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Delhi High CourtIndian Cases

Kedar Nath Kohli vs Sardual Singh And Anr. on 22 October 2003

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Delhi High Court
Kedar Nath Kohli vs Sardual Singh And Anr. on 22 October, 2003
Equivalent citations: 2003VIIIAD(DELHI)313, 107(2003)DLT577, 2004(72)DRJ36
Author: Dalveer Bhandari
Bench: Dalveer Bhandari, H.R. Malhotra
JUDGMENT

Dalveer Bhandari, J.

1. This appeal is directed against the judgment and decree dated 2nd November, 1985 passed by the learned Sub Judge, Delhi in Suit No.17/81.

2. Brief facts according to the appellant are as under:

3. The appellant’s father, Shri Mehar Chand Kohli, purchased two plots, plot Nos.22 and 27,(new municipal number is 1443) at Wazir Nagar, Kotla Mubarakpur, New Delhi. The registered sale deeds in respect of both these plots are in the name of the appellants’ father which were Ex. 12 & 13 in Suit No.303/69 (Mehar Chand Kohli vs. M/s Narang Overseas Ltd. & Ors.).

4. On 1.8.1967 vacant possession of both these plots were given to M/s Narang Overseas Pvt. Ltd. by executing a lease deed for a period of one year on a monthly rent of Rs.60/-. The tenancy which was limited for a period of one year came to end by efflux of time. In terms of the rent agreement one month’s notice was given to M/s. Narang Overseas Pvt. Ltd. requiring them to vacate the suit premises and hand over vacant possession of the plots to the appellant. M/s. Narang Overseas Pvt. Ltd. did not hand over the possession of the plots to the appellant and instead subletted, assigned and parted with possession of the plots in favor of Sardul Singh & Balwant Singh and allowed them to occupy the suit premises illegally and unauthorisedly. Ultimately, appellant’s father filed a suit for recovery before the trial court against M/s Narang Overseas Pvt. Ltd., Sardul Singh, Smt.Raja Rani and Baldev Singh as defendants.

5. The said suit, Suit No.03/69, was contested by respondent M/s Narang Overseas Pvt. Ltd. It was submitted in the written statement that the premises was let out to defendant No.1 with the structure of building standing thereon and, therefore, the defendant can be evicted only under the Rent Restriction Act, 1958. It was also submitted that the suit filed by the appellant before the trial court was pre-mature as the lease was still subsisting. According to M/s. Narang Overseas half of plot No.27 and full plot No.22 were let out but it has been denied that they had anything to do with the portion of plot No.27 which is in the occupation of other defendants, i.e., defendant Nos.2 to 4 in the suit (respondents herein).

6. In a separate written statement filed by defendant No.4 it was stated that the appellant is not the owner of the premises in dispute and suit filed by him is not maintainable. It was also stated that defendant No.4 purchased the said property from Dharam Pal and handed over possession of the plot to defendant No.2 who has constructed structure thereon. Similarly, defendant No.2 in the suit also denied the title of the appellant (plaintiff in the suit). The trial court after recording the evidence and framing of issues decreed the plaintiff’s suit for possession against defendant No.1, M/s Narang Overseas Pvt. Ltd. with costs. The trial court also directed that the appellant may recover possession by demolishing the super-structure therein for which costs will be borne by M/s. Narang Overseas.

7. The trial court also came to the conclusion that defendant Nos.2 to 4 have not been shown to be in possession of plot No.22 and half of plot No.27. Against the said judgment of Shri V.S.Aggarwal, the appeal filed by M/s Narang Overseas, RSA No.8/72, was dismissed and the said judgment became final.

8. Thereafter M/s Narang Overseas filed a fresh suit, No.274/77, for declaration and injunction against the appellant’s father. The main contention of M/s Narang Overseas in the suit was that the suit property is situated in Kotla Mubarakpur, New Delhi which is declared as slum area. As per Section 19 of the Slum Area Act, the suit could not have been instituted against M/s Narang Overseas without permission of the competent authority under the Slum Act. Section 19 of the Act reads as under:

” 19. Proceedings for eviction of tenants not to be taken without permission of the competent authority.- (1) Notwithstanding anything contained in any other law for the time being in force, no person shall, except with the previous permission in writing of the competent authority.”
9. M/s Narang Overseas submitted that the judgment and decree passed by Shri V.S.Aggarwal in Suit No.303/69 was a nullity. The appellant’s father, Mehar Chand Kohli, (defendant in the suit) took a preliminary objection that the said suit is not maintainable as the matter stand finally decided by the High Court in R.S.A.No.8/72 and since no special leave petition to the Supreme Court was preferred against the said judgment and decree, the same cannot be agitated by M/s Narang Overseas by instituting this suit. The learned Sub Judge who decided Suit No.274/77 filed by M/s Narang Overseas mentioned that the defendant did not deny the contents of para 4 of the plaint for want of knowledge. It was alleged that the denial has to be specific. The evasive denial is no denial in the eyes of law and amounts to admission.

10. M/s Narang Overseas relied on Ex. PW-2/1, a notification issued by a competent authority under the Slum Area Act. A perusal of the said notification shows that the property No.1443, Wazir Nagar, Kotla Mubarakpur, New Delhi is located in the slum area. It shows that the entire area of Kotla Mubarakpur had been declared a slum area. The trial court came to the conclusion that the property in dispute was located in slum area and admittedly no permission of the competent authority was taken before institution of the suit for possession.

11. The learned Sub Judge decreed the plaintiff’s suit and held that M/s Narang Overseas is entitled to relief of declaration as well as injunction. In view of the findings of said judgment (which became final and binding), there was no judgment and decree of a court of law binding the parties in the eye of law. Therefore, the appellant filed a suit for recovery of possession, Suit No.17/81, before the Sub Judge 1st Class, Delhi. The trial court on the basis of the pleadings and documents on record, framed six issues including Issue No.4, Whether the suit is barred by principle of res judicata? In the suit it was alleged by the appellant that his father was the absolute owner of plot No.27 bearing Municipal No.1443. It was mentioned that Sardul Singh and Baldev Singh illegally tresspassed into the land owned by the appellant and raised illegal construction without any approval from the MCD or any other appropriate authority. It is alleged that they have no right whatsoever to continue in the suit premises because it clearly belonged to the father of the appellant and thereafter devolved upon the appellant on the basis of a duly executed registered will by late Mehar Chand Kohli dated 21.12.1979.

12. In the suit Sardul Singh and Baldev Singh filed written statement and took the plea that the appellant is not the owner of the suit premises in question. They claimed to be the owners of the suit premises. According to the defendants the matter regarding possession of the suit premises cannot be re-agitated in view of the judgment of Shri V.S.Aggarwal, the court of a competent jurisdiction. According to him, in the judgment passed by Shri V.S.Aggarwal, Sardul Singh and Baldev Singh were found to be the owners of plot No.27 (New Municipal No.1443), Kotla Mubarakpur, New Delhi. It is also contended before the trial court that Shri V.S.Aggarwal also found that the defendants were not in possession of the suit land let out by the appellant to M/s Narang Overseas. It was also argued before the trial court that the suit filed by the plaintiff (appellants herein) is barred by the principles of res judicata as contained in Section 11 CPC and cannot be re-agitated over again in the present suit.

13. It may be pertinent to mention that in the suit filed by M/s Narang Overseas against Mehar Chand Kohli, Sardul Singh and Baldev Singh were not imp leaded as the necessary parties. No suit for declaration was filed by Sardul Singh and Baldev Singh stating that the decree passed by Shri V.S.Aggarwal against them was a nullity. The court observed that the judgment of Shri V.K.Jain, therefore, cannot be said to be a judgment in rem. Only the parties to the said suit can be said to be bound by it. Moreover, there was no question of taking any sanction under Section 19 of the Slum Area Act as regards Sardul Singh and Baldev Singh.

14. The case of the appellant before Shri V.S.Aggarwal in Suit No.303/69 was that they were sublettees of M/s Narang Overseas and as such were liable to hand over possession to the appellant. It is mentioned in the impugned judgment that Shri V.S.Aggarwal found that Baldev Singh and Sardul Singh were not the sublettees of M/s Narang Overseas Pvt. Ltd. and consequently dismissed the suit of the appellant against them. The learned Sub Judge in the impugned judgment held that the judgment of Shri V.S.Aggarwal as regards the parties in this suit stand as it is and the findings of Shri V.S.Aggarwal operate as res judicata. The learned Sub Judge also observed that the appellant (plaintiff) has no right to institute the present suit against the defendants (respondents herein) on the allegations which he made in Suit No.303/69. The learned Sub Judge held that the suit is barred under Section 11 of the Code of Civil Procedure.

15. Learned counsel for the appellant submitted that the judgment passed in Suit No.17/81 by Shri Jaswant Singh, Sub Judge is unsustainable in law and needs to be set aside. He also submitted that the judgment passed by Shri V.S.Aggarwal in Suit No.303/69 will not operate as res judicata against the Suit No.17/81 for the simple reason that Shri Aggarwal’s judgment was totally nullified by the subsequent judgment passed by Shri V.K.Jain on the ground that the former Court lacked the inherent jurisdiction for want of permission as required under Section 19 of the Slum Act.

16. In the said judgment the learned Sub Judge relied on a judgment of the Supreme Court in Sunder Dass v. Ram Prakash , The court of Shri V.K.Jain vide judgment passed in Suit No.274 of 1977 has nullified the previous judgment passed in Suit No.303 of 1969 passed by Shri V.S.Aggarwal on the ground that the latter Court had no inherent jurisdiction to entertain and grant relief to the parties as the plaintiff therein did not take permission under Section 19 of the Slums Act from the competent authority.

17. Since in a collateral proceedings the judgment passed by Shri V.S.Aggarwal in Suit No.303/69 has been nullified by the judgment of Shri V.K.Jain in Suit No.274/77, therefore, now, there is no judgment or order of a court of law, binding the parties in the present case. Therefore, the question of attracting the provision of Section 11 of the CPC does not arise and as such Suit No.17/81 is not barred by the principles of res judicata.

18. Learned counsel for the appellant has placed reliance on Mathura Prasad Sarjoo Jaiswal & Os. vs. Dossibai N.B. Jeejee Bhoy reported as . The court observed in paras 9 & 11 in the said judgment at page 2359:

” 9. Similarly, by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.
11. If the decision in the previous proceedings be regarded as conclusive, it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the Rule declared by the legislature.”
19. Reliance has also been placed on Jai Singh Jairam Tyagi et. vs. Maman Chand Ratilal Agarwal & Ors. . The court observed:

” A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.
As pointed out by this Court in Mathura Prasad Sarjoo Jaiswal vs. Dossibai N.B. Jeejee Bhoy, (supra) if the decision in the previous proceedings be regarded as conclusive, it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the Rule declared by the legislature.”
20. It was also contended that the sale deed Ex. P-12 & P-13 in Suit No.303/69 clearly indicated the plot numbers, area, location etc. and the same was duly registered with the competent authority. Therefore, the appellant is a rightful owner of the property bearing No.1443 which corresponds to Old Nos.22 & 27 and the respondents cannot claim ownership over the plots. It was submitted that the respondents are trespassers and have occupied the land of the appellant unauthorisedly on the basis of forged and fictitious documents, they are liable to be evicted. It was also submitted that on the basis of forged and fictitious document, Ex. D-1, the respondents herein are in occupation of the appellant’s property bearing Municipal No.1443. It is submitted that the impugned judgment passed on 2.11.1985 be set aside and the respondents herein be directed to vacate the premises bearing Municipal No.1443 (Old Nos.22 & 27) and the appellant be allowed to enjoy the said property.

21. Mr. Sudhanshu Batra, learned counsel appearing for respondents, supported the impugned judgment delivered in Suit No.17/81 and reiterated that the learned Sub Judge had correctly held that the appellant’s suit is barred under Section 11 of the Code of Civil Procedure and no interference is called for.

22. Mr.Batra placed reliance on Sulochana Amma v. Narayanan Nair, JT 1993 (5) 448 SC, Mahboob Sahab v. Syed Ismail and Ors., JT 1995 (3) 169 SC, Sanjiv Kakkar v. L. Kumar & five ors., , Pawan Kumar Gupta v. Rochiram Nagdeo, JT 1999 (3) SC 191 and Pawan Kumar Gupta v. Rochiram Nagdeo, 1999 (1) RCR 483 SC.

23. We have heard learned counsel for the parties at length and perused the relevant documents on record.

24. It may be pertinent to mention that the judgment and decree passed by Shri V.K.Jain in Suit No.274/77 became final between the parties because no appeal was preferred against that judgment and decree. According to the notification issued by the competent authority, 1443, Wazir Nagar, Kotla Mubarakpur, New Delhi lies in the slum area. According to Section 19 of the Slum Area (Improvement & Clearance) Act, 1956, prior permission of the competent authority is necessary for eviction of tenants.

25. On the basis of afore-mentioned facts, it can be clearly concluded that when there is a lack of inherent jurisdiction it goes to the root of the competence of the court to try the case and the decree passed by the said court can be declared to be void. This is irrespective of the fact that the decree has been affirmed by the higher court in appeal. When the judgment of Shri V.S.Aggarwal delivered in Suit No.303/69 was declared a nullity, then the necessary corrolary is that there has been no adjudication of the dispute between the parties. Consequently, this court is left with no option but to set aside the impugned judgment passed by Shri Jaswant Singh, Sub Judge 1st Class in Suit No.17/81 and remit the suit to the trial court for fresh adjudication.

26. In the extra ordinary facts and circumstances of this case, the parties have been litigating since 1971 and the appellant is over 83 years of age, we deem it appropriate to direct the trial court that the suit filed by the appellant be disposed of as expeditiously as possible and in any event within six months from today.

27. The appeal is accordingly allowed and disposed of accordingly. The parties are directed to bear their respective costs.