2006 Supreme(Cal) 611

High Court Of Calcutta
Pinaki Chandra Ghose And Tapan Kumar Dutt, JJ.
SHREE SHREE GOPAL JEW - Appellant
Versus
JUMBO TRADERS PRIVATE LTD. - Respondent
EOS 8 Of 1985
Decided On : 09/19/2006

A decree passed by a Court of competent jurisdiction, on the basis of the admissions made by the defendant in their affidavit-in-opposition filed before the Court, cannot be treated as a nullity and is valid.

Headnote:

LETTERS PATENT APPEAL - JURISDICTION - NULLITY OF DECREE - TRANSFERRED SUIT - APPLICABILITY OF CHAPTER XIIIA OF ORIGINAL SIDE RULES, HIGH COURT, CALCUTTA - NOTICE TO QUIT - INTERPRETATION OF SECTION 111(H) OF TRANSFER OF PROPERTY ACT, 1882 AND SECTION 13(L)(J) OF WEST BENGAL PREMISES TENANCY ACT, 1956 - VALIDITY OF DECREE PASSED ON ADMISSION OF DEFENDANT - SERVICE OF WRIT OF SUMMONS - REGULARITY OF APPEARANCE OF ADVOCATE.

Fact of the Case:

Plaintiffs instituted a suit against the defendant in the Alipore court for the recovery of possession of the suit premises and mesne profit. The suit was transferred to the High Court and was renumbered as Extraordinary Suit No. 8 of 1985. On an application of the plaintiffs, the High Court appointed a Receiver in respect of the suit premises. On 5th September 1985, an application under Chapter XIIIA of the Original Side rules of the High Court was filed by the plaintiffs and a final judgment and decree was passed for eviction and/or ejectment in favor of the plaintiffs. The Receiver went to the suit premises to execute the decree but was resisted by Refugee Handicrafts, a sub-tenant in respect of the suit premises. Refugee Handicrafts filed an application for setting aside the decree. The applications were disposed of on 11th September 1986 by a common judgment, but two separate orders were passed. By an order, the plaintiffs' application was allowed and the Refugee Handicrafts were allowed to take vacant possession of the premises, and by the order, the application of Refugee Handicrafts was dismissed. Refugee Handicrafts preferred an appeal and the appeal was dismissed on contest. The plaintiffs again requested the Receiver to obtain vacant possession of the suit premises. Refugee Handicrafts preferred a special leave petition and the Hon'ble Supreme Court was pleased to set aside the order under appeal and requested the Hon'ble Court to admit the appeal and dispose of the same in accordance with law. The Hon'ble Supreme Court clarified that there will be no stay pending appeal and that the decree can be executed by the plaintiffs in accordance with law. The plaintiffs again requested the Receiver to obtain vacant possession of the suit premises. Refugee Handicrafts obstructed the Receiver and the Receiver could not take possession. Plaintiffs thereafter filed an application praying for a direction on the police authorities to render all assistance in the matter of execution of the decree. The Executing Court held that the decree was a nullity and as such inexecutable. Plaintiffs filed a special leave petition from the said order. The special leave petition was disposed of allowing the appellant to file a Letters Patent Appeal within a fortnight.

Finding of the Court:

The decree passed by the Court on the basis of the admissions made by the defendant in their affidavit-in-opposition filed before the Court was valid and could not be treated as a nullity. The Court had jurisdiction to pass such a decree under Chapter XIIIA of the Original Side Rules, High Court, Calcutta, as the notice to quit was given by the tenant to the landlord and the provisions of Section 111(h) of the Transfer of Property Act, 1882 and Section 13(l)(j) of the West Bengal Premises Tenancy Act, 1956 were applicable. The irregularities alleged regarding the service of the writ of summons were not found to have any bearing on the question of jurisdiction or affect the validity of the decree. The Refugee Handicrafts, not being a party to the suit, had no right to raise such points at this stage.

Issues: 1. Whether the decree passed by the Court was a nullity? 2. Whether Chapter XIIIA of the Original Side Rules, High Court, Calcutta, was applicable to the eviction suit where the landlord had given a notice? 3. Whether the provisions of Section 111(h) of the Transfer of Property Act, 1882 and Section 13(l)(j) of the West Bengal Premises Tenancy Act, 1956 were applicable to the case?

Ratio Decidendi: 1. A decree passed by a Court of competent jurisdiction, cannot be denuded of its efficacy by any collateral attack or in incidental proceedings. The lack of jurisdiction of the Court passing the decree must be patent on its face in order to enable the Executing Court to take cognizance of such a nullity based on want of jurisdiction. Else the normal rule that an Executing Court cannot go behind the decree must prevail. 2. Chapter XIIIA of the Original Side Rules, High Court, Calcutta, applies to an eviction suit where the notice to quit has been given by the tenant to the landlord, as the provisions of Section 111(h) of the Transfer of Property Act, 1882 and Section 13(l)(j) of the West Bengal Premises Tenancy Act, 1956 are applicable to such cases.

Final Decision: The appeal was allowed and the order passed by the Executing Court was set aside. There was an order in terms of the prayers made in the Master's Summons dated 20th September 1996.