Important point
When a tenant in suit premises filed suit for specific performance of agreement for sale of suit premises but failed to establish the claim, counter claim of defendant for possession by eviction could not be decreed only on ground that plaintiff had denied title of defendant when jurisdiction of Civil Court was barred by Rent Act.

Headnote:A.P. Building (Lease, Rent and Eviction) Control Act, 1960—Section 10—Grant of eviction decree by Civil Court while allowing counter claim—Sustainability—Appellant was tenant in suit property—Alleging an oral agreement for sale wherein on a draft deed of sale approval was granted by Ceiling Authorities in 1977, suit for specific performance filed by appellant in 1998—Counter-claim by defendant-respondent—Claim for specific performance was dismissed and rejecting contention of plaintiff that Civil Court had no jurisdiction to entertain counter-claim, Trial Judge held that appellant had denied title of landlord and thus Civil Court had jurisdiction to entertain counter-claim—Court allowed same only on premise that appellant had failed to establish its case of oral agreement of sale—High Court upheld counter claim decree—Appeal—Doctrine of approbate and reprobate—Existence of agreement itself was in question—Specific case of Respondents themselves was that appellant continued to be a tenant—Civil Court had no jurisdiction to pass decree for eviction only on basis that tenant had denied title of respondent landlord—Impugned judgment to extent allowing counter claim was liable to be set aside.
       Held : So read, the plaintiffs in its plaint merely ascribed that he continued to be in possession of the tenanted premises after the oral agreement of sale was entered into by and between the parties pursuant to or in furtherance thereof. It has not been and could not have been the contention of the Appellant that he has derived title as a vendee in respect of the premises in question. Such a plea, in view of Section 54 of the Tansfer of Property Act, was not available. He at best could raise a claim of possession of the said premises in part performance of contract as envisaged under Section 53-A thereof. A suit for eviction under the said Act would lie before a Rent Controller and not before a Civil Court. In terms of proviso appended to Section 10(1) of the said Act before the parties to pursue their remedies in a civil court a Rent Controller is required to arrive at a finding as regard the bona fide or otherwise the claim of the tenant. (Paras 21 and 22)
       It is true as has been submitted by Mr. Gupta that a party to a lis cannot raise pleas which are mutually destructive but ordinarily inconsistent defences can be raised. The Respondent No. 2 to 5 were Plaintiffs in respect of their counter-claim and, thus, it was for them to prove their case by pleading such foundational facts as were required to obtain a decree in their favour. The Respondents, as noticed hereinbefore, in their written statement categorically stated that the plaintiff had been in possession of the land as a tenant and his possession is that of tenant even to this day and, thus, according to the defendant the Appellant continued to be a tenant. As in the counter-claim such a plea had been taken, the Respondents on their own showing raised inconsistent pleas which are said mutually destructive. The Civil Court’s jurisdiction to entertain a suit for eviction on the ground of denial of relationship of landlord and tenant could have been invoked only strictly in terms of the provisions of the said Act wherefor the requirement of law, as contained in the proviso appended to Section 10(1) of the Act was to be complied with. (Paras 29 and 30)
       It is now well-settled that a decree passed by a court having no jurisdiction is a nullity. The Civil Court had no jurisdiction to pass a decree for eviction only on the basis that the tenant has denied their title. The matter might have been different if the civil court has otherwise jurisdiction to entertain a suit. The legislature has created new rights and liabilities for both the landlord and tenant in terms of the provisions of the said Act and provided a forum therefor. The jurisdiction of the civil court having been barred except in a situation where the proviso appended to sub-section (1) of Section 10 would be attracted, the Civil Court has no jurisdiction to entertain a suit for eviction on a ground envisaged under Section 10(2) (vi) of the A.P Building (Lease Rent & Eviction) Control Act. The Civil Court, thus, had no jurisdiction to entertain the counter-claim. (Para 43)

Judgment

S.B. Sinha, J.—This appeal is directed against a judgment and order dated 19.1.2004 passed by a Division Bench of the Andhra Pradesh High Court whereby and whereunder the appeal preferred by the Appellant herein from a judgment and order dated 3.6.2002 passed by the II Senior Civil Judge, City Civil Court, Hyderabad in O.S.No. 307 of 1998 was dismissed.

2. The basic fact of the matter is not in dispute. The Appellant herein was a tenant of the predecessors’ in interest of the Respondent Nos. 1 to 4. Allegedly, an oral agreement of sale was entered into by and between the Appellant and the Respondents for a total consideration of Rs. 80,000/-. Allegedly, for execution of the deed of sale approval of the Ceiling Authorities was necessary wherefor the draft deed of sale was filed before the Ceiling Authorities. The said approval is said to have been granted in the year 1977. According to Appellant, the factum of grant of approval of the said deed of sale was not conveyed and only in the year 1997 he came to learn thereabout whereafter the said suit for specific performance of the contract was filed. During the pendency of the suit, the Respondent alienated the suit property in favour of the Respondent Nos. 6 & 7 herein by reason of a deed of sale dated 10.3.1998.

3. A written statement was filed on 20th July, 1998. In the said written statement, however, no counter-claim was filed. The Appellant herein filed an application for amendment of plaint inter alia questioning the alienation by the original defendants in favour of defendant No. 6 and praying for declaration that the deed of sale dated 10.3.1988 executed by defendant Nos. 2 to 5 in favour of Respondent Nos. 6 and 7 herein is null and void.

4. However, subsequently on or about 6.11.1995 a second written statement was filed wherein a counter-claim was made which is as under:

“i) The defendant submits that the plaintiffs who are the tenants of the defendants since, denied the tenancy and the relationship of Land Lord and Tenant and falsely set up the plea of oral agreement of sale have forfeited the right to continue in possession, as tenants in the suit premises and the plaintiffs are liable to be vacated from the suit premises as persons not having right any more to be in possession of the suit property. Hence, the Counter claim for delivery of possession of the suit property. The defendants are also entitled for mean (sic) profits from the plaintiffs at the rate of Rs. 1500/- from 10th November, 1992, i.e., for the past three years and also in future.

ii) The cause of action for Counter claim arouse on the day plaintiff No. 1 filed suit and the plaintiff denied the defendant’s title by setting up false agreement of sale. The Counter claim is therefore within time.

iii) These defendants are paying a Court fee of Rs. 2626/- on the 3/4th Market Value of Rs. 80,000/- framed in the plaint. Under Section 24-A of A.P. Court fee and Suit Valuation Act, which is proper and sufficient another Court fee of Rs. 2466/- paid of U/s 20 of APCF & S.U. on the claim of Rs. 54,000/- profit claimed for past 3 years i.e. from 10.11.92 to 9.11.95 which is proper and sufficient.

iv) It is, therefore, prayed that the Counter Claim be allowed by granting the following relief:

(A) The plaintiff be directed to deliver the defendants vacant and actual possession of the suit property.

(B) The defendants be directed to pay to the plaintiffs Rs. 54,000/- as mesne profits.

(C) The defendants be directed to pay to the plaintiffs Rs. 1500/- per month as further mesne profits from 10.11.95 to the date of eviction.

(D) The defendants be directed to pay to the plaintiffs the costs of the counter claim.”

5. The Appellant herein in his replication asserted:

“The Plaintiffs submit that the relief of counter claim for delivery of possession of the property is not maintainable before this Hon’ble Court, as the suit premises is attracted by the provisions of A.P. (L.R.E.) Act as there was relationship of landlord and t

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2005 Supreme(SC) 1199

Cases Referred (12)