The main legal point established in the judgment is that a decision without jurisdiction is a nullity and cannot operate as res judicata. The court also clarified that the dismissal of a suit for want of notice under Section 80 of the Code of Civil Procedure renders the decision on other issues non-binding.

Sahidullah Munshi, J.

1. This second appeal at the instance of the defendant is directed against the judgment and decree dated 21st July, 2004 passed in Title Appeal No. 106 of 2002 affirming those dated 29th April, 2002, passed by the learned Civil Judge (Junior Division), 1st Court, Howrah, in Title Suit No. 9 of 1999.

2. The instant appeal was admitted by a Division Bench of this Court by an order dated 8th June, 2005 and an order of stay of all further proceeding in Title Execution Case No. 20 of 2004 pending in the Court of the Civil Judge (Junior Division), 1st Court, Howrah, was granted on condition that the appellants would go on depositing an amount equivalent to the rent with the Executing Court every month within fifteenth day of the month next following and first such for the month of June, 2005 was directed to be deposited by 15th of July, 2005. The appellants were also directed to pay all arrears of rent, if any, within 15th of July, 2005 before Executing Court.

3. While admitting the appeal, the Division Bench formulated the question of law on which the appeal is to be heard. The said question is as follows:

“Whether the learned Court of appeal below committed substantial error of law in holding that the present appellants got protection under Section 17(4) of the West Bengal Premises Tenancy Act in the earlier suit being Title Suit No. 141 of 1988 by totally overlooking the fact that the suit was dismissed as not maintainable for want of a valid notice under Section 80 of the Code of Civil Procedure?”

4. Before dealing with the question as formulated by this Court earlier, a little background is necessary to decide this second appeal. The defendant no. 1/appellant before this Court is a monthly tenant in respect of the suit premises under the plaintiff/respondent. The defendant no. 1 was a habitual defaulter in payment of rent and got protection under Section 17(4) of the West Bengal Premises Tenancy Act in a previously instituted suit being Title Suit No. 141 of 1988 filed by the plaintiff. The said suit was dismissed holding that provisions of Section 80 of the Code of Civil Procedure (hereinafter to be referred as the ‘said Code’) read with Order XXVII, Rule 5A was not complied with.

5. After dismissal of the said suit, defendant no. 1 again failed to pay rent since September, 1997. Eviction notice was served on the defendant no. 1 but he did not quit and vacate in compliance with the notice to quit. Accordingly, the present suit was filed. Defendants entered appearance and contested the suit by filing written statement. Issues are framed and one of the issues was on the question of default – is the defendant no. 1 a defaulter in payment of rent? Such issue was placed in Issue No. 2. Issue No. 2 was decided by the trial Court holding that while deciding the proceeding under Sections 17(4) and 17(2A) of the West Bengal Premises Tenancy Act, the defendant no. 1 was adjudged a defaulter in payment of rent. Trial Court held that the defendant/appellant was defaulter since September, 1997 to February, 1998. Therefore, on consideration of the material on record and the evidence led by the plaintiff, Court decided Issue No. 2 in favour of the plaintiff and held that the defendant was a defaulter and he was liable to be evicted. Suit was decreed against which an appeal was preferred and by the impugned judgment and decree the learned Appellate Court below has affirmed the judgment and decree of the learned trial Court holding that the defendant/tenant was a defaulter. While holding that the defendant/tenant is a defaulter, both the learned Courts below have concurrently found that in a previously instituted suit being Title Suit No. 141 of 1988 the defendant filed an application under Section 17(4) of the West Bengal Premises Tenancy Act and obtained a protection against eviction on the ground of default. Provisions of Section 17(4) of the West Bengal Premises Tenancy Act say that if a tenant makes deposit or pa