Ayesha Begum vs Venkataswamy

A. Hanumanthu, J.—This second appeal has been preferred against the judgment and decree dated 30-8-1988 passed in A.S.No. 119/86 on the file of the Chief Judge, City Civil Court, Hyderabad confirming the judgment and decree of the III Assistant Judge, City Civil Court, Hyderabad dismissing the suit O.S. No. 3038/81.

The appellant herein is the plaintiff and respondent herein is the defendant in the said suit. That suit was filed by the appellant-plaintiff herein for ejectment of the respondent-defendant herein from the plaint schedule premises and for recovery of arrears of rent and mesne profits alleging that the respondent was inducted as tenant in the said premises with effect from 11-10-1965 and the monthly rent was enhanced to Rs. 25/- and that the defendant committed default in payment of rent from 11-1-1981 to 11-10-1981 and that the tenancy was terminated after issuing notice u/s 106 of Transfer of Property Act. It is also alleged in the plaint that the suit house was constructed after 26-8-1957. The respondent-defendant resisted that suit. He denied the allegation that he is a tenant of the plaintiff with respect to the suit premises. He also pleaded that there is no relationship of landlord and tenancy and that the suit house was constructed prior to 1957 and as such, the Civil Court has no jurisdiction to try the matter. The defendant also set up his own title to the suit House. Oral and documentary evidence was adduced on behalf of both the parties. On a consideration of the said oral and documentary evidence placed before him, the learned Asst. Judge held that Civil Court has no jurisdiction to try the suit in view of the judgment of the Supreme Court in striking down Section 32(b) of A.P. Building (Lease, Rent, Eviction) Control Act, 1960 (for short ''Rent Control Act'') and that Rent Control Act alone has got jurisdiction to try the suit in view of the G.O. No. 636 issued by the Government of A.P. and consequently, the plaintiff''s suit was dismissed with costs. It may be stated here that while finding that this Court has no jurisdiction to try the suit, the learned Asst. Judge also gave his findings on merits that there is no relationship of landlord and tenant between the plaintiff and defendant and that the defendant is the owner of the suit premises. On appeal against the said findings, the learned Chief Judge, City Civil Court, Hyderabad also confirmed the said finding of the trial Court that Civil Court has no jurisdiction to try the suit for ejectment. The learned Judge further held that the plaintiff is not entitled to recover the arrears of rent as the plaintiff failed to establish that the defendant has been in occupation of the suit premises as tenant of the plaintiff. Consequently, the appellate Court dismissed the appeal with costs. Challenging the said judgment and decree of the appellate Court, this second appeal has been filed by the plaintiff.

The learned Counsel for the appellant-plaintiff raised the legal plea that when a Court hold that it has no jurisdiction over the subject-matter of the suit, it cannot decide the issues involved on merits and it has to return the plaint for presentation to the proper Court and that in the instant case, both the Courts below, having decided that they have no jurisdiction to try the plaintiff''s suit for ejectment and recovery of arrears of rent, they ought to have returned the plaint for presentation before the Rent Controller having jurisdiction and that both the lower Courts committed error in deciding the issues with regard to the relationship of landlord and tenant on merits. Therefore, the legal question that arises for consideration in this second appeal is whether a Court can decide the issues in dispute on merits after holding that it had no jurisdiction over the subject-matter of the suit.

The appellant-plaintiff filed the suit for ejectment of the respondent-defendant from the suit premises alleging that he is a tenant, that he has committed wilful default in paying the arrears of rent. It is not disputed that at the time of filing of the suit, the Civil Court had jurisdiction to entertain the suit. However, during the pendency of the suit, Clause (b) of Section 32 of the Rent Control Act was struck down by the Supreme Court in "Motor General Traders and Ors. v. State of A.P. and Ors." AIR 1984 SC 121 . Section 32(b) of the Rent Control Act reads as follows:

"Provisions of this Act shall not apply:

(a) to any building constructed by the Government.

(b) to any building constructed on or after 26th August, 1957."

The provisions under Order VII Rule 10 C.P.C. are also relevant in this context and they read as follows:

"10. (1) Subject to the provisions of Rule 10-A, the plaint shall at any stage of the suit be returned to be presented to the Court in which lite suit should have been instituted.

Explanation:-- For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, return of the plaint under this sub-rule."

Under these provisions, it is mandatory on the part of the Court to return the plaint for being presented to the proper Court when it comes to the conclusion, at any stage of the suit, that it has no jurisdiction over the subject-matter of the suit. It is not open to the said Court to give findings on issues on merits after coming to the conclusion that it has no jurisdiction. The said findings will be void for want of jurisdiction. Three Judges Bench of the Supreme Court in "Sri Athmanathaswami Devasthanam v. K. Gopal Swamy Ayyangar" 1964 (1) SCJ 105 has categorically held that when a Court had no jurisdiction over the subject-matter of the suit, it cannot decide any question on merits and it can simply decide on the question of jurisdiction over the matter has to return the plaint. Therefore, I have no hesitation to conclude that both the trial Court as well as the first appellate Court having held that they have no jurisdiction to entertain the suit, ought to have returned the plaint to present the same before the proper Court instead of dismissing the suit on merits.

It is contended by the learned Counsel for the respondent-defendant that the finding of the trial Court as well as the first appellate Court that the Civil Court has no jurisdiction to entertain the suit for eviction subsequent to the striking down of Clause (b) of Section 32 of the Rent Control Act by the Supreme Court, is incorrect. He elaborates his arguments by submitting that on the date of filing of the suit, Clause (b) of Section 32 of Rent Control Act was in force and as such, the Civil Court had jurisdiction to entertain the suit and dispose of the same and therefore, the right of the party to file a Civil suit for eviction of the tenant had crystalised on the date of institution of the suit and such right could not be affected on account of quashing of Clause (b) of Section 32 subsequent to the filing of the suit. The learned Counsel for the respondent also relied on the decisions of this Court in 1989 (2) ALT 28 and Vallabhaneni Sarala Devi Vs. Rachapudi Subba Rao, for the proposition that the jurisdiction of Civil Court is not ousted when the matter is pending on the date of striking down of Clause (b) of Section 32.

The learned Counsel for the appellant, on the other hand, submits that the finding of the trial Court as well as the appellate Court that Civil Court has no jurisdiction to entertain the suit has not been challenged by the defendant and that finding has been allowed to become final between the parties and as such, it is not open for the defendant now to urge that point in this second appeal. I am in full agreement with the submissions made by the learned Counsel for the appellant on this point. He allowed the said finding to become final between the parties. He did not challenge the said finding either by preferring a separate appeal or by filing cross-objections in this appeal. Hence, it is not open to set aside the finding of the Courts below.

In the light of the above discussion, I hold on the question that the Court cannot decide the issues involved on merits, after holding that it has no jurisdiction over the subject-matter of the suit. It has to return the plaint for presentation to the proper Court.

In the result, the findings of the trial Court as well as the first appellate Court that there is no relationship of landlord and tenancy between the plaintiff and defendant, that defendant alone has got title to the suit premises and that the plaintiff is not entitled to the arrears of rent, are hereby set aside. The trial Court is directed to return the plaint for presentation to the proper Court in view of the findings of the trial Court as well as the appellate Court that Civil Court has no jurisdiction to entertain the subject-matter of the suit. The trial Court is further directed to comply with the provisions under Order VII Rule 10(2) C.P.C. while returning the plaint for presentation to the proper Court. The appeal is allowed to the extent stated above. In the circumstances of the case, parties are directed to bear their costs. Office is directed to sent the records to the lower Court forthwith.