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CASE NO.:

Appeal (civil) 1058 of 2003

PETITIONER:

Sarwan Kumar & Anr.

RESPONDENT:

Madan Lal Aggarwal

DATE OF JUDGMENT: 06/02/2003

BENCH:

Syed Shah Mohammed Quadri & Ashok Bhan

JUDGMENT:

J U D G M E N T

(arising out of SLP No. 18553 of 2001)

BHAN, J.

Leave granted.

The short point which falls for determination in this appeal is :

whether a decree for ejectment passed by a civil court qua a commercial

tenancy in the State of Delhi before the declaration of law by the Supreme

Court in Gian Devi Anand Vs. Jeevan Kumar, 1985 Suppl.(1) SCR 1, that

such a tenancy is heritable, is executable or the judgment-debtors can

successfully object to the execution of the decree on the ground that same

was passed by a court lacking inherent jurisdiction and therefore

inexecutable?

Property No. 212/IX, Chawri Bazar Delhi, was owned by Smt. Sarla

Devi, wife of the respondent-landlord (hereinafter referred to as "the decree-

holder"). She let out the suit premises in 1969 at a monthly rent of Rs. 75/-

for commercial purposes to late Shri Amar Nath, predecessor-in-interest, of

the appellants (hereinafter referred to as "the judgment-debtors"). Smt.

Sarla Devi died on 28th January, 1980. She had executed a will dated 25th

April, 1979 in favour of the decree-holder. The Decree-holder obtained the

letters of administration by filing a probate case No. 41 of 1980. By virtue

of the probate given in his favour the decree-holder became the owner of

the suit premises.

The decree-holder served a notice to quit under Section 106 of the

Transfer of Property Act, 1882 on late Shri Amar Nath. Amar Nath in

response to the notice to quit stated that he was not a tenant in his personal

capacity and the tenant in the tenanted premises was a partnership firm M/s

Pelican Paper and Stationary Mart in which he was one of the partners.

Amar Nath expired on 27th January, 1982. The decree-holder filed a suit for

possession and mesne profits against the judgment-debtors in the court of

District Judge, Delhi stating therein that Amar Nath was the tenant of the

suit premises in his individual capacity. It was alleged that the tenancy in

favour of the judgment-debtors being the legal heirs of the original tenant

was not heritable. Judgment-debtors were not served personally. Service on

them was affected through publication in the newspaper in February, 1985.

An ex-parte decree of possession/recovery of mesne profits was passed

against them. Civil Court recorded a finding that Amar Nath after the

termination of tenancy became the statutory tenant and on his death the

tenancy came to an end and accordingly a decree for possession of the suit

premises along with the arrears of rent of damages was passed.

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Thereafter, on 1st July, 1985 the decree-holder filed the execution

application. On 21st August, 1986 judgment-debtors filed an application

under Order 9 Rule 13 for setting aside the ex-parte decree which was

dismissed by the trial court on 25th January, 1993. Judgment-debtors filed

a regular first appeal in the High Court against the order of the trial Court.

On 26th July, 1995, the High Court stayed the proceedings in the execution

petition. On 7th September, 1998 the appeal filed by the judgment-debtors

was dismissed by the High Court. The judgment-debtors thereafter filed

Special leave Petition (Civil) No. 20667 of 1998. Same was dismissed

leaving it open to the judgment-debtors to raise the question regarding the

executibility of the decree before the appropriate forum. The following

order was passed.

"Learned counsel appearing for the

petitioners urged that since the petitioners

are protected tenants, neither any decree for

eviction can be passed nor can such decree

be executed against them. We are not

inclined to go into this question as it is not

the subject matter of the order under appeal.

The special leave petition is dismissed. It is

open to the petitioners to raise this ground

before the appropriate forum, if available to

them under law."

Soon after the dismissal of the special leave petition the judgment-

debtors filed regular first appeal No. 39 of 2000 in the High Court against

the original decree dated 2nd April, 1985 passed by the civil court along with

an application for condonation of delay of almost 15 years in filing the

appeal. Interlocutory application for condonation of delay was rejected and

consequently the regular first appeal No. 39 of 2000 was dismissed on 24th

January, 2000 being barred by time.

After the dismissal of the special leave petition by this Court the

execution proceedings revived. The judgment-debtors filed its objections

under Section 47 of the Code of Civil Procedure (CPC) objecting to the

execution of the decree, inter alia, on the ground that commercial tenancy in

the State of Delhi was heritable in view of the law declared by this Court in

the case of Gian Devi Anand's case (supra) and therefore the civil court

lacked the inherent jurisdiction to pass such a decree. After the death of the

statutory tenant the possession of the judgment-debtors did not become

unlawful and illegal. They continued to have estate in the tenanted premises

which were heritable and the jurisdiction of the civil court to pass an order

of ejectment was barred under Section 50 of the Delhi Rent Control Act,

1958 (hereinafter referred to as "the Act"). Under the Act tenancy rights of

commercial premises which were heritable would devolve on the legal heirs

under ordinary law of succession.

Executing Court over-ruled the objections filed by the judgment-

debtors holding that the executing court could not go beyond the decree

which had obtained finality. The executing court could not refuse to execute

the decree passed by civil court only because subsequently Supreme Court in

Gian Devi Anand's case (supra) held that the commercial tenancy was

heritable. Appellants being aggrieved filed a petition under Article 227 of

the Constitution of India against the dismissal of their objections to the

execution of the decree. High Court took the same view regarding the

applicability of the law declared by this Court in Gian Devi Anand's case

(supra) and relying upon the decision of this Court in Bharmappa Nemanna

Kawale & Anr. Vs. Dhondi Bhima Patil & Ors., 1996 (8) SCC 243. The

High Court held as under:

"In such matters, the doctrine of

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prospective/retrospective overruling shall

have to yield place to the doctrine of res

judicata and whenever a matter has been

finally decided the decree could not be

declared to be nullity simply because by a

subsequent judgment it was clarified that the

civil court had no jurisdiction and the matter

should have been tried by the Rent

Controller."

Delhi High Court in Gian Devi Anand Vs. Jeevan Kumar case

reported in 1980 (17) DLT 197, which was in appeal before the Supreme

Court in Gian Devi Anand's case (supra) took the view that commercial

tenancy was not heritable and therefore on the death of the original tenant

the contractual tenancy comes to an end and the protection afforded to a

statutory tenant under the Rent Act is not available to the heirs and legal

representatives of the statutory tenant. In the appeal preferred against the

judgment of Delhi High Court, a Constitution Bench of this Court overruled

the view taken by the High Court and after referring to the relevant

provisions of the Delhi Rent Control Act, 1958 extensively before and after

its amendment by Act 18 of 1976 took the view:

"Accordingly, we hold that if the Rent Act

in question defines a tenant in substance to

mean a tenant who continues to remain in

possession even after the termination of the

contractual tenancy till a decree for eviction

against him is passed, the tenant even after

the determination of the tenancy continues

to have an estate or interest in the tenanted

premises and the tenancy rights both in

respect of residential premises and

commercial premises are heritable. The

heirs of the deceased tenant in the absence

of any provision in the Rent Act to the

contrary will step into the position of the

decreased tenant and all the rights and

obligations of the deceased tenant including

the protection afforded to the deceased

tenant under the Act will devolve on the

heirs of the deceased tenant."

On the question as to who would inherent the tenancy right, it was observed:

"In the absence of any provision

regulating the right of inheritance, and the

manner and extent thereof and in the

absence of any condition being stipulated

with regard to the devolution of tenancy

rights on the heirs on the death of the tenant,

the devolution of tenancy rights must

necessarily be in accordance with the

ordinary law of succession."

In the same judgment this Court held that the landlord can seek the eviction

of the tenants of the properties which were covered by the Rent Act only on

the grounds specified in the Rent Act.

It is not in dispute before us that to a premises to which the Rent Act

applies, eviction can only be ordered by the authorities/rent controller

constituted under the Rent Act and the civil courts have no jurisdiction to

entertain suits for eviction of the tenants from the premises to which the

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Rent Act applies. Further, it is not in dispute that the owners of tenanted

premises whether residential or commercial, is permitted by the Rent

Controller to seek eviction of the tenant only on the grounds specified in the

Rent Act. Counsel for the respondent-decree holder did not also dispute that

after the declaration of the law by this Court in Gian Devi Anand's case

(supra) (judgment was delivered on 1st May, 1985) any decree passed by the

civil court would be non-est having been passed by a court lacking inherent

jurisdiction. But according to him to the decrees passed prior to the

declaration of the law by this Court in Gian Devi Anand's case (supra) this

rule would not apply. According to him such decrees are valid and lawful

having been passed by the court of competent jurisdiction at the time of

passing of the decree and therefore capable of being executed. The decrees

passed prior to the declaration of law in Gian Devi Anand's case (supra) did

not cease to be operative and inexecutable in view of the law laid down in

that case. In other words, contention is that Gian Devi Anand's case (supra)

would be prospective in application and would not be applicable to the

decree which was passed prior to the judgment of the Supreme Court in

Gian Devi Anand's case (supra). As against this counsel for the appellant

relying upon the decision of this Court in Dr. Suresh Chandra Verma & Ors.

Vs. The Chancellor, Nagpur University & Ors., 1990 (4) SCC 55, and Lily

Thomas & Ors. Vs. Union of India & Ors., 2000 (6) SCC 224, contended

that this Court does not legislate and only interprets the law and when a

particular provisions is interpreted then it in effect declares the law as it is

stood from the beginning as per its decision and it would be deemed as if

that was the law. It is open to the Court to protect the earlier decision to

make the rule applicable prospectively and save the decisions which have

already become final or have been given effect to. In the absence of any

specific observations to the effect that the law declared in Gian Devi

Anand's case (supra) would be prospective in operation and would not

apply to the decrees already passed by the civil courts, it cannot be held that

the rule laid down in Gian Devi Anand's case (supra) would not apply to the

decrees which had been passed by the civil court having no jurisdiction to do

so. In Dr. Suresh Chandra Verma & Ors. (supra) this Court held:

"The second contention need not detain us

long. It is based primarily on the provisions

of Section 57(5) of the Act. The contention

is that since the provisions of that section

give power to the Chancellor to terminate

the services of a teacher only if he is

satisfied that the appointment "was not in

accordance with the law at that time in

force" and since the law at that time in force,

viz. On March 30, 1985 when the appellants

were appointed, was the law as laid down in

Bhakre case which was decided on

December 7, 1984, the termination of the

appellants is beyond the powers of the

Chancellor. The argument can only be

described as nave. It is unnecessary to

point out that when the court decides that the

interpretation of a particular provision as

given earlier was not legal, it in effect

declares that the law as it stood from the

beginning was as per its decision, and that it

was never the law otherwise. This being the

case, since the Full Bench and now this

Court has taken the view that the

interpretation placed on the provisions of

law by the Division Bench in Bhakre case

was erroneous, it will have to be held that

the appointments made by the University on

March 30, 1985 pursuant to the law laid

down in Bhakre case were not according to

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law. Hence, the termination of the services

of the appellants were in compliance with

the provisions of Section 57(5) of the Act."

In Sarla Mudgal (Smt.) President, Kalyani & Ors. Vs. Union of India

& Ors., 1995 (3) SCC 635, this Court considered the validity of the second

marriage of a Hindu husband after conversion to Islam without having the

first marriage dissolved under the law. It was held that such a marriage

would be void in terms of the provisions of Section 494, IPC and the

husband would be guilty of the offence under Section 494, IPC. It was held:

"Answering the questions posed by us in

the beginning of the judgment, we hold that

the second marriage of a Hindu husband

after conversion to Islam, without having his

first marriage dissolved under law, would be

invalid. The second marriage would be void

in terms of the provisions of Section 494

IPC and the apostate-husband would be

guilty of the offence under Section 494

IPC."

In Lily Thomas & Ors. Case (supra) while rejecting the contention

that the law declared in Sarla Mudgal's case (supra) could not be applied to

persons who had solemnised marriages in violation of the mandate of law

prior to the date of the judgment, this court held:

"We are not impressed by the arguments to accept

the contention that the law declared in Sarla

Mudgal case cannot be applied to persons who

have solemnised marriages in violation of the

mandate of law prior to the date of judgment. This

Court had not laid down any new law but only

interpreted the existing law which was in force. It

is a settled principle that the interpretation of a

provision of law relates back to the date of the law

itself and cannot be prospective from the date of

the judgment because concededly the court does

not legislate but only gives an interpretation to an

existing law. We do not agree with the arguments

that the second marriage by a convert male Muslim

has been made an offence only by judicial

pronouncement. The judgment has only

interpreted the existing law after taking into

consideration various aspects argued at length

before the Bench which pronounced the judgment.

The review petition alleging violation of Article

20(1) of the Constitution is without any substance

and is liable to be dismissed on this ground alone."

Invocation of the doctrine of prospective overruling relying upon

Bharmappa Nemanna Kawale's case (supra) by the High Court is misplaced.

In Bharmappa Nemanna Kawale's case (supra) civil court passed to decree

for eviction against the tenant holding that he was not a tenant which decree

became final. When the plea of jural relationship of landlord and tenant was

negatived by the executing court the landlord filed a writ petition in the High

Court in which the High Court directed the executing court to go into that

question. On these facts this Court over-turning the decision of the High

Court held:

"Shri Bhasme, the learned counsel for the

respondents, contended that in view of the specific

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language employed in Section 85-A of the

Bombay Tenancy and Agricultural Lands Act,

1948 (67 of 1948) the only competent authority

that has to go into the question is the revenue

authority under the Act and the civil court has no

jurisdiction to go into the question whether the

appellant is a tenant or not. Therefore, the High

Court was right in directing the executing court to

go into the question. It is rather unfortunate that

the respondent has allowed the decree holding that

he is not a tenant to become final. Having allowed

it to become final, it is not open to him to contend

that he is still a tenant under the Act and therefore

the decree is a nullity. Under those circumstances,

the executing court was right in refusing to

entertain the objection for executing the decree.

The High Court was not justified, in the

circumstances, in directing the executing court to

consider the objection."

This Court neither considered the doctrine of prospective overruling nor did

it go into the question of executability of a decree passed by a court having

no jurisdiction. This court overruled the view taken by the High Court

because the tenant let the earlier civil court decree to the effect that he was

not a tenant became final. The decree passed by civil court under the

circumstances was perfectly valid. Question of jural relationship of landlord

and tenant could not be gone into by the executing court afresh. It was a

short judgment and no other point was considered by this Court in the said

judgment.

For the first time this Court in Golak Nath Vs. State of Punjab, AIR

1967 SC 1643 accepted the doctrine of "prospective overruling". It was

held:

"As this Court for the first time has been called

upon to apply the doctrine evolved in a different

country under different circumstances, we would

like to move warily in the beginning. We would

lay down the following propositions: (1) The

doctrine of prospective overruling can be invoked

only in matters arising under our Constitution; (2)

it can be applied only by the highest court of the

country, i.e., the Supreme Court as it has the

constitutional jurisdiction to declare law binding

on all the courts in India; (3) the scope of the

retroactive operation of the law declared by the

Supreme Court superseding its "earlier decisions"

is left to its discretion to be moulded in accordance

with the justice of the cause or matter before it."

The doctrine of "prospective overruling" was initially made applicable to

the matters arising under the Constitution but we understand the same has

since been made applicable to the matters arising under the statutes as well.

Under the doctrine of "prospective overruling" the law declared by the Court

applies to the cases arising in future only and its applicability to the cases

which have attained finality is saved because the repeal would otherwise

work hardship to those who had trusted to its existence. Invocation of

doctrine of "prospective overruling" is left to the discretion of the court to

mould with the justice of the cause or the matter before the court. This

Court while deciding the Gian Devi Anand's case (supra) did not hold that

the law declared by it would be prospective in operation. It was not for the

High Court to say that the law laid down by this Court in Gian Devi Anand's

case (supra) would be prospective in operation. If this is to be accepted then

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conflicting rules can supposedly be laid down by different High Courts

regarding the applicability of the law laid down by this Court in Gian Devi

Anand's case (supra) or any other case. Such a situation cannot be permitted

to arise. In the absence of any direction by this Court that the rule laid down

by this Court would be prospective in operation the finding recorded by the

High Court that the rule laid down in Gian Devi Anand's case (supra) by this

Court would be applicable to the cases arising from the date of the judgment

of this Court cannot be accepted being erroneous.

This Court in Sushil Kumar Mehta vs. Govind Ram Bohra 1990 (1)

SCC 193 after referring to and exhaustively dealing with and following

various judgments of this Court held that a decree passed by a civil court in a

rent matter, the jurisdiction of which was barred by the Haryana Urban

(Control of Rent & Eviction) Act, 1973, having been passed by a court

lacking inherent jurisdiction to entertain the suit for ejectment was a nullity

and the judgment-debtors successfully could object to the execution of the

said decree being a nullity.

The facts of the said case were almost identical to the facts of the

present case. The facts which led to the decision in that case were: landlord

filed a suit in the court of Senior Sub Judge for ejectment and recovery of

arrears of rent and damages for use and occupation of a shop at Gurgaon, let

out to the tenant. An ex parte decree was passed. Issue regarding

jurisdiction of the civil court was framed and the same was decided against

the tenant. Application under Order 9 Rule 13 to set aside the ex parte

decree was dismissed. It was confirmed on appeal. Revision was dismissed

by the High Court. When the landlord filed the application for execution of

the decree to obtain possession, the tenant objected under section 47 of CPC

contending that the decree of the civil court was a nullity as the premises in

question were governed by the Rent Act. The Controller under the Act was

the only competent forum for claims of ejectment on fulfillment of the

conditions enumerated in the Rent Act. That the civil court was divested of

jurisdiction to take cognizance and pass a decree for ejectment of the tenant.

The objection was overruled by the executing court and further the revision

filed by the tenant was dismissed by the High Court. Simultaneously, he

also filed a writ petition under Article 227 which was also dismissed.

Against the dismissal of the writ petition under Article 227 the appeal was

filed in this Court. It may be mentioned that a issue regarding the

jurisdiction of the civil court to try a suit for ejectment was framed and

decided in favour of the landlord in the civil suit. Tenant had also been

divested of the possession in execution of the decree passed by the civil

court. This Court after exhaustively referring to the number of previous

judgments of this court held that to a building let out and governed under the

Rent Act the only competent authority to pass the decree for ejectment was

the Rent Controller constituted under the Rent Act and the civil court lacked

the inherent jurisdiction to take cognizance of the cause and pass a decree of

ejectment therein. It was further held that objection to the execution of the

decree being a nullity having been passed by a court lacking inherent

jurisdiction could be raised in execution proceedings and the finding

recorded in decree that the civil court had the jurisdiction would not operate

as res judicata. It was held:

"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. A decree

passed by a court without jurisdiction over

the subject matter or on other grounds which

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goes to the root of its exercise or

jurisdiction, lacks inherent jurisdiction. It is

a coram non judice. A decree passed by

such a court is a nullity and is nonest. Its

invalidity can be set up whenever it is

sought to be enforced or is acted upon as a

foundation for a right, even at the stage of

execution or in collateral proceedings. The

defect of jurisdiction strikes at the authority

of the court to pass a decree which cannot be

cured by consent or waiver of the party.."

[Emphasis supplied]

{Para 26}

In para 27, it was further observed:

"In the light of this position in law the

question for determination is whether the

impugned decree of the civil court can be

assailed by the appellant in execution. It is

already held that it is the Controller under

the Act that has exclusive jurisdiction to

order ejectment of a tenant from a building

in the urban area leased out by the landlord.

Thereby the civil court inherently lacks

jurisdiction to entertain the suit and pass a

decree of ejectment. 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 a 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."

[Emphasis supplied]

Appeal was allowed. Since the possession had already been taken in

execution of the decree the Court ordered restoration of the possession to the

tenant and thus observed:

"This Court would relieve the party from

injustice in exercise of power under Article

136 of the Constitution when this Court

noticed grave miscarriage of justice. It is

always open to the appellant to take aid of

Section 144 CPC for restitution. Therefore,

merely because the decree has been

executed, on the facts when we find that

decree is a nullity, we cannot decline to

exercise our power under Article 136 to set

at nought illegal orders under a decree of

nullity. The appeal is accordingly allowed.

But in the circumstances parties are directed

to bear their own costs."

This decision was later on followed by this Court in Urban

Improvement Trust vs. Gokul Narain 1996 (4) SCC 178. We need not refer

to the earlier decisions of this Court taking the same view which have been

referred to and find mentioned in Sushil Kumar Mehta's case (supra).

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In the present case because of the operation of Section 14 of the Act

the only authority to pass a decree for ejectment of the tenanted premises is

the Rent Controller appointed under the Act and Section 50 of the Act

specifically bars the jurisdiction of the civil court to entertain any suit or

proceeding in so far as it relates to the eviction of any tenant from the

premises which were covered by the Delhi Rent Control Act. The civil court

lacked the inherent jurisdiction to take cognizance of the cause and to pass a

decree. Challenge to such a decree on the ground of nullity could be raised

at any later stage including the execution proceedings. Tenancy of the

building was governed by a special Act and therefore the decree passed by

the civil court was a nullity and therefore inexecutable. Judgment-debtors

had not filed their written statement in the civil court and no issue regarding

the jurisdiction of the civil court to try the suit was framed. Tenant in the

special leave petition in this Court raised the contention that the eviction

decree passed by the civil court could not be executed against them. This

Court refused to go into that question as it was not the subject matter of the

order under appeal. It was left open to the judgment-debtors to raise this

ground before the appropriate forum, if available to them under law. The

only forum where the judgment-debtors could raise the objection regarding

the executability of the decree was in the execution proceedings which they

did. Since the jurisdiction of the civil court was barred, the decree passed by

it was a nullity and the judgment-debtors could successfully raise objection

regarding the executability of such a decree. The executing court erred in

holding that judgment-debtors could not raise the objection to the

executability of the decree being nullity having been passed by a court

lacking inherent jurisdiction to do so. This Court in Gian Devi Anand's case

(supra) did not lay down any new law but only interpreted the existing law

which was in force. As was observed by this Court in Lily Thomas's case

(supra) the interpretation of a provision relates back to the date of the law

itself and cannot be prospective of the judgment. When the court decides

that the interpretation given to a particular provision earlier was not legal, it

declares the law as it stood right from the beginning as per its decision. In

Gian Devi Anand's case (supra) the interpretation given by the Delhi High

Court that commercial tenancies were not heritable was overruled being

erroneous. Interpretation given by the Delhi High Court was not legal. The

interpretation given by this Court declaring that the commercial tenancies

heritable would be the law as it stood from the beginning as per the

interpretation put by this Court. It would be deemed that the law was never

otherwise. Jurisdiction of the civil court has not been taken away by the

interpretation given by this Court. This Court declared that the civil court

had no jurisdiction to pass such a decree. It was not a question of taking

away the jurisdiction it was the declaration of law by this Court to that

effect. The civil court assumed the jurisdiction on the basis of the

interpretation given by the High Court in Gian Devi Anand's case, which

was set aside by this Court.

For the reasons stated above, the appeal is accepted. The order passed

by the High Court as well as the executing court regarding the executability

of the decree passed by the civil court are set aside. It is held that the

jurisdiction of the civil court to pass the decree for ejectment was barred. A

decree passed by a Court having no jurisdiction over the subject matter

would be a nullity and the judgment-debtor can object to the execution of

such a decree being a nullity and non est. Its invalidity can be set up

whenever it is sought to be enforced including the stage of execution of the

decree or any other collateral proceedings. We are conscious of the fact that

it would work a great hardship on the respondent-decree holder who would

not be able to reap the benefit of the decree passed in his favour having won

at all the stages but the vagaries of law cannot be helped. Accordingly,

appeal is accepted. Orders of the High Court and the executing court are set

aside. It is held that the decree obtained by the decree-holder cannot be

executed being a nullity and non est. The parties are directed to bear their

own costs.

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