Back
2015 Supreme(Cal) 763
IN THE HIGH COURT AT CALCUTTA
SOUMEN SEN, J.
Numazar Dorab Mehta and Others – Appellants
Versus
The Assam Company India Ltd. – Respondent
GA No. 3680 of 2014, EC No. 170 of 2014
Decided On : 08-10-2015
Advocate Appeared:
For the Appellants : Mr. Jayanta Kr. Mitra, Mr. Ranjan Bachawat, Mr. Dhruvo Ghosh, Mr. Sourav Ghosh, Mr. Arnab Basu Mullick.
For the Respondents: Mr. Anindya Kumar Mitra, Mr. Surojit Nath Mitra, Mr. Abhrajit Mitra, Mr. Sudip Deb, Mr. Sankarsan Sarkar, Mr. Kirit Zaveri.
A decree passed by a court without jurisdiction is a nullity and can be challenged at any stage, but the plea of lack of jurisdiction must be obvious and not require a detailed examination of facts and evidence.
Headnote:
THIKA TENANCY - DECREE - JURISDICTION - VALIDITY - CIVIL COURT - NULLITY - AMENDED DEFINITION - WEST BENGAL THIKA TENANCY (ACQUISITION AND REGULATION) ACT, 2001 - SECTION 2(14), 3, 21 - TRANSFER OF PROPERTY ACT.
Fact of the Case:
Decree holder's execution of a decree passed in a suit for recovery of possession upheld by the Division Bench and the Supreme Court was resisted by the judgment debtor, alleging that the decree was a nullity as the defendant had become a thika tenant under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, as amended in 2010, which vested the property in the State, ousting the jurisdiction of civil courts.
Finding of the Court:
1. The plea of thika tenancy was not raised in earlier proceedings, indicating an abandonment of such a plea. 2. The definition of "thika tenant" under the 2001 Act distinguishes between the owner of the land and the owner of the structure. The lease deed did not indicate that the defendant was a thika tenant at the time of the 1981 Act or subsequently. 3. The defendant's failure to raise the plea of thika tenancy earlier barred it by constructive res judicata. 4. The civil court was competent to decide the matter at the time of filing the suit, and any grievance by the execution of the decree would lie with the State Government, not the judgment debtor. 5. The defendant's application to the Thika Controller after the dismissal of the special leave petition and the timing of the application suggested an ulterior motive to create a cause of action for the present application. 6. The defendant could not raise a new plea that was available during the trial, and there was no patent lack of jurisdiction of the civil court. 7. The objection to the description of the suit property was a stratagem to delay eviction and was dismissed.
Issues: 1. Whether the defendant became a thika tenant under the amended definition in the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, ousting the jurisdiction of civil courts. 2. Whether the plea of thika tenancy could be raised at the execution stage to nullify the decree passed in the suit. 3. Whether the defendant was estopped from raising the plea of thika tenancy due to its conduct and failure to raise it earlier. 4. Whether the description of the suit property was sufficient or required rectification.
Ratio Decidendi: 1. The definition of "thika tenant" under the 2001 Act distinguishes between the owner of the land and the owner of the structure. The lease deed did not indicate that the defendant was a thika tenant at the time of the 1981 Act or subsequently. 2. The defendant's failure to raise the plea of thika tenancy earlier barred it by constructive res judicata. 3. The civil court was competent to decide the matter at the time of filing the suit, and any grievance by the execution of the decree would lie with the State Government, not the judgment debtor. 4. The defendant's application to the Thika Controller after the dismissal of the special leave petition and the timing of the application suggested an ulterior motive to create a cause of action for the present application. 5. The defendant could not raise a new plea that was available during the trial, and there was no patent lack of jurisdiction of the civil court. 6. The objection to the description of the suit property was a stratagem to delay eviction and was dismissed.
Final Decision: The application filed by the judgment debtor was dismissed with costs, upholding the validity of the decree passed by the civil court.
JUDGMENT :
SOUMEN SEN, J.
1. The misery of the decree-holder starts after a decree passed is what manifested in this proceeding.
2. A decree passed in a proceeding initiated under Chapter 13A of the Rules on the Original Side of this Court upheld by the Hon’ble Division Bench and a Special Leave Petition preferred by the judgment debtor against such decree was dismissed by the Hon’ble Supreme Court, still, the decree could not be executed in view of this ingenuous application filed by the defendant judgment debtor alleging that the decree is a nullity.
3. When the application for execution of the decree of the Appellate Court was filed before this Court the judgment debtor came up with a plea of thika tenancy to resist a decree which has since affirmed and has attained finality.
4. The judgment debtor was a lessee in respect of a very valuable property in the metropolitan city of Calcutta under a lease dated 17th of April, 1984 with effect from 1st February, 1980 for a period of 21 years.
5. The plaintiffs instituted a suit for recovery of possession after serving a notice under Section 106 of the Transfer of Property Act. The defendants have taken all possible objections that were available to the defendant in resisting the said application. The defendant, however, was unsuccessful. Both the learned Single Judge and the Hon’ble Division Bench upheld the contention of the plaintiff and passed a decree for eviction.
6. The said decree was unsuccessfully challenged before the Hon'ble Supreme Court. The Special Leave Petition was dismissed in limine.
7. Mr. Anindya Mitra learned Senior Counsel appearing on behalf of the judgment debtor submits that although in the earlier proceedings a plea was not taken that the defendant is a thika tenant but having regard to the provisions of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, the defendant has become a thika tenant. This is a statutory protection that the defendant is entitled under the law. It is argued that by reason of the provisions of the said Act the State has become the landlord as the said property has vested in the State by operation of law. It is submitted that it is immaterial as to whether at the earlier stages the defendant has taken a plea of thika tenancy. Mr. Mitra has referred to the definition of a thika tenant and the amendment made to the said definition on 1st November, 2010. It is submitted that at the time of commencement of the proceeding that is to say in 2006 when the suit was filed the plaintiff could have proceeded with the said suit. However, by reason of the amendment to the definition of thika tenant by the West Bengal Act, XXV of 2010 which has come into effect on and from 1st November, 2010 the defendant becomes a thika tenant. Mr. Mitra has emphasized and drawn my attention to the definition of thika tenant under Section 2 Sub-Section 14 and the parenthesis which contains the amendment and submitted that by the amendment pucca structure has been included in the said definition and by reason thereof this property is taken out from the purview of the Transfer of Property Act or West Bengal Premises Tenancy Act and the defendant becomes a thika tenant under the State. Although Mr. Mitra has difficulty in explaining the timing of filing an application before the thika controller in ascerting his right as a thika tenant after the dismissal of the Special Leave Petition and only on 25th November, 2014, however, it is submitted that it is for the thika controller to decide the said issue. Moreover, if a decree is a nullity then such plea can be taken and raised at any point of time and the executing Court is required to adjudicate such issue and ignore the decree of a Court if the executing Court is of the opinion that the said judgment and/or decree was passed without jurisdiction. It is submitted by reason of the amendment of the definition of thika tenant after November, 2010 the Civil Court has no jurisdiction to try and determine the
