Abdullah and Another vs Jaikishan Peshawari

A. Gopal Rao, J.—Tenants are the petitioners in this revision petition, which is directed against the order, dated 15th September 1993, in E.A.No. 3/1989 in E.P.No. 39/1988 in O.S. 48/1989, passed by the learned III Additional Judge, City Civil Court, Hyderabad. By that order, the learned Judge refused to stay the execution of the decree, dated 19-8-1985, in Original suit No. 1088/1983, obtained by the landlord/respondent-herein, whereunder the Court ordered eviction of the petitioners-herein from the suit schedule premises.

Petitioners-herein have unsuccessfully carried the matter upto the Supreme Court and the Supreme Court also confirmed the decree, dt.19-8-1985 passed in O.S. No. 1088/83, ordering eviction of the petitioners herein from the schedule premises. In execution of the said decree, the respondent-landlord filed E.P.39 of 1988 in the lower Court. Petitioners-tenants filed E. A. 3/89, under Order 21, Rule 29 read with Section 151 CPC, contending that the decree, dated 19-8-1985, in O.S. 1088/83, obtained by the respondent-landlord is null and void and not executable) as the Court which passed that decree had no jurisdiction to pass the decree.

It is the contention of the petitioners-tenants that the suit, O.S.1088 /83 was erroneously entertained and decree passed, by the lower Court, thinking that G.O.Ms.No. 636, General Administration (Accommodation-A) Department, dated 29-12-1983, granting exemption to certain buildings from the provisions of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short ''the Act''), has retrospective effect. In other words, petitioners contend that the decree passed in O.S. 1088/83 is a nullity from its very inception as the Court which passed the decree in O.S. 1088/83 had no jurisdiction to deal with the matter and the Rent Control Court alone has got the jurisdiction. It is also the case of the petitioners that the decree in O.S.1088/83, being a nullity from its very inception, the objection regarding the jurisdiction of the Court to entertain the suit O.S.1088/83 can be taken even at the stage of execution of the said decree, and the bar of ''res judicata'' will not be attracted.

The building in question is a non-residential building, constructed in the year 1977-78 and the agreed rent is Rs. 1,400/- per month. At the time when the suit was filed (O.S.No. 1088/83), Clause (b) of Section 32 of the Act was in force and the same was struck down by the Supreme Court, as ultra vires the Constitution, subsequently, in the decision Motor General Traders v. State of A.P., AIR 1984 SC 121. Thereafter, G.O.Ms.No. 636, dated 29-12-1983 came into force exempting (a) all buildings for a period of ten years from the date on which their construction is completed and (b) buildings, the monthly rent of which exceeds Rs. 1,000/-, from the provisions of the Act.

This application, E.A.3/1989, was opposed by the respondent-landlord in the lower Court, on the ground that the objection regarding the jurisdiction of the Civil Court to entertain the suit, O.S. 1088/83 and to pass the decree was the subject-matter for decision in that suit and the said objection was also unsuccessfully raised in the Supreme Court also, and hence the petitioners cannot raise this objection once again, at the stage of execution of the decree obtained in O.S.No. 1088/83. Respondent also contended that as this objection regarding jurisdiction was raised and rejected earlier, the same operates as ''res judicata'' against the petitioners. In any event, according to the respondent, G.O.Ms.No. 636, dated 29-12-1983 has got retrospective effect and, even otherwise, the agreed rent being Rs. 1,400/- per month, the exemption from the provisions of the Act still operates. Respondent also contended that the petitioners have filed Writ Petition No. 8086/1986 in this Court, questioning the validity of G.O.Ms.No. 636, dated 29-12-1983 issued u/s 26 of the Act on the ground that the said G.O. was liable to be declared as illegal and violative of Article 14 of the Constitution of India; that writ petition was dismissed and Writ Appeal No. 707/1987 filed by the petitioners against the order dismissing their writ petition was also dismissed; pending disposal of Writ Appeal No. 707/87 petitioners obtained orders directing the respondent-herein not to execute the decree obtained by him in O.S. 1088/83.

In view of the rival contentions stated above, the point for determination in this revision petition is whether the petitioners can resist the execution of the decree dated 19-8-1985 obtained by the respondent in O.S.1088/83 for eviction of the petitioners from the suit schedule premises ?

The facts narrated above will disclose that subsequent to the judgment of the Supreme Court, in Motor General Traders'' v. State of A.P. (1 supra), at the instance of the petitioners, on an objection raised, issue No. 1 was framed in the suit O.S.1088/83 to the effect - "whether this Court has no jurisdiction to entertain the suit"? On appreciation of the entire evidence on record, the lower Court, by judgment, dated 19-8-1985 in O.S.No. 1088/83 held thus:

"A.P. Government passed G.O.Ms.No. 636, dated 29-12-1983 granting exemption from the operation of the A.P. Act of Buildings for a period of ten years front the date of construction of the said buildings and also the buildings where the monthly rent which exceeds Rs. 1,000. However, it has been held in the decision 1985 (1) ALT 171 that the G.O. itself is retrospective. So, under these circumstances, when the rent stipulated is more than Rs. 1,000/- for the said.........it is exempt under the provisions of the Act 15 of 1960".

In the first appeal filed before the Chief Judge, City Civil Court as well as in the second appeal before this Court, this point was not pressed by the petitioners- herein. However, when the matter was carried to the Supreme Court, petitioners filed a petition on 16-9-1988 in the Supreme Court, praying the Supreme Court to permit them to urge an additional ground to the effect:

"With the period of 10 years of exemption from the provisions of the A.P. Rent Control Act on the basis of which the respondent instituted the suit for eviction in the civil Court having come to an (sic) during the pendency of the litigation, having regard to this subsequent development, the A.P. Rent Control Act becomes operative and available to the petitioners."

The Supreme Court, by Order, dated 16-9-1988, passed the following Order:

"Issue notice. The petitioners are permitted to raise additional grounds. Pending notice, the execution of the decree in respect of the eviction only is stayed."

Ultimately, the Supreme Court dismissed the SLP (Civil) No. 9723 of 1988 on 12-12-1988 and the stay order earlier granted as above was vacated.

As mentioned already, by judgment, dated 26-10-1983, (in the decision Motor General Traders v. State of A.P. (1 supra) the Supreme Court struck down Clause (b) Section 32 of the Act, and G.O.Ms.No. 636, dated 29-12-1983 was issued giving retrospective effect from 26-10-1983. The writ petition, W.P. No. 8086/86 filed by the petitioners questioning the validity of G.O.Ms.No. 636 dated 29-12-1983 was dismissed by a learned single Judge of this Court on 27-12-1987 and the Writ Appeal 707/1987 was also dismissed by a Division Bench of this Court on 30-12-1987.

The sequence of events, referred to above, are therefore prior to the dismissal of SLP (C) 9723/88 by the Supreme Court on 12-12-1988. All the objections now raised in the present petition with respect to the executability of the decree dated 19-8-1985 in O.S.1088/83 were in fact available to the petitioners when the matter was pending in the Supreme Court, in SLP (C) 9723/1988. In fact, as mentioned above, the objection regarding the jurisdiction of the civil Court to pass the decree of eviction against the petitioners in O.S.1088/83 was allowed to be raised in the Supreme Court, and ultimately the Supreme Court rejected the contention of the petitioners and dismissed the SLP (Civil) 9723/88. Therefore, it follows that, the question of jurisdiction of the civil Court to pass the decree of eviction in O.S.1088/83 was considered and rejected by the Supreme Court in SLP (civil) 9723/1988. In the circumstances, the objection again raised by the petitioners regarding the executability of the decree obtained by the respondent in O.S.1088/83 on the ground that Civil Court had no jurisdiction to pass that decree, has to be rejected on the principle of ''res judicata'' and also on the ground of ''estoppel''.

Explanation VII, appended to Section 11 C.P.C. (which was inserted by the C.P.C. Amendment Act 104 of 1976), clearly lays down the provisions of Section 11 CPC shall apply to a proceeding for the execution of a decree and references in Section 11 CPC to any suit, issue of former suit shall be construed as references respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

It, therefore, follows that having unsuccessfully raised the objection in the suit itself that the civil Court has no jurisdiction to order eviction of the petitioners and also having persisted unsuccessfully in pressing this point once again before the Supreme Court, as per Explanation VII to Section 11 CPC the petitioners cannot be permitted to raise this objection once again, at the stage of execution of the very-same decree. If this is permitted, then there will be no end to litigation and will result in the ''tail wagging the dog''. After the dismissal of SLP (C) No. 9723/88 by the Supreme Court, there are no changed circumstances or subsequent events, warranting the petitioners to raise this objection afresh, at the stage of execution of the decree. Therefore, all the grounds, which might and ought to have been raised by the petitioners, to contend that the Civil Court has no jurisdiction to pass a decree of eviction, must be deemed to have been raised before the Supreme Court in the SLP. Therefore, the petitioners shall not be allowed to contend, once again at the execution stage on any ground, that the Civil Court has no jurisdiction to pass the decree.

Learned Counsel for the petitioners, however, relying upon a passage in the Judgment of the Supreme Court in Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his Lrs., contended that the question of jurisdiction of the Civil Court to pass the decree can be agitated again at the stage of execution of the decree, even though the matter was raised and considered in the suit itself. The passage, relied upon by the learned Counsel, in the judgment of the Supreme Court in Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his Lrs., runs thus:

"Therefore, though the decree was passed and the jurisdiction of the Court was gone into in issue Nos. 4 and 5 at the ex-parte trial, the decree thereunder is a nullity, and does not bind the appellant. Therefore, it does not operate as res judicata. The Courts below have committed grave error of law in holding that the decree in the suit operated as res judicata and the appellant cannot raise the same point once again at the execution."

No doubt, if the above extracted portion of the Judgment of the Supreme Court, in Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his Lrs., is read in isolation, or excluding the other portion of the judgment, it gives an impression that the objection regarding the jurisdiction of the Civil Court to pass a decree could be raised even at the stage of execution. However, If the Judgment of the Supreme Court is read as a whole, this impression gets dispelled. The principles regarding ''res judicata'' are summarised by the Supreme Court, at paragraph 26 of the same judgment, which run thus:

"Thus it is settled law that normally a decree passed by a Court of competent jurisdiction, after adjudication on merits of the rights of the parties, operates as res judicata in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In subsequent proceedings its validity cannot be questioned.

The doctrine of res judicata u/s 11 CPC is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus the decision of a competent Court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in the other proceedings between the parties and those claiming under them."

In the present case, as stated already, the objection regarding the jurisdiction was raised in the suit itself and the same was re-agitated again when the matter was carried to the Supreme Court and the said objection was over-ruled. Therefore, the facts in the case relied upon by the learned Counsel for the petitioners (viz.,) Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his Lrs., are totally different, from the case on hand. In that case, the defendants could get the opportunity of raising the objection regarding the jurisdiction of the Court which passed the decree, only at the stage when the said decree was sought to be executed. In the circumstances, in my humble view, the decision of the Supreme Court in Sushil Kumar Mehta v. Gobind Ram Bohar (2 supra), is not applicable to the facts of the present case. Therefore, I hold that the petitioners, having unsuccessfully raised the objection of lack of jurisdiction of the Court in passing the decree on all plausible grounds, are debarred from raising the objection again at the stage of execution of the same decree, on the principle of ''res judicata''. This is because, as mentioned already, there are no changed circumstances or subsequent events, after the dismissal of the SLP by the Supreme Court, for raising the objection again by the petitioners. In fact, having raised this objection unsuccessfully in all the Courts throughout, the petitioners are also estopped from re-agitating the same question at the stage of execution of the decree.

Arguments are addressed by the learned Counsel for both the parties, relying upon various decisions of this Court as well as the Supreme Court, regarding the effect of the decree passed by the Civil Court, after striking down Clause (b) of Section 32 of the Act by the Supreme Court; and the retrospective effect of G.O. Ms. 636, dated 29-12-1983. In the view now taken by me, viz., that the petitioners cannot raise any objection regarding the jurisdiction of the Civil Court which passed the decree, dated 19-8-1985 in O.S.No. 1088 of 1983, it is unnecessary to deal with the arguments advanced, and refer to the rulings cited by the learned Counsel for both the parties, on the above aspects.

Petitioners filed Writ Petition No. 8086/1986 in this Court, questioning the validity of G.O.Ms.No. 636, dated 29-12-1983, and obtained stay of execution of the decree, dated 19-8-1985 in O.S.No. 1088/83. A suit, O.S. No. 2099/1988 was got filed by one Mohd. Mohiuddin Khan, claiming that he is the owner of the premises in question and that the 1st petitioner-herein is his tenant, who, in turn, leased out the same to the defendants in O.S.1088/83, i.e., the petitioners in this revision petition and wanted the present respondent/landlord-decree-holder not to take possession of the premises in question from the petitioners. Accordingly, on 9-6-1989, status quo order was obtained, preventing the respondent-herein from executing the decree. That order of status quo was later vacated. Another suit, O.P.248/1988 (in forma pauperis) was filed on the file of the VI Additional Judge, City Civil Court, Hyderabad, for a declaration that Mohammed Hohiuddin Khan is the real owner and is in possession of the property in question and sought for a further declaration that the decree in O.S.1088/83 as null and void. In that suit also, an order was obtained by the plaintiff-therein in LA. 462/1988, to maintain status quo, pending disposal of that suit. When the said matter was carried in appeal (CMA 765/88) by the respondent, by order, dated 3-8-1988, the injunction petition filed by the plaintiff in that suit was dismissed, by the appellate Court.

From the above events, it is very clear that the petitioners; herein, before filing this revision petition, have attempted by all possible methods to see that the respondent-landlord will not execute the decree obtained by him validly, as far back as on 19-8-1985 in O.S.No. 1088/83, for eviction of the petitioners from the schedule premises. As mentioned already, the objections now sought to be raised were, in fact, unsuccessfully raised by the petitioners in the suit itself. In my considered view, the conduct of the petitioners in filing petitions consecutively in one Court or the other, to avoid the execution of the decree validly obtained by the respondent-landlord in O.S.1088/83, amounts to "abuse of process of the Court".

The Supreme Court, while dismissing the SLP No. 9723/88, did not give time to the petitioners to enable them to vacate the premises in question. The petitioners are, therefore, as a last chance, given time only upto 31st August, 1994 to vacate the premises in question and deliver vacant possession of the same to the respondent-landlord. The petitioners shall vacate the schedule premises and deliver vacant possession thereof to the respondent-landlord on or before 31st August 1994, positively. In the event of the petitioners failing to do so, and keeping the premises locked, the respondent-landlord shall proceed with the execution of the decree and secure vacant possession of the schedule premises by breaking open the locks.

In the result, this Civil Revision Petition is dismissed, as above, with costs.