Isabella Johnson Vs. M.A. Susai  INSC 307 (9 October 1990)
M.H. Kania, M.H. Ojha, N.D. (J)
1991 AIR 993 1990 SCR Supl. (2) 213 1991 SCC (1) 494 JT 1990 (4) 406 1990 SCALE
Control and Eviction: Andhra Pradesh Rent Control Act, 1960: Section
3--Eviction suit--Jurisdiction of Courts--Res judicata and Estoppel-- Whether
Procedure Code, 1908: Section 11--Jurisdiction of Courts --Pure question of
law--Res judicata--Applicability of.
Act, 1872: Section 115-- Estoppel--Applica- bility of in regard to jurisdiction
Respondent-landlord filed a suit under the Andhra Pradesh Rent Control Act for
recovery of possession and for mesne profits. The apPellant-defendant raised a
preliminary objection that the City Civil Court
had no jurisdiction to entertain the suit. In the two eviction petitions filed
earlier by the appellant, the Respondent took the plea that since the alleged
tenancy was hit by Section 3 of the A.P.
Control Act, eviction suit was not entertainable by the Rent Controller.
the suit in favour of the appellant, the trial Court held that it was not oPen
to the Respondent to take such inconsistent plea regarding jurisdiction; that
he cannot be allowed to approbate and reprobate and he was estopped from doing
so. On apPeal by respondent, the deci- sion was upheld by the First Appellate
Court. On a second apPeal preferred by the respondent, the High Court reversed
the trial court's order.
by the decision of the High Court, the appel- lant preferred this apPeal, by
special leave, contending that the principles of Res Judicata and estopPel were
the apPeal, this Court,
1. A court which has no jurisdiction in law cannot be conferred with the
jurisdiction by applying principles of res judicata. It is well settled that
there can be no estop- pel on a pure question of law. [217F] 214 Mahtura Prasad
Bajoo Jaiswal and Ors. v. Dossibai N.B. Jeejeebhoy,  3 SCR 830; Sushil
Kumar Mehta v. Gobind Ram Bohra (dead) thro' his Lrs.,  1 SCC 193; relied
Singh and Ors. v. Jagjit Singh and Anr.,  4 SCC 83; referred to.
the instant case, the question of jurisdiction is a pure question of law. The
High Court was right in its conclusions that in matters of jurisdiction to
entertain the suit, doctrine of estoppel could not be invoked; and that the City Civil Court had no jurisdiction to entertain
the suit, as it lay exclusively within the jurisdiction of the Rent Controller.
APPELLATE JURISDICTION: Civil Appeal No. 277 1 of 1981.
the Judgment and Order dated 5.2.1980 of the Andhra Pradesh High Court in S .A.
No. 526 of 1977.
K. Agarwal (N.P.) for the Appellant.
Rao for the Respondents.
Judgment of the Court was delivered by .
J. This is an appeal by special leave from the decision of a learned Single
Judge of the Andhra Pradesh High Court in Second Appeal No. 526 of 1977.
are, with respect, in agreement with the conclu- sions arrived at by the
learned Single Judge of the High Court, we propose to set out only the bare
facts essential for the purposes of our judgment.
appellant was the plaintiff and the respondent was the defendant in Suit. O.S.
No. 789 of 1973 filed in the Court of the Third Assistant Judge, City Civil
Court, Hyd- erabad. The appellant prayed for a decree for recovery of
possession of the suit premises from the respondent and for mesne profits till
the delivery of possession of the prem- ises. The case of the appellant was
that she was the owner of the suit premises and the respondent was in the occupa-
tion of the said premises on payment of Rs.30 per month. The respondent had
been 215 irregular in the payment of the said rent and had been a source of
perpetual nuisance. It was on this ground that the eviction of the premises was
sought by the appellant. In his written statement the respondent took a
preliminary objec- tion that the City Civil Court had no jurisdiction to enter- tain the suit as the suit
fell within the jurisdiction of the Rent Controller at Hyderabad. Two petitions had earlier been
filed by the appellant before the Rent Controller for eviction of the
respondent and the Rent Controller had rejected the same on the ground that the
purported tenancy of the respondent was hit by section 3 of the A.P. Rent
Control Act and hence, the eviction suit was not entertain- able by the Court
of Rent Controller. This conclusion was arrived at on a plea to the said effect
taken by the re- spondent. In the Court of learned Third Assistant Judge of the
City Civil Court at Hyderabad the respondent took up the plea that the suit fell
exclusively within the jurisdiction of the Rent Controller and hence the City Civil Court had no jurisdiction to entertain
the suit. Certain pleas were made regarding amendments in the law with which we
are not con- cerned in this appeal. What is material to note for our purposes
is that the learned Assistant Judge took the view that as the respondent had,
before the Rent Controller, taken up the plea that it was not the Rent
Controller but the City Civil Court which had the jurisdiction to entertain the
eviction petition against him, and the said plea was upheld, it was not open to
the respondent to take up the inconsistent plea before the City Civil Court
that it was the Rent Controller and not the City Civil Court which had
jurisdiction to entertain the proceedings. It was held that the respondent
could not be allowed to approbate and repro- bate and that he was estopped by
way of pleading to take up an inconsistent plea regarding jurisdiction.
basis of this conclusion, and other conclusions with which we are not
concerned, the suit was decreed by the learned Assistant Judge in favour of the
appellant. The decision of the learned Assistant Judge was upheld in an appeal
filed by the respondent in the Court of the learned Additional Chief Judge of
the City Civil Court at Hyderabad.
second appeal preferred by the respondent, the learned Single Judge of the High
Court took the view that in matters of jurisdiction the question of estoppel
does not arise. If the City
Civil Court has no
jurisdiction to entertain the suit, the doctrine of estoppel could not be
invoked so as to confer jurisdiction on the Court of City Civil Court. On the question of jurisdiction the learned Judge
took the view that the City
Civil Court had no
jurisdiction to entertain the suit as it lay exclusively within the
jurisdiction of the Rent Controller.
Learned counsel for the appellant submitted that the learned Judge of the High
Court was in error,as the earlier decisions of the Rent Controller to the
effect that it was the City Civil Court and not the Rent Controller who had the
jurisdiction to entertain the suit for eviction filed by the appellant against
the respondent, constituted res judicata between the parties on the question of
jurisdiction. It was submitted by him that, even if that decision was wrong,
the issue of jurisdiction was finally decided between the par- ties and that
decision was that it was the Civil Court
and not the Rent Controller that had the jurisdiction to enter- tain and
dispose of the suit for eviction. He further sub- mitted that the respondent
could not be permitted to take inconsistent pleas as he was barred by the
principles of estoppel from taking up the plea before the Civil Court that it was the Rent Controller who
had the exclusive jurisdic- tion to entertain the suit. He placed reliance on a
decision rendered by a Division Bench comprising two learned Judges of this
Court in Avtar Singh and Others v. Jagjit Singh and Another,  4 SCC 83
which took the view that the Civil Court's decision regarding lack of
jurisdiction will operate as res judicata in a subsequent suit. In that case
the Civil Court declined jurisdiction. The Civil Court took the view that it had no
jurisdiction to try the suit in question and directed the return of the plaint
for representation to the appropriate Revenue Court. When the claim was filed in the Revenue Court, the Court took the view that it
had no juris- diction to try the claim. Thereupon, a suit was again insti- tuted
in the Civil Court for the lame relief. This suit
failed throughout on the ground of res judicata. I?he High Court affirmed the
dismissal and the Division Bench of this Court took the view that the High
Court was right in taking the view hat the principles of res judicata were
applicable to the issue of jurisdiction. In our opinion, the contention of
learned counsel for the appellant cannot be upheld. We find that in Mathura
Prasad Bajoo Jaiswal and Others v. Dossibai N.B. Jeejeebhoy,  3 SCR 830
at p. 836 a Bench comprising three learned Judges of this Court has taken the
view that a decision on the question of jurisdiction of the court or a sure
question of law unrelated to the right of the parties to a previous suit, is
not res judicata in the subsequent suit. The Court observed:
is true that in determining the application of the rule of res judicata the
Court is not concerned with the correct- ness or otherwise of the earlier
judgment. The matter in issue, if it is one purely of fact, decided in the
earlier proceeding by a competent court must in a subsequent litiga- tion
between the same parties be regarded as finally decided and cannot be reopened.
A mixed question of law and fact determined 217 in the earlier proceeding
between the same parties may not, for the same reason, be questioned in a
subsequent proceed- ing between the same parties. But, where the decision is on
a question of law, i.e. the interpretation of a statute, it will be res judicata
in a subsequent proceeding between the same parties where the cause of action
is the same, for the expression "the matter in issue" in S. 11 of the
Code of Civil Procedure means the right litigated between the par- ties, i.e.
the facts on which the right is claimed or denied and the law applicable to the
determination of that issue.
however, the question is one purely of law and it relates to the jurisdiction
of the Court or a decision of the Court sanctioning something which is illegal,
by resort to the rule of res judicata a party affected by the decision will not
be precluded from challenging the validity of that order under the rule of res judicata,
for a rule of proce- dure cannot supersede the law of the land." The same
view has been reiterated by a Bench comprising three learned Judges of this
Court in Sushil Kumar Mehta v. Gobind Ram Bohra (dead) through his Lrs., 
1 SCC 193.
find that the decision of three learned Judges of this Court in Mathurn Prasad Bajoo
Jaiswal and Others v. Dossibai N.S. Jeejeebhoy, has not been noticed at all by
the Division Bench comprising two learned Judges of this Court which delivered
the judgment in Avtar Singh and Others v. Jagjit Singh and Another, and hence,
to the extent, that the judg- ment in Avtar Singh's case takes the view that
the principle of res judicata is applicable to an erroneous decision on
jurisdiction, it cannot be regarded as good law. In our opinion a court which
has no jurisdiction in law cannot be conferred with the jurisdiction by
applying principles of res judicata. It is well settled that there can be no estop-
pel on a pure question of law and in this case the question of jurisdiction is
a pure question of law.
view, therefore, the High Court was, with re- spect, right in its conclusions
arrived at and the appeal must be dismissed.
appeal is dismissed. Looking to the facts and cir- cumstances of the case there
will be no order as to costs.
Appeal dis- missed.