2003 Supreme(SC) 157

2003(1) Supreme 946
SUPREME COURT OF INDIA
(From Delhi High Court)
Syed Shah Mohammed Quadri & Ashok Bhan, JJ.
Sarwan Kumar & Anr. -Appellants
versus
Madan Lal Aggarwal -Respondent
Civil Appeal No. 1058 of 2003
(Arising out of SLP (C) No. 18553 of 2001)
Decided on 6-2-2003
Counsel for the Parties :
For the Appellants : M.L. Verma, Sr. Advocate, Sudhir Nandrajog, Virendra Rawat, Advocates.
For the Respondent : S.K. Mishra, Sr. Advocate, K.K. Pathania, Shail Kumar Dwivedi, P. Sengupta, Advocates.

VERY IMPORTANT POINT
A decree for ejectment passed by a Civil Court qua legal heirs of a deceased statutory tenant for a commercial tenancy in the State of Delhi before the declaration of law by Supreme Court in Gian Devi Anand v. Jeevan Kumar, 1985 Suppl. (1) SCR 1, that such a tenancy is heritable, is not executable and the judgment-debtors can successfully object to the execution of the decree on the ground that same was passed by a court locking inherent jurisdiction and therefore inexecutable.

Headnote:Delhi Rent Control Act, 1958-Section 2(1) 14 and 50-CPC 1908-Order 9 Rule 13, Order 21 and Section 47-Constitution of India-Doctrine of Prospective overruling-Suit for possession against heirs of statutory tenant for commercial purpose-Decreed by Civil Court on ground it was not heritable-It attained finality-Execution applied-Supreme Court held in Gian Devi v. Jeevan Kumar, 1985(1) SCR 1 that statutory tenancy for commercial premises under Delhi Rent Control Act, 1958 was heritable-Objection taken that decree of Civil Court was a nullity-Rejected on ground that law declared by Supreme Court is prospective-Appeal to Supreme Court-Whether High Court was right? (No)-Appeal allowed-Case law discussed.

       Held : 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. (Para 17)

       Relying on 1990(1) SCC 193 followed in 1996(4) SCC 178, Held : 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. (Para 21)

       Held consequently : 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. (Para 22)