DORAISWAMI REDDY Vs. M R GOVINDA NAIDU
HIGH COURT OF ANDHRA PRADESH
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(1.) The sole point that arises for determination in the Civil Revision petition is whether the decree passed in pursuant of compromise entered into between the parties in an eviction petition filed by the landlord, the petitioner herein, to evict the tenants, the respondents, under the provisions of section 10 of the Andhra Pradesh Buildings, (Lease, Rent and. Eviction) Control Act. 1960 (herein after referred to as" the "Act") is a nullity and therefore not executable. The matter has arisen under the following circumstances : The petitioner filed a petition under section 10 of the Act against the respondents foe eviation of a building on two grounds, viz., (1) he requires the building for starting a business of his own and (2) the respondents committed wilful default to payment of rent. The eviction petition was disposed of by the Rent Controller on a compromise entered into between the parlies. The order passed by the Rent Controller on 17-12-1968 is in the following terms; "Petition is allowed to terms of joint endorsement." Below the order the joint endorsement was extracted which runs thus:
"Both the parties agree that the respondent No.2 Sri A, Munirathnam Naidu who Is now the tenant in sole occupation of the suit premises as monthly tenant shall have two years time to vacate the suitpremises commencing from 1-1-1969. During the said period the 2nd respondent Sri A. Muniratbnam Naidu shall pay a monthly, rent of Rs. 100 (one hundred only) for the suitpremises. The rent so stipulated shall commence with effect from 1-1-1969. The rent for each month shall be paid on the 10th of the succeeding month i.e., the rent of January, 1969 shall be paid on or before 10th February, 1969 and similarly for the succeeding months till 31-12-1970. The tenant shall vacate and deliver vacant possession of the suit premises on1-1-1971. In default of the tenant (R-2) not so vacating, the petitioner shall be entitled to execute this order and recover vecant possession of the property through court. If the rent is not paid regularly the petitioner will be entitled to execute this order and take possession without reference to the two years, time stipulated, There is a sum of Rs. 500/-(Rupees five hundred only) as rental advance made to the petitioner. The said sum of Rs. 300/-(Rupee five hundred only) shall be returned to the second respondent, A. Munirathnam Naidu on his vacating the suit premises. Each party shall bear his costs of this petition".
(2.) After the expiry of the two years time on 31-12-1970, when the respodants rafused to vacate the building and put the petitioner in possession the petitioner took execution proceedings in the court of the District Munsif concerned to obtain possession of the building through court in terms of the compromise decree. The 2nd respondent resisted the execution proceedings alleging inter-alia among other things that the order of eviction pasted in pursuance of the compromise on 17-12-1968 by the Rent Controller is invalid, illegal 'and without jurisdiction as that order was passed by the Rent Controller without satisfying himself about the existence of the grounds on which the eviction of the building was sought by the petitioner. The contention was that without such a satisfaction the order of eviction is a nullity and therefore incapable of execution, In support of this contention reliance ins placed by the 2nd respondent before the executing -court on a decision of the Supreme Court in Kaushalya Devi v. K.L. Bansal which has arisoa under the Delhi and Ajmir Rent Control Act, 1952. Following that decision and an unreported decision of the court rendered by Parthasarathi. J. in C.R.P. Nos. 1490 and 1849 of 1968 dated 6-7-1970, the executing court held that the order passed by the Rent Controller is a nullity and therefore net executable. Aggrieved by that view taken by the executing court, the petitioner has preferred this Civil Revision Petition. Section 10 (1) of the Act reads that
"A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this sections or section 12 and 13."
(3.) It is provided under Section 10 (2) that
"A land lord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving ft reasonable opportunity of showing cause against the application is satisfied ' (i) .. ....... (ii) .. ....... (iii) .. ....... (iv) .. ....... (v) .. ....... (vi) .. ....... the Controller shall mak'e an order directing the tenant to put the land-lord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application." A combined reading of sab-section (1) and (2) of section 10 of the Act shows that a tenant can be evicted by means of an order passed by the Rent Controller and the Rent Controller shall not make any order directing the tenant to put the landlord in possession unlsss he is satisfied that any of the grounds mentioned in clauses (i) to (vi) of sub-section (2) it existing. Some other grounds also are mentioned in section 10 (3) (a), (b), (c), (d) and (e) under which the landlord can seek the eviction of nil tenant. Even here under section 10 (3) (e) it it provided that
"the Controller shall make an order directing the tenant to pat the landlord tit possession of the building only if he is satisfied that the claim of the land-lord is bona-fide," In the present case the petitioner sought the eviction of the respondents on two grounds, viz., that they committed willful default in payment of rent' and that be bona-fide requires the building for his own purpose. As provided under Section 10. the Rent Controller should not make an order of eviction unless he is satisfied that those two grounds or any of them existed. The order passed by the Rent Controller has been extracted above, fix-fade it does not show that the Rent Controller, after having satisfied himself abort the existence of the two grounds or any of them relied upon by the petitioner, passed that order. The order shows that on the basis of the joint endorsement made by the parties, the eviction was ordered as per the terms of the endorsement. It is true that the respondents consented to such an order and had the benefit of that order also as having continued in possession tot two years more as per the compromise entered into between the parties. The learned counsel for 'the petitioner-decree-holder has argued that a court executing a decree cannot go behind it, it can only construe the decree and not consider its merits and therefore the validity of the decree cannot be challenged in execution proceedings. That may be so where the decree is passed by a court having jurisdiction, though it may be a wrong decree. But that principle can have no application where the decree is a nullity and n onsst as having been passed by a court without any jurisdiction. But the question for consideration is whether the order of eviction passed by the Rent Controller can be said to be one with jurisdiction having regard to the terms of section 10 of the Act under which the Rent Controller is given power to past orders of eviction. With regard tp legality of orders passed without jurisdiction, the law is quite clear. If there is inherent lack of jurisdiction the proceedings are null and void and they can be attacked even in collateral proceedings without any need for preferring any appeal, revision or review against the same. But if there is merely an illegal or irregular exercise or assumption of jurisdiction, the course open to the parties is only by way of applet, revision or review. A reading of section 10 of the Act shows that power is given to the Rent Controller to pass orders of eviction only under certain circumstances and he is prohibited from passing any eviction ordsrs unlese those circumstances exist, viz., unless he is satisfied about the existence of any of the grounds mentioned in sections 10,12 and 13 he is prohibited from passing any orders of eviction. That means, there is no jurisdiction conferred on the Rent Coatroller to pass an eviction order unless he is satisfied about the existence of any one or the other of the grounds mentioned to those sections. Therefore, even with regard to eviction orders passed on the basis of compromise unless it can be said that apart from the compromise the Rent Controller has satisfied himself about the existence of one or the other grounds for eviction, it is not possible to say that the order passed is one with jurisdiction.;
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