Sukhdayal and Others vs State of M.P. and Others

R.C. Lahoti, J.

The Petitioners have come up to this Court, invoking our jurisdiction under Article 227 of the Constitution of India feeling aggrieved by the two Courts below, rejecting their prayer for the issuance of an ad-interim injunction under Order 39 Rules 1 and 2 C. P. C., protecting their possession over the suit premises allegedly held by them as tenants.

The facts in the background whereof the present position arises may briefly be noticed. The Respondents No. 3 and 4 are admittedly the owners of the suit property. They filed an application under Chapter III A of M.P. Accommodation Control Act, 1961 before the Rent Controlling Authority, Joura, seeking ejectment of the Petitioners on the ground that the premises were genuinely required by them On 10-9-1984, a compromise (Annexure R/2) was arrived at between the Petitioner and the Respondents No. 3 and 4, whereby the Petitioners agreed to suffer an order of ejectment securing four years time to vacate the premises On 17-11-1986, the Respondent No. 3 and 4 filed yet another suit before the Civil Court seeking ejectment of the plaint (Annexure R/4) shows that the ejectment was sought on several grounds including the ground of genuine requirement as well. However, the ground of genuine requirement was subsequently deleted from the plaint by moving an application for amendment. The order of the trial Court permitting amendment in the plaint was challenged in revision by the plaint by moving an application for amendment. The order of the trial Court permitting amendment in the plaint was challenged in revision by the Petitioners but the order of the trial Court was upheld. The suit (Annex. R/4) remains a suit for ejectment based on the grounds other than the genuine requirement of the Respondents No. 3 and 4.

On 13-8-1988, the Petitioners filed the present suit (copy of the plaint Annex. R/4) challenging the compromise dated 10-9-1984, and the order of ejectment based thereon, mainly on two grounds; firstly, that the officer before whom the compromise was not a Rent Controlling Authority appointed in the manner contemplated by Section 28 of the Act and hence the order was a nullity; secondly, that the order does not record availability of any ground for ejectment u/s 12 of the Act and hence the order was inexecutable. On these very ground a prayer for the issuance of an ad-interim injunction was made which has been rejected by the two Courts below.

The learned Counsel for the Petitioners has submitted that in as much as the Plaintiff/Petitioners had made out a prima face case, the balance of convenience lay in their favour and they would suffer irreparable injury if their possession was not protected the Courts below have committed a jurisdictional error in not granting the injunction prayed for-

Lengthy arguments were advanced at the hearing by both the learned Counsel for the parties on the availability or otherwise of the two grounds of attack to the validity of the order of ejectment and hence we proceed to record our opinion on the availability or otherwise of the prima facie case to the Plaintiff/Petitioners.

It is not disputed that the application for ejectment was made to the officer before whom the petition for compromise was later on filed and who passed the order of ejectment. The case of the Petitioners is that the officer could not have acted as a R. C. A. unless he was so appointed by the Collector with the previous approval of the State Government because that is the procedure prescribed for appointment of the R. C. A. u/s 28 of the Act. The officer having been so appointed but without the previous approval of the State Government would not be a R. C. A. though he may be a usurper of the office.

At the Bar, it has not been disputed that the officer who passed the order was a Diputy Collector and could have validly functioned as R.C.A. if only the previous approval of the State Government would have been obtained by the Collector while making the appointment. The question arises whether it would be permissible to entertain that ground of attack.

De facto doctrine provides answer to the question. In Gokaraju Rangaraju Vs. State of Andhra Pradesh, their Lordships of the Supreme Court have held:

A Judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, thought his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and act done by a judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief There is yet another rule also based on public policy The defective appointment of the de facto Judge may be questioned directly in a proceeding to which he may be party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the Judge except as a Judge Two litigants litigating their private issue title cannot be permitted to bring in issue and litigate upon the title of a Judge to his office. Otherwise so soon as a Jugde pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the Judge is no Judge. A Judge''s title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments To question a Judge''s appointment in an appeal against his judgment is, of course, such a collateral attack.

It is not the case of the Petitioners that they had at any time raised obsection to the jurisdiction of the officer concerned to function as R. C. A. and to entertain and decide the proceedings of the nature of which he was seized. The order of eviction passed by the authority was not challenged in revision.

In Beopar Sahayak (P) Ltd. and Others Vs. Vishwa Nath and Others, in similar circumstances, applying the de facto doctrine, their Lordships'' observed:

the validity and legality of the order of release passed by him cannot be impugned because Shri Senger had not held the office as a usurper but only under colour of lawful authority. There is, therefore, no escape for the Appellant from being governed by the de facto doctrine'' and thereby being disentitled to impugn the validity of the release order on the ground of want of jurisdictional competence for Shri Senger to pass the order

Applying the principles laid down in Gokaraju Rangaraju (supra), a Division Bench of this Court held in Manoharlal v. Smt. Ratnakumari AIR 1988 MPRCJ SN 13, in the circumstances more or less similar to the case at hand;

It was not disputed before us that Respondent No. 5 was a Deputy Collector at Neemuch and was appointed by the Collector as the Rent Controlling Authority, Neemuch. The contention advanced on behalf of the Petitioner was that Respondents No. 5 was not properly appointed as Rent Controlling Authority u/s 28 of the Act because previous approval of the State Government bad not been sought by Collector before such appointment. Even assuming that the appointment of Respondent No. 5 was defective, as urged on behalf of the Petitioner, the impugned order passed by Respondent No. 5, cannot be quashed on the ground of any defect in the appointment of Respondent No. 5, in view of the judgment of the Supreme Court in Gokaraju Rangaraju v. State of Andhra Pradesh.

In so far as the first ground of attack to the validity of the order is concerned it fails.

Next, we proceed to examine the worth of invalidity canvassed on the ground of the compromise and the order of ejectment failing to record availability of any ground of ejectment under M. P. Accommodation Control Act, 1961. It will be useful to refer to the two decisions of the Supreme Court on the point. In Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others, , their Lordships held:

The consent decree for possession passed by the Court is nor necessarily a nullity. If there was a clear admission in the compromise, incorporated in the decree, of the fundamental facts that could constitute a ground for eviction u/s 12 or S. 13, it will be presumed that the Court was satisfied about the existence of such statutory ground and the decree for eviction though apparantly passed on the basis of a compromise, would be valid.

XX XX XX XX

Such material may take the shape either of evidence recorded or produced in the case, or. it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. Admissions, if true and clear, are by far the best proof of the facts admitted and they by themselves can be made the foundation of the parties

Vide para 29 of Nagindas''s case (Supra), their Lordships'' have observed-

If, on the face of it. the decree does not show the existance of such material fact, the Exucting Court may look to the original record of the trial court to ascertain whether there was any material furnishing a foundation for the trial court''s jurisdiction to pass the decree it did The moment it finds that prima facie such mate rial existed, its task is complete. It is not necessary for it to go further and question the presumed or expressed finding of the trial Court on the basis of that material. All that it has to see is whether there was some material on the basis of which the Rent Court could have-as distinguished from must have been satisfied as to the statutory ground for eviction.

(underlining by us).

In Suleman Noormohamed and Others Vs. Umarbhai Janubhai, their Lordships'' have held:

Where an eviction suit under the Bombay Rents, Hotel and Lodging Houses Rates, Control Act, 1947, was disposed of on compromise between the parties, the tenant having either expressly or impliedly suffered a decree for eviction as being liable to be evicted in accordance with S. 12 (3) (b) of the Act, and there was abundant intrinsic material in the compromise itself to indicate that the decree passed upon its basis was not in violation of the Act but was in accordance with it, the compromise decree was not a nullity and could be executed on noncompliance.

XX XX XX XX

While recording the compromise under Order XXIII Rule 3 of the Code, it is not necessary for the Court to say in ''express terms in the order that it was satisfied that the compromise was a lawful one. It will be presumed to have done so, unless the contrary is shown.

(underlining by us.)

With the return, copy of the application for ejectment filed before the R.C.A. has been made available marked Annex. R/1. It shows that several grounds entitling the landlords to seek ejectment of the tenants have been clearly and in so many words pleaded. A copy of the compromise has been filed and marked as Annex. R/2 It will be useful to reproduce relevant extracts therefrom as under:

(Underlining by us)

The dead of compromise expressly admits all the averments made in the plaint dispensing with the necessity of proof thereof and further proceeds to state expressly that in view of the genuine requirement of the Plaintiffs, the Defendant/tenants were prepared to vacate the house subject to an extension of time by a period of four years to vacate the premises. It does not, therefore, lay in the mouth of the Petitioners to contend that the compromise and the order passed thereon were vitiated for violation to record the availability of the grounds of ejectment. In the opinion of this Court, the Courts below have committed to error of law in holding that the Petitioners did not have any prima facie case.

Not only this, the conduct of the Petitioners also disentitled them to any relief being granted either by the Courts below or by this Court. The compromise was entered into on 10-9-1984. Certified copy of the receipt book, obtained from the copying department of the R.C.A. and filed with the return as Annex. R/7, shows that the Petitioners had applied for the certified copy of the order of the R. C. A. on 28-9-1984 and secured the same on 5-10-1984. They observed complete silence for a period of nearly four years and took full advantage of the beneficial part of the compromise. The time to vacate appointed by the compromise and the order of eviction was 10-9-1988. On 13-8-1988, the Petitioners filed the present suit seeking an injunction. In Kamlabai and Others Vs. Mangilal Dulichand Mantri, their Lordships held have held:

.... When the tenant did not raise the objection that no decree for eviction could be passed as there was no permission of the Rent Controller in the suit for eviction filed on the basis of the award of the arbitrator granting time to vacate but in proceedings for execution of the decree passed principles of constructive res judicata were applicable. If the tenant intended to raise the objection that the decree on the basis of the award could not be passed as it was in contravention of Cl. 13 of the Rent Act and therefore was absolutely without jurisdiction. Such an objection could have been raised there and then.

In Dayal Chand and Anr. v. Gajraj Singh and Anr. 1980 JLJ 319, the Division Bench quoted with approval the following passage from Proof. Wade''s Unlawful Administrative Action, Void and Voidable:

It may be no more than a truism to point out, as in effect Lord Morris and Lord Redcliffe do, that words such as ''Void'' and ''nullity'' are legally meaningless except in the context of an actual or assumed decision of a Court For the same could be said with truth about many legal terms. But it is an important truism for the present discussion, since a conclusion emerges: ''Void'' and ''voidable'' are in their present application indistinguishable in meaning The reason is simple that no dispute act of a public authority can safely be treated as void in law unless the Court can be persuaded to condemn it. It makes no difference to call it a voidable act, for the situation remains exactly the same.

(Pp. 515-16)

When the authors of the void act are ''in authority , their action prevails and produces all the legal consequences of valid action unless and until the aid of the law is successfully invokes to invalidate it.

(p. 517)

To say that an act "is automatical null and void without more ado'' and that ''there is no need for an order to quash it'', if it means that an act can be invalidated without any recourse to a Court of law, conflicts directly with the truths stated by Lord Morris. Lord Redcliffe and Kelien.

(P 624).

Examining the law in the background of the above said observations, as to the attack to a decree, that it was void, the Division Bench observed:

In order to avoid the effect or consequences of a decree which the judgment debtors consider to avoid, a remedy prescribed by law has to be restored to for getting it declared void or set aside and unless this is done, the effect of such a decree cannot be avoided.

The conduct of the Petitioners in not raising a timely challenge to the order of eviction, either before or at the time when it was made or seen thereafter and rather standing by it, also taking advantage thereunder for a period four years, deprives them of their right to lay a bleated challenge.

We are also mindful of our jurisdiction which had been invoked under Article 227 of the Constitution. We have to act in the aid of justice and assist only a deserving cause. While doing so, we cannot afford to be oblivious of conduct of the parties. We cannot in exercising the supervisory power under Act, 227 act as an appellate Court or Tribunal, we cannot review or reweigh the factual considerations determined by the inferior courts, and correct a decision which is canvassed to fee merely wrong (see Mohd. Yunus Vs. Mohd. Mustaqim and Others,

For the foregoing reasons, we are of the opinion that the petition is wholly devoid of merit. It is dismissed with costs. "Counsel''s fee Rs. 10/-. if certified.

(S.L.P. No 577/92 preferred against this order was dismissed by Supreme Court on 31-1-1992).