Smt Devi Vs. Shri Sajjan Veer Chand - Court Judgment

SooperKanoon Citationsooperkanoon.com/768894
SubjectTenancy
CourtRajasthan High Court
Decided OnApr-26-1999
Case NumberS.B. CiviL Revision Petition No. 380 of 1999
Judge R.R. Yadav, J.
Reported in1999(3)WLC126; 1999(1)WLN614
AppellantSmt Devi
RespondentShri Sajjan Veer Chand
DispositionPetition dismissed
Cases ReferredKiran Singh and Ors. v. Chaman Paswan and Ors.
Excerpt:
rajasthan premises (control of rent & eviction) act, 1950 - sections 13(1)(h), 15--civil procedure code, 1908--section 47--execution--decree for eviction on ground of bona fide and reasonable necessity of landlord--execution--tenant cannot question in executing court the reasonable and bona fide necessity of the landlord--if the landlord fails to utilise the premises for purposes for which decree was passed, the remedy lies under section 15 of the act of 1950 and not under section 47, cpc.;revision petition dismissed - - 17 of 1950) clearly provides that no court shall pass any decree or make any order in favour of a land lord whether in execution of a decree or otherwise evicting the tenant, so long as he is ready and willing to pay rent, unless any of the grounds enumerated under clauses (a) to (1) of sub-section (1) of section 13 of act no. 17 of 1950 are satisfied. 17 of 1950 cannot be questioned before the executing court but it can be raised only before the court which passed the decree in case it is proved that the landlord failed to utilise the premises for the use or purpose for which such eviction suit had been decreed within two months of obtaining possession thereof or in the case of premises let out for residential purposes at any time within one year and in the case of premises let out for commercial or business purposes at any time within five years of obtaining possession lets whole or any part thereof to any person other than the evicted tenant not otherwise. now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. it is a fundamental principle well-established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could 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.r.r. yadav, j.1. the present revision petition has been filed against the order dated 7.4.1999 passed by the learned additional civil judge (junior division) no. 5, jodhpur in execution misc. case no. 5/99 rejecting the application moved under section 47 cpc.2. it is urged by the learned counsel for the revisionist mr. r.r. chacha that sub-section (1) of section 13 of the rajasthan premises (control of rent and eviction) act 1950 (hereinafter referred to as act no. 17 of 1950) clearly provides that no court shall pass any decree or make any order in favour of a land lord whether in execution of a decree or otherwise evicting the tenant, so long as he is ready and willing to pay rent, unless any of the grounds enumerated under clauses (a) to (1) of sub-section (1) of section 13 of act no. 17 of 1950 are satisfied.3. next limb of the aforesaid argument of the learned counsel for the revisionist is that the ground for eviction is not only required to be in existence at the time of filing of the suit but must continue to exist upto the date of execution of a decree. a decree passed under clause (h) of sub-section (1) of section 13 of act. no. 17 of 1950 becomes in executable i.e. becomes nonest if the tenant is able to show even at the time of execution that reasonable and bona fide requirement of land lord has ceased to exist after passing the decree. in support of his aforesaid contention he placed reliance on a decision rendered by the learned single judge of this court in the case of rakesh gupta v. ahmed farooq, reported in 1992 (2) rlw 398 wherein it is ruled that where a decree of ejectment has been passed on the ground that the plaintiff land lord required the suit premises reasonably and bonafidely for his own use then such ground for eviction is not only required to be in existence at the time of filing of the suit but must continue exist until decree is executed or tenant is actually evicted. a decree of eviction passed on aforesaid ground cannot be executed if the tenant is able to show even at the time of execution that such requirement has ceased to exist since passing of the decree.4. with all respect at my command, i am not able to subscribe the interpretation taken by the learned single judge of this court in the case of rakesh gupta (supra) for the reason that while interpreting non-obstante sub-section (1) of section 13 of act no. 17 of 1950, the following mandatory provisions envisaged under section 15 of act no. 17 of 1950 escaped the notice of the learned single judge which read thus:15. restoration of possession to evicted tenant- where a decree for eviction of any premises has been passed by the court against a tenant on any of the grounds specified in clause (h) of sub-section (1) of section 13 and landlord fails to utlise the premises to the use or purpose for which such eviction shall have been decreed within two months of obtaining possession thereof or in the case of premises let out for residential purpose, at any time, within one year and in the case of premises let out for commercial or business purpose, at any time, within five years of obtaining possession, lets the whole or any part thereof to any person other than the evicted tenant, the court which passed the decree, may on the application of the evicted tenant place him in possession of the premises.5. i am of the view that if the mandatory provisions of section 15 of act no. 17 of 1950 would have been brought to the notice of the court while deciding case of rakesh gupta (supra), the interpretation of sub-section (1) of section 13 of act no. 17 of 1950 would have been otherwise. i have no hesitation to hold that a decree passed against a tenant on any of the grounds specified in clause (h) of sub-section (1) of section 13 of act no. 17 of 1950 cannot be questioned before the executing court but it can be raised only before the court which passed the decree in case it is proved that the landlord failed to utilise the premises for the use or purpose for which such eviction suit had been decreed within two months of obtaining possession thereof or in the case of premises let out for residential purposes at any time within one year and in the case of premises let out for commercial or business purposes at any time within five years of obtaining possession lets whole or any part thereof to any person other than the evicted tenant not otherwise.6. thus, in nut-shell the question of restoration of possession to an evicted tenant on the basis of a decree obtained on any of the grounds specified under clause (h) of sub-section (1) of section 13 could arise only after eviction of such tenant by executing court not prior to its execution. in my humble opinion, if the sub-section (1) of section 13 of act no. 17 of 1950 is interpreted as has been interpreted in the case of rakesh gupta (supra), it will lead to grotesque result against the settled principle of law to the effect that the executing court cannot go behind the decree.7. indisputable, the court which passed the decree in the present case was a competent court to pass it and there was no inherent lack of jurisdiction in it. the only ground urged before me is that if a decree of ejectment has been passed on the ground that the plaintiff landlord required the suit premises reasonably and bonafide as specified under clause (h) of sub-section (1) of section 13 of act no. 17 of 1950 then such ground for eviction is not only required to be in existence at the time of filing of the suit but it must continue to exist until decree is executed or tenant is actually evicted. in my opinion, this argument tantamount to questioning the finding of reasonable and bona fide necessity of the plaintiff landlord, on basis of which the decree has been passed, which is impermissible to be canvassed before the executing court. however, the aforesaid argument can be canvassed only in appeal from the decree. here, in the present case, the court passing the decree has considered the material on record and arrived at a finding that the need of the landlord is reasonable and bona fide and as such the tenant is liable to be evicted. the existence of the aforesaid finding is itself sufficient to proceed with execution of the decree and the executing court cannot be permitted to go beyond the aforesaid finding in order to ascertain its correctness. to my mind, the executing court cannot go behind the decree in order to ascertained whether the decree has been passed correctly or not.8. in the present facts and circumstances of the case, i have no hesitation to hold that the executing court cannot alter the relief granted by the decree. it cannot add any word in the decree and the decree has to be executed without any addition or alteration either on the ground of equity or on the ground of morality. however, if the decree is a nullity, the executing court can entertain an objection that the decree is a nullity and can refuse to execute the decree. by doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void cannot said to be a valid, executable decree. thus the only valid ground to challenge the validity of a eviction decree passed on any of the grounds enumerated under clauses (a) to (1) of sub-section (1) of section 13 of act no. 17 of 1950 in execution proceedings is that the court which passed the decree was lacking inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit was instituted or decree passed, or some such other grounds which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it. i am fortified in taking the aforesaid view from a decision rendered by the supreme court in the case of hira lal patni v. sri kali nath reported in : [1962]2scr747 where their lordships of the supreme court laid down as follows:the validity of a decree can be challenged in executing proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it.9. the aforesaid principle again came up for consideration before the apex court in the case of sundar doss v. ram prakash reported in : [1977]3scr60 wherein it has been held which reads thus:now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. but there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. its nullity can be set up whenever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. the executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. by doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all.10. the aforesaid two decisions rendered by the apex court in the case of hira lal patni (supra) and in the case of sundar dass (supra) are in continuation of the proposition of law propounded by the supreme court in the case of kiran singh and ors. v. chaman paswan and ors. reported in : [1955]1scr117 , which reads thus:it is a fundamental principle well-established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could 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. a defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties.11. thus, in the present case, the executing court has committed no jurisdictional error in dismissing the application moved by the tenant revisionist under section 47 cpc, questioning in her application the finding of reasonable and bona fide necessity of land lord non-petitioner recorded by the court, passing the decree of eviction after satisfying itself about the existence of the grounds specified in clause (h) of sub-section (1) of section 13 of act no. 17 of 1950.12. as a result of aforementioned discussion, the instant revision petition has no substance and it is hereby dismissed in limine.
Judgment:

R.R. Yadav, J.

1. The present revision petition has been filed against the order dated 7.4.1999 passed by the learned Additional Civil Judge (Junior Division) No. 5, Jodhpur in Execution Misc. Case No. 5/99 rejecting the application moved under Section 47 CPC.

2. It is urged by the learned Counsel for the revisionist Mr. R.R. Chacha that Sub-section (1) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 (hereinafter referred to as Act No. 17 of 1950) clearly provides that no Court shall pass any decree or make any order in favour of a land lord whether in execution of a decree or otherwise evicting the tenant, so long as he is ready and willing to pay rent, unless any of the grounds enumerated under Clauses (a) to (1) of Sub-section (1) of Section 13 of Act No. 17 of 1950 are satisfied.

3. Next limb of the aforesaid argument of the learned Counsel for the revisionist is that the ground for eviction is not only required to be in existence at the time of filing of the suit but must continue to exist upto the date of execution of a decree. A decree passed under Clause (h) of Sub-section (1) of Section 13 of Act. No. 17 of 1950 becomes in executable i.e. becomes nonest if the tenant is able to show even at the time of execution that reasonable and bona fide requirement of land lord has ceased to exist after passing the decree. In support of his aforesaid contention he placed reliance on a decision rendered by the learned Single Judge of this Court in the case of Rakesh Gupta v. Ahmed Farooq, reported in 1992 (2) RLW 398 wherein it is ruled that where a decree of ejectment has been passed on the ground that the plaintiff land lord required the suit premises reasonably and bonafidely for his own use then such ground for eviction is not only required to be in existence at the time of filing of the suit but must continue exist until decree is executed or tenant is actually evicted. A decree of eviction passed on aforesaid ground cannot be executed if the tenant is able to show even at the time of execution that such requirement has ceased to exist since passing of the decree.

4. With all respect at my command, I am not able to subscribe the interpretation taken by the learned Single Judge of this Court in the case of Rakesh Gupta (supra) for the reason that while interpreting non-obstante Sub-section (1) of Section 13 of Act No. 17 of 1950, the following mandatory provisions envisaged under Section 15 of Act No. 17 of 1950 escaped the notice of the learned Single Judge which read thus:

15. Restoration of possession to evicted tenant- Where a decree for eviction of any premises has been passed by the court against a tenant on any of the grounds specified in Clause (h) of Sub-section (1) of Section 13 and landlord fails to utlise the premises to the use or purpose for which such eviction shall have been decreed within two months of obtaining possession thereof or in the case of premises let out for residential purpose, at any time, within one year and in the case of premises let out for commercial or business purpose, at any time, within five years of obtaining possession, lets the whole or any part thereof to any person other than the evicted tenant, the court which passed the decree, may on the application of the evicted tenant place him in possession of the premises.

5. I am of the view that if the mandatory provisions of Section 15 of Act No. 17 of 1950 would have been brought to the notice of the Court while deciding case of Rakesh Gupta (supra), the interpretation of Sub-section (1) of Section 13 of Act No. 17 of 1950 would have been otherwise. I have no hesitation to hold that a decree passed against a tenant on any of the grounds specified in Clause (h) of Sub-section (1) of Section 13 of Act No. 17 of 1950 cannot be questioned before the executing court but it can be raised only before the court which passed the decree in case it is proved that the landlord failed to utilise the premises for the use or purpose for which such eviction suit had been decreed within two months of obtaining possession thereof or in the case of premises let out for residential purposes at any time within one year and in the case of premises let out for commercial or business purposes at any time within five years of obtaining possession lets whole or any part thereof to any person other than the evicted tenant not otherwise.

6. Thus, in nut-shell the question of restoration of possession to an evicted tenant on the basis of a decree obtained on any of the grounds specified under Clause (h) of Sub-section (1) of Section 13 could arise only after eviction of such tenant by executing court not prior to its execution. In my humble opinion, if the Sub-section (1) of Section 13 of Act No. 17 of 1950 is interpreted as has been interpreted in the case of Rakesh Gupta (supra), it will lead to grotesque result against the settled principle of law to the effect that the executing court cannot go behind the decree.

7. Indisputable, the Court which passed the decree in the present case was a competent Court to pass it and there was no inherent lack of jurisdiction in it. The only ground urged before me is that if a decree of ejectment has been passed on the ground that the plaintiff landlord required the suit premises reasonably and bonafide as specified under Clause (h) of Sub-section (1) of Section 13 of Act No. 17 of 1950 then such ground for eviction is not only required to be in existence at the time of filing of the suit but it must continue to exist until decree is executed or tenant is actually evicted. In my opinion, this argument tantamount to questioning the finding of reasonable and bona fide necessity of the plaintiff landlord, on basis of which the decree has been passed, which is impermissible to be canvassed before the executing court. However, the aforesaid argument can be canvassed only in appeal from the decree. Here, in the present case, the Court passing the decree has considered the material on record and arrived at a finding that the need of the landlord is reasonable and bona fide and as such the tenant is liable to be evicted. The existence of the aforesaid finding is itself sufficient to proceed with execution of the decree and the executing court cannot be permitted to go beyond the aforesaid finding in order to ascertain its correctness. To my mind, the executing court cannot go behind the decree in order to ascertained whether the decree has been passed correctly or not.

8. In the present facts and circumstances of the case, I have no hesitation to hold that the executing court cannot alter the relief granted by the decree. It cannot add any word in the decree and the decree has to be executed without any addition or alteration either on the ground of equity or on the ground of morality. However, if the decree is a nullity, the executing court can entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void cannot said to be a valid, executable decree. Thus the only valid ground to challenge the validity of a eviction decree passed on any of the grounds enumerated under Clauses (a) to (1) of Sub-section (1) of Section 13 of Act No. 17 of 1950 in execution proceedings is that the Court which passed the decree was lacking inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit was instituted or decree passed, or some such other grounds which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it. I am fortified in taking the aforesaid view from a decision rendered by the Supreme Court in the case of Hira Lal Patni v. Sri Kali Nath reported in : [1962]2SCR747 where their Lordships of the Supreme Court laid down as follows:

The validity of a decree can be challenged in executing proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it.

9. The aforesaid principle again came up for consideration before the Apex Court in the case of Sundar Doss v. Ram Prakash reported in : [1977]3SCR60 wherein it has been held which reads thus:

Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all.

10. The aforesaid two decisions rendered by the Apex Court in the case of Hira Lal Patni (supra) and in the case of Sundar Dass (supra) are in continuation of the proposition of law propounded by the Supreme Court in the case of Kiran Singh and Ors. v. Chaman Paswan and Ors. reported in : [1955]1SCR117 , which reads thus:

It is a fundamental principle well-established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could 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. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.

11. Thus, in the present case, the executing court has committed no jurisdictional error in dismissing the application moved by the tenant revisionist under Section 47 CPC, questioning in her application the finding of reasonable and bona fide necessity of land lord non-petitioner recorded by the Court, passing the decree of eviction after satisfying itself about the existence of the grounds specified in Clause (h) of Sub-section (1) of Section 13 of Act No. 17 of 1950.

12. As a result of aforementioned discussion, the instant revision petition has no substance and it is hereby dismissed in limine.