Back
2004(6) Supreme 194
SUPREME COURT OF INDIA
(From Bombay High Court)
R.C. Lahoti, CJI., G.P. Mathur & C.K. Thakker, JJ.
Balvant N. Viswamitra and Ors. -Appellants
versus
Yadav Sadashiv Mule (D) through Lrs. and Ors. -Respondents
Civil Appeal No. 5617 of 1999
Decided on 13-8-2004
Counsel for the Parties :
For the Appellants : V.T. Lulia, Mukesh Viswamitra, Raja Chatterjee, G.S. Chatterjee, Advocates.
For the Respondents : V.N. Ganpule, Sr. Advocate, Satyajit Saha and Ms. V.D. Khanna, Advocates.
Held : From the facts narrated in the plaint as also from the deposition of plaintiff No. 2, as already narrated in the earlier part of the judgment, it is clear that the plaintiffs did their best to serve heirs and legal representatives of deceased Papamiya. They had sent notice by registered post which was returned unserved. Again, a notice was sent under certificate of posting which had not come back. It was, therefore, the case of the plaintiffs that the presumption would be that the notice was received by the defendants. Again, a notice was affixed on the suit premises. All these facts have been stated in the plaint. In the substantive evidence, plaintiff No. 2 had deposed that he had tried to get names of legal heirs of Ahmed, son of deceased Papamiya, but the plaintiffs could not get such information, names and addresses. He also stated that deceased Ahmed was staying at Bhandup on Bombay-Agra Road and, hence, he made enquiries at the Bhandup address but could not get the details about the heirs. The only alternative, thus left to the plaintiffs was to affix the notice on suit premises which was also done. It may be recalled at this stage that on the day of deposition of plaintiff No. 2 recorded on 25th March, 1980, the defendants were represented by an advocate Mr. Singh and plaintiff No. 2 was partly cross-examined. It was only after that date i.e. 25th March, 1980, that Mr. Singh had no instructions and he made prayer to the court on 18th June, 1980 allowing him to withdraw his appearance which was granted by the court and a decree was passed. In the circumstances, we are satisfied that the plaintiffs had made all attempts at their end to serve the defendants, but they could not be served in view of the facts stated and circumstances mentioned in the plaint as well in the substantive evidence of plaintiff No. 2 and the decree was passed by the trial court. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be null and void . In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings. (Paras 8 and 9)
All irregular or wrong decrees or orders are not necessarily null and void. An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings. (Para 14)
From the record, it is also clear that defendants were aware of the proceedings and they had engaged Mr. G.R. Singh, advocate who was appearing in the matter. On 25th March, 1980, he was present when plaintiff No. 2 was examined on oath and was partly cross-examined by Mr. Singh. Thereafter, with the permission of the court, Mr. Singh withdrew his appearance because he had no instructions in the matter from the defendants and a decree was passed. In our considered opinion, such a decree, by no stretch of imagination, can be described nullity. If the decree is not null and void, as per settled law, appropriate proceedings will have to be taken by the persons aggrieved by such decree. (Paras 18 and 19)
Certainly. Based on the provided legal document, here are the key points:
All irregular or incorrect decrees or orders are not necessarily null and void. An erroneous or illegal decision that is not void cannot be objected to in execution or collateral proceedings (!) (!) .
A decree passed by a court lacking inherent jurisdiction is considered void ab initio, meaning it is null and has no legal effect from the outset. Such a defect strikes at the very authority of the court to pass the decree and can be challenged at any stage, including during execution proceedings (!) (!) .
There is a clear distinction between a decree that is void and one that is merely incorrect, irregular, or not in accordance with law. A decree that is not void can be challenged only through proper legal proceedings, not collateral attack (!) (!) .
A decree passed by a court with jurisdiction, even if it is erroneous in law or fact, remains valid and binding until it is set aside through appropriate proceedings. Errors in exercise of jurisdiction do not render a decree null (!) (!) .
A decree is considered void if the court has usurped jurisdiction it did not possess, which is a fundamental defect. If the defect is merely procedural or involves a mistake in law, the decree remains valid unless challenged through proper channels (!) (!) .
The remedy for a person aggrieved by a decree that is not void but illegal or irregular is to seek its reversal through appeal or other legal proceedings. Collateral attacks or objections in execution are not valid for decrees that are not void (!) (!) .
Proper service and notice are essential for the validity of proceedings. However, even if service attempts fail, courts may presume receipt of notices under certain circumstances, especially if notices are properly sent and affixed as per procedural requirements (!) (!) .
The non-joinder of parties who are not necessary parties does not render a decree null and void. Such a decree remains valid unless the party claiming to be a necessary party was not adequately notified or involved in the proceedings (!) (!) .
Orders passed by courts with proper jurisdiction, even if flawed procedurally or containing errors, are generally binding and enforceable unless explicitly declared void for lack of jurisdiction (!) (!) .
The distinction between a decree that is void and one that is merely illegal or irregular is critical. Only a decree that is void due to lack of jurisdiction can be challenged directly and immediately, while others must be challenged through appropriate legal channels (!) (!) .
The courts have emphasized that a decree passed by a competent court, even if erroneous, remains effective unless it is set aside through proper legal procedures. Collateral attacks or objections in execution are generally not permissible unless the decree is void (!) (!) .
In the specific case discussed, the court found that the decree was not null and void despite procedural issues, and therefore, the execution of the decree was valid. The High Court's decision to declare the decree void was reversed, reaffirming the validity of the original proceedings (!) (!) .
Would you like a summary of how these principles might apply to a particular situation or further clarification?
JUDGMENT
Thakker, J.-The present appeal is directed against the judgment and order passed by the High of Bombay on January 14, 1998 in Civil Writ Petition No. 3384 of 1986. By the said order, a single Judge of the High Court, while exercising supervisory jurisdiction under Article 227 of the Constitution, held the decree sought to be executed against the petitioners-respondents herein - as void ab initio.
2. To appreciate the controversy raised in this appeal, few relevant facts may be stated:
There was a piece of land bearing Survey No. 888 admeasuring 85 x 35 sq. feet at village Kanjur, Bombay. The land was let out by Nagendra Vishwamitra, father of the appellants to one Papamiya. The said Papamiya constructed hut over the land and was paying rent to the landlord. It was the case of the landlord that the tenant did not pay rent regularly and was in arrears of rent from November 01, 1963 to October 31, 1976 i.e. for 13 years. Since Papamiya died, proceedings were initiated against heirs of deceased Papamiya. According to the appellants, a notice was issued to heirs and legal representatives of Papamiya terminating the tenancy by a registered post but the heirs could not be served and the notice came back. Again, a notice was sent under certificate of posting which had not come back. Thus, there was a presumption of service of notice. It was also the case of the appellants that on the outer-door of the suit premises, a copy of the notice was affixed. On 4th April, 1977, a suit for possession was filed by the plaintiffs-appellants against heirs and legal representatives of deceased Papamiya in the Court of Small Causes, Bombay, being R.A.E. Suit No. 1992 of 1977. On 25th March, 1980, the case was listed for recording evidence. One Mr. G.R. Singh, advocate was appearing for the defendants. On that day, evidence of plaintiff No. 2 was recorded. He stated that deceased Nagendra Vishwamitra was his father and the plaintiffs were owners of the property. It was also stated by him that Papamiya had a son by name Ahmed and a notice was sent to him by registered post. However, the notice packet came back with remark expired . Deceased Ahmed had legal heirs, but plaintiff No. 2 did not know their names. They were residing at Bhandup on Bombay-Agra road and not in the suit premises. He further stated that he made enquiries as to heirs and legal representatives of deceased Ahmed both at Kanjur and Bhandup addresses, but could not get sufficient information. He, therefore, filed a suit against heirs and legal representatives of Papamiya. He also produced a packet containing the notice which was returned with remark "not known". He tendered the certificate by which notice was sent under certificate of posting. According to him, that letter was not returned. A certificate and packet were produced by him in his evidence. He also stated that a notice was pasted outside the suit premises.
3. The plaintiff No. 2 was partly cross-examined by Mr. Singh. In the cross-examination, he stated that the notice was pasted at both the addresses i.e. Kanjur as well as Bhandup. The notice was also affixed on the property let out to the defendant. The case was thereafter adjourned. On 18th June, 1980, when the matter was called out for further hearing, Mr. Singh stated that he had no instructions from the defendants in the matter who had remained absent though intimated about the date by registered post as also by certificate of posting. He, therefore, requested the court to permit his withdrawal from appearance which was granted by the court. Since the plaintiff had adduced evidence and the defendants had remained absent, according to the court, the evidence of the plaintiff had gone unchallenged. In the plaint also, it was specifically stated by the plaintiff that the defendant was in arrears of rent for more than six months and that had remained uncontroverted and unchallenged. In the circumstances, the trial court held that the plaintiffs were entitled to
The main legal point established in the judgment is the binding effect of the settlement between the parties, the waiver of the right to seek re-employment by the workmen, and the entitlement of the ....
A lockout is justified if it is declared in response to an illegal strike or a strike that is in breach of a settlement or award.
The combination of eyewitness testimonies, recovery of the weapon used, and forensic examination results can establish guilt in criminal cases, even based on circumstantial evidence.
The conviction of an accused person under Section 27(3) of the Arms Act is not permissible in law if the accused is also charged with committing murder under Section 302 of the Indian Penal Code.
The court can enhance compensation based on the deceased's income and family dependency, and adjust the multiplier used by the Tribunal if found unjustified.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
