suit. (2) That the judgment and decree passed in Second Appeal 7 F.A.No.537/1999 Hafizullah Vs. Puran Chand Jain & another No.813/1995 dated 12.5.1997 could have been challenged before the Apex Court or by way of review before the High Court, but for the same relief another suit was not maintainable. (3) That the findings and reasonings given by the Courts though may be wrong, but for that purpose another suit was not maintainable. Apart from preliminary objection the case was also contested by the respondents on merits. It was submitted in para 1(c) of the reply that Inder Kumar Jain has become owner in the portion purchased by him, being the co-owner the decree of eviction cannot be passed until and unless his share is defined and a partition is effected in this regard. That the grounds which were raised in the suit could have been raised in the earlier round of litigation and if those grounds were not raised or raised and rejected, those could not have been re-agitated by way of filing of the suit. On the aforesaid ground and another grounds, the suit was contested.
10. The trial Court framed the issues and after hearing arguments of the parties on the issues, dismissed the suit by impugned judgment and decree, which is under challenge in this appeal.
11. To appreciate the contentions of the appellant, first important and foremost question which requires our consideration is whether the civil suit filed for the aforesaid reliefs was maintainable. (i) The appellant herein had filed earlier Civil Suit bearing No.147-A/1988 for ejectment in respect of the suit house of which details have been given earlier. The suit house was let out to Late Shikharchand Jain @ Rs.150/- per month for non-residential 8 F.A.No.537/1999 Hafizullah Vs. Puran Chand Jain & another purpose, but the tenant was permitted to use the second storey for residential purpose. The suit house was let out by the then co-owners, namely Barkatullah, Amna Bi, Jalaluddin and Hamida Bi. (ii) The original owner of suit house was Sheikh Gullu. After his death, Barkatullah and Shamshuddin had succeeded to his property. After death of Shamshuddin his widow Amna Bi, his son Jalaluddin and his daughter Hamida Bi had inherited his share in the property. Thus, the aforesaid mentioned persons were co owners of the suit property. The suit house was let out on 1.5.1968 to Late Shikher Chand Jain. (iii) After the death of Barkatullah, his three sons Hafizullah (present plaintiff), Habibullah, Inayatullah, his wife Rafiquan Bi and his daughter Sona Begum had inherited the suit property to the extent of share of Barkatullah as per Muslim Law. (iv) Initially Civil Suit No.147-A/1988 was filed by Hafizullah, Habibullah, Inayatullah, Rafiquan Bi, Smt.Sona Bai, Jalaluddin, Smt.Begum Bi wife of Jalaluddin and Smt.Hamida Bi. The original defendants were Shikhar Chand Jain and Balaprasad. Subsequently, the plaint of C.S.No.147-A/1988 was amended. The names of Habibullah, Inayatullah, Rafiquan Bi, Smt.Sona Bai, Jalaluddin and Smt.Begam Bi were deleted from the array of plaintiffs. Only two plaintiffs Hafizullah and Smt.Hamida Begum had continued the suit. Jalaluddin was transposed as defendant no.4. So far as Habibullah, Inayatullah and Rafiquan Bi were concerned, it was claimed that by will dated 12.2.1975 Barkatullah bequeathed his share in the property to Hafizullah. All the heirs had accepted the will, so their names were deleted from the array of plaintiffs. (v) During the pendency of Civil Suit No.147-A/1988 the defendant no.1 Shikhar Chand Jain had died. His wife Champabai 9 F.A.No.537/1999 Hafizullah Vs. Puran Chand Jain & another and his son Puran Chand Jain were brought on record. The defendant no.2 had also died and his wife and son Krishna Kumar were brought on record. Respondent Inder Kumar Jain was brought on record as legal heir of Late Shikhar Chand Jain. Inder Kumar Jain had also acquired the interest in the suit property by virtue of 2 sale deeds executed by Begum Bi and Smt.Sona Bai respectively by sale deeds dated 2.2.1982 and 20.9.1982. These sale deeds were challenged as void in Civil Suit No.147-A/1988. The relief which was claimed in Civil Suit No.147-A/1988 was that the suit house was bonafide required for the office and residence of plaintiff Hafizullah. (vi) The trial Court had held that the plaintiff and Jalaluddin were not sole owner and landlord of the suit house and the plaintiff no.1 alone was not entitled to get a decree of eviction. It was also found that the suit house was let out to Shikhar Chand Jain for business purpose and second storey was also let out for business purpose. The suit house was required bonafide by plaintiff no.1 Hafizullah for his profession and he was having no alternative accommodation of his own for this purpose. The requirement of plaintiff no.1 in respect of second storey, for his residence, was denied as he was having an alternative accommodation of his own in the city of Jabalpur. Though the suit was also filed under section 12(1)(c), (d) and (e) of the Act, but these grounds were negatived by the trial Court. (vii) Against the judgment and decree of the trial Court a Civil Appeal was filed. During the pendency of appeal Jalaluddin had died and his legal representatives were brought on record. The appellate Court after considering the merits of the case affirmed the finding of the trial Court that the plaintiff no.1 had established his bonafide need in respect of ground floor and first floor. The requirement for residence was rejected. The appellate Court held 10 F.A.No.537/1999 Hafizullah Vs. Puran Chand Jain & another that plaintiff Hafizullah had acquired interest in the share of Barkatullah, after his death. His legal heirs Habibullah, Inayatullah, Rafiquan Bi, and Smt.Sona Bai, had inherited the property as per Muslim law. The other co-owners were also legal heirs of Shamshuddin. The defendant no.4 and his wife had transferred their respective share in the suit property to Inder Kumar Jain, defendant no.5 by sale deed dates 2.2.1982 and 20.9.1982. Thus the status of Inder Kumar Jain was that of co owner along with plaintiff and others and for this reason it was held that the trial Court had rightly declined a decree for eviction of defendant. (viii) Against the judgment and decree passed in Civil Appeal No.61-A/1995 dated 30.7.1991, a Second Appeal bearing No.813/1995 was filed by the appellant and others which was admitted on 15.1.1996. The learned Single Judge after considering the controversy dismissed the appeal with following order :-
“25. It is obvious that the plaintiffs face a similar position here with a rider that the property is not partitioned. The defendant No.5 has become a co-owner, albeit, of undivided portion of the house. How can be be evicted ?. His share qua sole owner has not been specified. It would be most unjust and inequitable to throw out a co-owner from the possession of the suit accommodation merely because as a tenant he had purchased the share of a co-owner. His legal right to retain possession till partition qua co-owner cannot be whittled down. The Supreme Court case - Sarvinder Singh V. Dalip Singh and others reported in 1977 (1) MPLJ 32 (supra) relied upon by the appellants, is not applicable to the facts of this case. It is not necessary to deal with other decisions cited by the learned counsel for the appellants in view of the decision in Sk.Sattar Sk.Mohd. Choudhary Vs. Gundappa Amabadas (1996) 6 SCC 37.(supra). In this case, the cases of Mohar Singh, AIR 198.SC 136.and Badri Narain Jha, AIR 195.SC 18.(supra) were considered and distinguished. 11 F.A.No.537/1999 Hafizullah Vs. Puran Chand Jain & another 26. The result of the aforesaid discussion is that the Court below rightly held that the suit filed by plaintiffs was not maintainable. The judgment and decree passed by the Court below are confirmed. The suit filed by the appellants is dismissed. No costs.”
. This judgment and decree passed in second appeal is under challenge in this appeal.
12. It will be pertinent to mention here that against the judgment and decree in Second Appeal No.813/1995 an S.L.P. (Civil) No.16299/1997 was filed before the Apex Court, however it was dismissed on 15.9.1997.
13. not in the light of the aforesaid factual position the contention of the appellant that the suit as filed by the appellant was maintainable, may be looked into. The judgments relied on by the appellant relates to a decree where it was either passed on fraud or was passed by a Court having no jurisdiction. Though a plethora of judgments were cited by the appellant, but in none of the judgment it has been held that to set aside a finding in the previous judgment, (may be wrong on merits), a subsequent suit can be filed. Though a subsequent suit can be filed where a judgment and decree passed in earlier suit is without jurisdiction or the Court was having inherent lack of jurisdiction, but if the suit has been decided by a competent Court of jurisdiction, merely the findings recorded in the earlier suit were not suitable to the plaintiff or it can be stretched to the extent that the aforesaid findings were not correct, even then no suit could have been filed for setting aside the aforesaid finding recorded in the earlier suit. Only in a case where the decree was passed by a Court having no jurisdiction or it was passed by playing fraud or on settled 12 F.A.No.537/1999 Hafizullah Vs. Puran Chand Jain & another principles of law, earlier decree can be set aside, but in absence of aforesaid, a subsequent judgment and decree cannot be set aside merely on the ground that the earlier judgment was not correct. In nutshell the arguments advanced by the appellant were that in the earlier judgment, in which a suit for eviction was filed the High Court erred in recording a finding in respect of title. The question in respect of title though was not directly raised by the appellant, but in the facts of the case, the Court was bound to decide the aforesaid dispute because it was raised and pressed in the earlier round of litigation. The earlier suit was filed before the competent Court of jurisdiction, while deciding the question of tenancy the Court was bound to decide the aforesaid issue in respect of ownership of plaintiff or his right to get evicted the co owner. The learned Single Judge in Second Appeal No.813/1995 had very specifically held that the defendant Inder Kumar Jain was co-owner of the suit property. Until and unless in the undivided property his share is specified or share of the plaintiff is specified, the plaintiff could not throw out a co-owner from the suit accommodation merely because as a tenant he had purchased the share of a co-owner. His legal right to retain the possession till partition against owner cannot be whittled down.
14. It would not be appropriate to burden this judgment by referring the aforesaid judgments in which nowhere it has been held that if in the previous suit, which was filed before a competent Court of jurisdiction, the plaintiff remained unsuccessful then he can challenge the finding of previous suit in another suit, in absence of which it is not necessary for this Court to refer the judgments, which are cited by the appellant (as quoted hereinabove) in support of his contention that in a 13 F.A.No.537/1999 Hafizullah Vs. Puran Chand Jain & another subsequent suit the Civil Court can look into the findings of previous suit and to hold that judgment and decree were null and void.
15. In this appeal appellant has filed an application seeking amendment in the plaint by claiming mesne profit. As the suit itself has been found to be not maintainable, it is not necessary for this Court to consider the application and permit the appellant to amend pleadings. However the appellant in a subsequent suit, for partition, eviction can claim the mesne profit against the respondent.
16. The Apex Court in Sk.Sattar Sk.Mohd. Choudhari Vs. Gundappa Amabadas Bukate [(1996) 6 SCC 373]. considering the similar position held that where premises jointly owned by several persons, then a co-owner cannot alone maintain a suit for eviction of tenant inducted on behalf of all the co-owners, he can do so if pursuant to a partition by metes and bound effected amongst all the co-owners, the said premises falls to his share.
17. In the present case, Puran Chand Jain after purchase of the property had become co-owner of the property and until and unless the joint property is partitioned and exclusive share falls to the plaintiff, or share of Puran Chand is defined and separated, only then from that share the plaintiff can evict tenant because except the share which would fall to Puran Chand Jain, he would be a tenant of the remaining portion and from that he can be evicted. But all this can be done only after partition of the premises and until and unless a partition took place, he will remain as co-owner of the accommodation and cannot be evicted. The aforesaid judgment of the Apex Court in Sk.Sattar 14 F.A.No.537/1999 Hafizullah Vs. Puran Chand Jain & another Sk.Mohd.Choudhari (supra) still holds the field. See M/s Karta Ram Rameshwar Dass Vs. Ram Bilas and others [(2006) 1 SCC 125]..
18. In view of the settled law, the findings of earlier suit were in accordance with law and the S.L.P. has already been dismissed, so the suit filed by the appellant for declaring the aforesaid judgment and decree as null and void was misconceived.
19. The Apex Court in Rafique Bibi (Dead) by Lrs Vs. Sayed Waliuddin (Dead) by Lrs and others [(2004) 1 SCC 287]. has considered the position and has laid down the law in respect of the distinction between legal decree and null/void decree. The Apex Court considering the law held that what is “void”. has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity. A distinction exists between a decree passed by a court having no jurisdiction, consequently decree being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. Two things must be clearly borne in mind. Firstly, the court can invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be “a nullity”. and “void”. but these terms have no absolute sense; their meaning is relative, depending upon the court's willingness to grant relief in any particular situation. If this principle of illegal relativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results. Secondly, there is a 15 F.A.No.537/1999 Hafizullah Vs. Puran Chand Jain & another distinction between mere administrative orders and the decrees of courts, especially a superior court. The order of a superior court such as the High Court, must always be obeyed, no matter what flaws it may be thought to contain. Thus a party who disobeys a High Court injunction is punishable for contempt of court even though it was granted in proceedings deemed to have been irrevocably, abandoned, owing to the expiry of a time-limit. Accepting it at its face value, in the eye of the law, the challenge by the appellant tenants seeks to expose a procedural irregularity which may, at best, result in the decree being termed as an “illegal decree”., but that in itself would not amount to branding the decree as “without jurisdiction”. or “a nullity”..
20. In view of settled law the earlier judgment and decree passed in the suit of appellant itself is not a decree by a Court having no jurisdiction in the matter and cannot be termed as null and void decree. The remedy available to the appellant was by way of challenging the decree before the Apex Court or seeking a review of the order, if the appellant was of the view that such judgment and decree was otherwise not legal, but remained unsuccessful in the Supreme Court in S.L.P., another suit for such an exercise was apparently not maintainable. If such recourse is permitted then there will be no end of the litigation and every unsuccessful litigant can assail the previous judgment and decree on the aforesaid ground.
21. In view of aforesaid, we are of the opinion that the judgment and decree passed by the Court below are in accordance with law. The recourse available to the appellant had already been specified in S.A.No.813/1995 and we have reiterated the same and after partition of the suit accommodation, the 16 F.A.No.537/1999 Hafizullah Vs. Puran Chand Jain & another appellant can very well file a suit for eviction of the respondents for the accommodation which will fall to his share.
22. In view of aforesaid, this appeal is found without merit and is accordingly dismissed with no order as to costs. (Krishn Kumar Lahoti) (Smt.Vimla Jain) Acting Chief Justice Judge .7.2013 .7.2013 M.