MOHAMMAD ISHA HAQUE Vs. MOHAMMAD AZADUR RAHMAN HAZARIKA

JUDGEMENT

(1.) In this petition, the petitioner has invoked the power of this Court under Art. 227 of the Constitution of India as well as under Section 115 of the Civil Procedure Code against the orders dated 5-3-1990 passed by the Ist Assistant District Judge, Kamrup, Guwahati in Miscellaneous Appeal No. 33 of 1989, dated 18-5-1989 passed by the Sadar Munsiff, Guwahati in Misc. (J) Case No. 84/87 arising out of Title Suit No. 184/87 dismissing the petition for setting aside the ex parte decree. The petitioner has also challenged the order dated 11-9-1987 passed by the Munsiff, Guwahati ex parte decreeing the suit.

(2.) The fact for the purpose of this case are as follows :-

(3.) I have heard both sides. Mr. N. M. Lahiri, learned counsel appearing on behalf of the petitioner submits that the impugned orders are without jurisdiction and liable to be set aside. His submissions are two fold. First that there being no proper and acceptable evidence to show that the summons were duly served on the petitioner and therefore, Courts below ought to have set aside the ex parte decree. He further submits that the petitioner had already filed a suit for declaration of his right, title and interest over the suit land and the house standing thereon and obtained a temporary injunction restraining the defendants i.e. the first opposite party from disturbing petitioner's possession. This fact was completely suppressed by the opposite party and when this matter was brought to the notice of the Courts below the Courts below completely ignored that aspect of the matter. Hence, according to him the impugned order passed by the Munsiff and affirmed by the first Appellate Court was nothing but refusal to exercise jurisdiction vested on them and, therefore, the impugned orders dated 5-3-1990 and 18-5-1989 are liable to be set aside and quashed. Secondly, the impugned decree passed on 11-9-1987 is a nullity. In fact, it is non est and, therefore, this is not binding on the petitioner. This Court in exercise of the power under Art. 227 should set aside the said decree. According to him in a suit fox decree under Assam Urban Areas Rent Control Act, the Court has jurisdiction to pass a decree only when he is satisfied about the existence of any of the conditions mentioned in Section 5 of the said Act. There being no discussion about those conditions and the impugned decree having not indicated the existence of any of the conditions, the Court had no jurisdiction to pass decree for eviction under the said Act. In fact such a decree is a nullity and that can be challenged at any stage and in any forum. Mr. J. N. Sarma, learned counsel for the first opposite party, on the other hand, supports the impugned orders including the decree. Mr. Sarma submits that the findings regarding service of summons on the defendants arrived at by the trial Court as well as the First Appellate Court are the findings concluded by facts and therefore, this Court in revisional jurisdiction may not interfere with such findings.