Hafizullah vs Puran Chand Jain - 2013 Supreme(MP) 384

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2013 Supreme(MP) 384

HIGH COURT OF MADHYA PRADESH
K.K. Lahoti, Ag.C.J. and Smt. Vimla Jain J.
Hafizullah v. Puran Chand Jain and another
First Appeal No.537 of 1999 (Jabalpur) : against the judgment and decree of XIth Additional Judge to the Court of District Judge, Jabalpur, passed in Civil Suit No.39-A of 1999; Decided on 12.7.2013.

Advocates:
Appellant present in person;
Ravish Agarwal with Koustubh Jha for respondents.

Headnote:(1) Accommodation Control Act, 1961 (M.P.) -- S.12(1)(f) -- Civil P.C., 1908 -- O.2 R.2 -- subsequent suit cannot be filed to set aside a finding in the previous decree unless the earlier decree is without jurisdiction or obtained by playing fraud.
       Held : Though a plethora of judgments were cited by the appellant, but in none of the judgment it has been held that to set aside a finding in the previous judgment (may be wrong on merits), a subsequent suit can be filed. Though a subsequent suit can be filed where a judgment and decree passed in earlier suit is without jurisdiction or the Court was having inherent lack of jurisdiction, but if the suit has been decided by a competent Court of jurisdiction, merely the findings recorded in the earlier suit were not suitable to the plaintiff or it can be stretched to the extent that the aforesaid findings were not correct, even then no suit could have been filed for setting aside the aforesaid finding recorded in the earlier suit. Only in a case where the decree was passed by a Court having no jurisdiction or it was passed by playing fraud or on settled principles of law, earlier decree can be set aside, but in absence of aforesaid, a subsequent judgment and decree cannot be set aside merely on the ground that the earlier judgment was not correct. (2004)1 SCC 287 followed. AIR 2011 SC 1989, AIR 2006 SC 2844, AIR 2011 SC 1893, AIR 2001 SC 2469, (1990)4 SCC 286, AIR 1995 SC 2001, AIR 2010 SC 1937, AIR 2010 SC 1440 and (2010)3 SCC 353 referred to.
       (2) Accommodation Control Act, 1961 (M.P.) -- S.12(1)(f) -- Civil P.C., 1908 -- O.2 R.2 -- tenant purchased a portion of the suit accommodation -- became co-owner of the same -- cannot be evicted until and unless the joint property is partitioned. (1996)6 SCC 373 followed. (2006)1 SCC 125 referred to. [Para 17
       ¼1½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ & /kkjk 12¼1½¼p½ & flfoy izfdz;k lafgrk] 1908 & vk-2 fu-2 & iwoZ fMdzh esa fu”d”kZ vikLr djus ds fy, i’pkr~orhZ okn rc rd izLrqr ugha fd;k tk ldrk tc rd iwoZ fMdzh vf/kdkfjrk jfgr u gks ;k diV )kjk izkIr u dh xbZ gksA

       vfHkfu/kkZfjr % ;|fi vihykFkhZ )kjk cgqr lkjs fu.kZ; mn~/k`r fd, x, ijarq fdlh Hkh fu.kZ; esa ;g vfHkfu/kkZfjr ugha fd;k x;k fd iwoZ fu.kZ; esa fu”d”kZ dks ¼tks xq.kkxq.k ds vk/kkj ij xyr gks ldrk gS½ vikLr djus ds fy, i’pkr~orhZ okn izLrqr fd;k tk ldrk gSA ;|fi tgk¡ iwoZ okn esa ikfjr fu.kZ; rFkk fMdzh vf/kdkfjrk jfgr gS ;k U;k;ky; esa vf/kdkfjrk dk varfufgZr vHkko gks ogk¡ i’pkr~orhZ okn izLrqr fd;k tk ldrk gS] ijarq ;fn okn vf/kdkfjrk ds l{ke U;k;ky; )kjk fofuf’pr fd;k x;k gS] ek= blfy, fd iwoZ okn esa vfHkfyf[kr fu”d”kZ oknh ds fy, mi;qDr ugha Fks ;k bls bl foLrkj rd foLrkfjr fd;k tk ldrk gS fd iwoksZDr fu”d”kZ lgh ugha Fks] rc Hkh iwoZ okn esa vfHkfyf[kr iwoksZDr fu”d”kZ dks vikLr djus ds fy, dksbZ okn izLrqr ugha fd;k tk ldrk FkkA dsoy ml ekeys esa tgk¡ fMdzh vf/kdkfjrk u j[kus okys U;k;ky; )kjk ikfjr dh xbZ gks ;k bls diV ;k fof/k ds fu;r fl)karksa ij] iwoZ fMdzh vikLr dh tk ldrh gS ijarq iwoksZDr ds vHkko esa] i’pkr~orhZ fu.kZ; rFkk fMdzh dsoy bl vk/kkj ij vikLr ugha fd, tk ldrs fd iwoZ fu.kZ; lgh ugha FkkA ¼2004½1 ,l lh lh 287 vuqlfjrA , vkb vkj 2011 ,l lh 1989] , vkb vkj 2006 ,l lh 2844] , vkb vkj 2011 ,l lh 1893] , vkb vkj 2001 ,l lh 2469] ¼1990½4 ,l lh lh 286] , vkb vkj 1995 ,l lh lh 2001] , vkb vkj 2010 ,l lh 1937] , vkj vkj 2010 ,l lh 1440 rFkk ¼2010½3 ,l lh 353 fufnZ”VA

       ¼2½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ & /kkjk 12¼1½¼p½ & flfoy izfdz;k lafgrk] 1908 & vk-2 fu-2 & vfHk/kkjh us okn LFkku dk ,d Hkkx dz; fd;k & mldk lgLokeh gqvk & mls csn[ky ugha fd;k tk ldrk tc rd fd la;qDr laifRr dk foHkktu u gks tk,A ¼1996½6 ,l lh lh 373 vuqlfjrA ¼2006½1 ,l lh lh 125 fufnZ”VA

       ¼iSjk 17½

JUDGMENT

Lahoti, Ag.C.J. -- 1. This appeal is directed under section 96 of the Code of Civil Procedure, 1908, assailing the judgment and decree dated 28.8.1999 passed by XIth Additional Judge to the Court of District Judge, Jabalpur in Civil Suit No.39-A/1999.

2. By the aforesaid judgment and decree, a suit filed by the appellant for declaration that the judgment and decree passed in earlier Second Appeal No.813/1995 (Hafizullah and another v. Smt. Shikhar Chand Jain and others) dated 12.5.1997 be declared as null and void and a decree of eviction be granted in favour of the appellant was dismissed. The trial Court has dismissed the suit on the ground that it was not maintainable, the trial Court was not jurisdiction to grant such a decree. On the aforesaid ground, the suit was dismissed.The trial Court further found that the judgment and decree passed on Second Appeal No.813/1995 dated 12.5.1997 was not against the settled principles of law and was not liable to be set aside. The appellant was not entitled for a decree of eviction under section 12(1)(f) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as ‘Act’ for short). The suit was also not maintainable under Order 2 rule 2 of CPC.

3. The appellant has challenged this judgment and decree on following grounds :

(a) That the judgment and decree passed in second appeal by the High Court could have been set aside by the trial Court. The trial Court was having jurisdiction to entertain the suit and to grant a decree. It is also submitted that the judgment and decree passed by this Court in Second Appeal No.813/1995 was without jurisdiction and a decree be passed, in this regard, in favour of the appellant by this Court.

(b) He has placed reliance to a series of decisions in support of his contention that a decree which was not passed in accordance with law, in the earlier suit could have been set aside in a subsequent suit. The judgment cited by the appellant are thus; Narmada Bachao Andolan v. State of Madhya Pradesh [AIR 2011 SC 1989], Union of India v. Manik Lal Banerjee [AIR 2006 SC 2844], State of U.P. and others v. Rekha Rani [AIR 2011 SC 1893], N.R. Narayan Swamy v. B. Francis Jagan [AIR 2001 SC 2469], Life Insurance Corporation of India v. India Automobiles and Co. and others [(1990)4 SCC 286], P.M.A. Metropolitan v. Moran Mar Marthoma [AIR 1995 SC 2001], Fuljit Kaur v. State of Punjab [AIR 2010 SC 1937], Y. Satyanarayan Reddy v. Mandal Revenue Officer, Andhra Pradesh [AIR 2010 SC 1440], S. Nagraj v. B.R. Vasudeva Murthy [(2010)3 SCC 353].

It is submitted by Shri Hafizullah, who is appearing in person (he is a practising Advocate of this Court), that the earlier judgment in per in curiam, so the suit of the appellant deserves to be decreed with mesne profit.

4. To appreciate the aforesaid contention it would be appropriate if the facts, as are pleaded in the plaint, are referred in short :

(a) The present suit was filed on 1.1.1998 before the trial Court for declaring that the finding in Second Appeal No.813/1995 decided on 12.5.1997 be declared as null and void ab initio and decree of eviction under section 12(1)(f) of the Act be granted in favour of the appellant for eviction and mesne profit.

(b) That the plaintiff had also filed an earlier suit for eviction bearing No.147/88 before IXth Civil Judge Class II Jabalpur under section 12(1)(f) of the Act against the tenant late Shikhar Chand Jain. Late Shikhar Chand Jain had obtained the suit accommodation by registered lease deed dated 1.5.1968 for a period of 10 years.

(c) The suit accommodation is known as “Qudrat Manzil” bearing Municipal No.667, 667/1 to 667/3 at Ward No.22 Kotwali, Jabalpur. After the death of Shikhar Chand Jain the respondents had inherited tenancy rights and were paying rent as per the lease deed, to the plaintiff.

(d) That during the pendency of earlier Suit No.147-A/1988 the respondent Inder Kumar Jain had purchased a portion of the suit accommodation by registered sale-deeds dated 2.2