Vs. P. Savithramma & Ors  Insc 487 (16 September 2005)
Sinha & C.K. Thakker S.B. Sinha, J:
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.
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.
an oral agreement of sale was entered into by and between the Appellant and the
Respondents for a total consideration of Rs. 80,000/-.
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.
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.
subsequently on or about 6.11.1995 a second written statement was filed wherein
a counter-claim was made which is as under:
This 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
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.
Counter claim is therefore within time.
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
is, therefore, prayed that the Counter Claim be allowed by granting the
The plaintiff be directed to deliver the defendants vacant and actual
possession of the suit property.
The defendants be directed to pay to the plaintiffs Rs. 54,000/- as mesne
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.
The defendants be directed to pay to the plaintiffs the costs of the counter
Appellant herein in his replication asserted:
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 tenant prior to agreement of sale and the rent
last paid was at Rs. 300/- p.m. Since this Hon'ble Court has no jurisdiction to entertain the counter claim for
delivery of possession, the claim is liable to be rejected.
Plaintiffs further submit that the Defendants are not entitled for relief of mesne
profits at the rate of Rs. 1500/- per month from 10.11.92 i.e. for the past 3
years and also in future as the Plaintiff No. 1 paid the entire sale
consideration in respect of the Plaint Schedule Property as stated in the
Plaint and are entitled to specific performance of agreement of sale and the
Defendants are not entitled for any mesne profits as claimed. Hence, the claim
of the Defendants is liable to be rejected.
Plaintiffs deny all other adverse allegations which are not specifically
traversed herein above and pray that the counter claim of the Defendants be
rejected." A separate written statement appears to have been filed by the
third defendant on behalf of defendant Nos. 2,4 and 5 on or about 2.11.1999.
The third defendant also filed an additional written statement.
Trial Court, however, as regard counter-claim did not frame any specific
issues. The issues framed by the learned Trial Judge are as under:
Whether there is an agreement of sale in between the parties?
Whether any payments were made under the alleged agreement?
Whether the suit is barred by limitation?
what relief ?"
the fact that no issue was framed, the learned Trial Judge proceeded to
consider the issue as regard the counter-claim of the defendant under Issue No.
4. Rejecting the contention made by the counsel for the plaintiff that the
court has no jurisdiction to entertain the counter-claim, the learned Trial
Judge stated that as the Appellant had denied the title of the landlord, the
civil court has jurisdiction to entertain the counter-claim of the defendants
in terms of Order VII, Rule 7 of the Code of Civil Procedure.
considering any evidence which might have been brought on records by the
parties on the said counter-claim of the Respondents herein, the learned Trial
Judge allowed the same only on the premise that the Appellants have failed to
establish its case of oral agreement of sale.
High Court by reason of the impugned judgment and relying Xavier (Mrs.) [(2000)
9 SCC 339] rejected the claim of the Appellant as regard decree for specific
performance of contract but as regard the Respondent's counter-claim, it held:
apart, having set up with such a false plea of agreement and totally in regard
to his tenancy, it cannot be said that the remedy of the defendants is to
approach the authorities under the provisions of Rent Control Act." Mr. Anant
Vijay Palli, learned counsel appearing on behalf of the Appellant was not able
to persuade us to interfere with the concurrent findings of fact arrived at by
the courts below as regard the Appellant's claim on specific performance of an
oral agreement to sale. The learned counsel, however, would contend that as no
issue had been framed as regard the said counter-claim, no decree thereupon
could have been passed, as was purported to have been done by the Civil Court,
and in any view of the matter the Civil Court has no jurisdiction to determine
Gupta, learned senior counsel appearing on behalf of the Respondent No. 6
herein, however, would submit that despite the provisions contained in A.P.
Building (Lease, Rent & Eviction) Control Act, 1960, the Civil Court had
the requisite jurisdiction to determine the counter- claim of the Respondents
in view of the fact that the tenant cannot be permitted to approbate and
reprobate at the same time. The learned counsel submitted that the Appellant
herein in paragraph 4 of the plaint has claimed possession in his capacity as a
vendee and not as a tenant and, thus, a different relationship between the
parties having come into being, the relationship of the landlord and tenant did
not revive automatically upon his failure to establish his claim. Strong
reliance in this behalf has been placed [(1973) 2 SCC 197] and R. Kanthimathi
urged by the learned counsel that when the plaintiff sets up title in himself
which is inconsistent with his plea of tenancy and if he, having not succeeded
in establishing his former claim, cannot now turn round and contend that he
should be granted the relief to continue to be in possession of the suit
premises as if he is a tenant. Although two inconsistent defences are
permissible, Mr. Gupta would argue that such defences should not be mutually
destructive and in support thereof strong 298].
on or on the basis of the decisions of this Court in Nagubai would contend that
the plaintiff cannot approbate and reprobate at the same time.
Nageshwara Rao, learned senior counsel appearing on behalf of the Respondent
Nos. 2 to 5, would supplement the argument of Mr. Gupta. Drawing our attention
to the counter-affidavit filed herein in this appeal he would contend that Shri
P. Someswar Rao, father of original defendant filed an eviction petition in the
court of Rent Controller against the Appellant herein on the ground of wilful
default in payment of arrears of rent wherein the Appellant herein in his
written-statement raised a plea of the agreement for sale claiming a title in
(lease, Rent & Eviction) Control Act, 1960 (the said Act) was enacted
"to consolidate and amend the law relating to the regulation of leasing of
buildings, the control of rent thereof and the prevention of unreasonable eviction
of tenants therefrom in the State of Andhra Pradesh". Section 10 of the
said Act provides that except one or more grounds stated therein no tenant can
be evicted from a tenanted premises except by obtaining a decree passed by the
10 (1) of the said Act reads as under:
A tenant shall not be evicted whether in execution of a decree or otherwise
except in accordance with the provisions of this Section or Sections 12 and 13:
that where the tenant, denies the title of the landlord or claims right of
permanent tenancy, the Controller shall decide whether the denial or claim is
bona fide and if he records a finding to that effect, the landlord shall be
entitled to sue for eviction of the tenant in a Civil Court and the Court may
pass a decree for eviction on any of the grounds mentioned in the said
sections, notwithstanding that the Court finds that such denial does not
involve forfeiture of the lease or that the claim is unfounded." Denial of
relationship of landlord and tenant is one of the grounds for eviction of a
tenant. Section 10(2)(vi) and the proviso appended thereto read as under:
A landlord who seeks to evict his tenant shall apply to the Controller for a
direction in that behalf. If the Controller, after giving the tenant a
reasonable opportunity of showing cause against the application, is satisfied ***
*** *** *** (vi) that the tenant has denied the title of the landlord or
claimed a right of permanent tenancy and that such denial or claim was not bona
Controller shall make an order directing the tenant to put the landlord in
possession of the building and if the Controller is not so satisfied, he shall
make an order rejecting the application" Paragraph 4 of the plaint which
is referred to by the Counsel for the parties at the hearing is as under:
plaintiff No. 1 also paid a sum of Rs. 10000/- as advance and earnest money on
the date of the said oral agreement and symbolic possession was delivered on
the date of agreement. Earlier to the date of entering into agreement of sale,
the plaintiff No. 1 was in possession of the plaint schedule property as tenant
and continued thereafter as a purchaser after entering into an agreement of
sale in part performance of the agreement of sale." The Respondent Nos. 1
to 4 herein, however, in their written statement contended:
reply to para 4 of the plaint these defendants submits that it is incorrect to
say that the plaintiff No. 1 paid Rs. 10000/- on the date of alleged oral
agreement. It is also incorrect to say that the symbolic possession was
delivered on the date of the alleged oral agreement. The plaintiff No. 1 was in
possession of Plaint schedule property as a tenant and his possession is that
of tenant even to this day." The pleadings as is well-known must be
construed reasonably. The contention of the parties in their pleadings must be
culled out from reading the same as a whole. Different considerations on
construction of pleadings may arise between pleadings in the mufossil court and
pleadings in the original side of the High Court.
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 Transfer 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.
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.
the provisions of the Transfer of Property Act, a landlord can evict his tenant
only upon service of proper notice as envisaged under Section 106 of the
Transfer of Property Act. A lease can be determined by forfeiture inter alia
when the lessee renounces his character as such by setting up a title in a
third person or by claiming title in himself. But even in such a case, the lessor
must give notice in writing to the lessee of his intention to determine the
between clause (f) and clause (h) of Section 111 is that in the former the
right of forfeiture is exercised while the tenancy is still subsisting while in
a case falling under clause (h) the lease is determined by a notice to quit.
right of the Respondents to forfeit the tenancy, if any, had also not been
exercised and no notice therefor was served upon the Appellant.
be true that, as was submitted by Mr. Nageshwara Rao, that the predecessors' in
interest of the Respondents had filed a suit for eviction before the Rent
Controller on the ground of default on the part of the Appellant in payment of
rent as it appears from the statement made by PW-I that the said suit was
dismissed for default. In this appeal, the Respondents should not be allowed to
raise a contention for the first time that only in view of such a statement a
suit for eviction was not pursued. Neither there exists any material in this
behalf nor the court below went into the said question. The consequences
resulting from a suit being dismissed for default must ensue and it must be
held that the question as regard the right of the Respondents to evict their
tenant on one or more of the grounds enumerated in Section 10 of the Act must
be determined by the Rent Controller in an appropriate proceeding.
375] whereupon Mr. Nageshwara Rao placed strong reliance, Lahoti, J., as the
learned Chief Justice then was, while construing the provisions of clause (c)
of sub-section (1) of Section 12 of the M.P. Accommodation Control Act, 1961
The law as to tenancy being determined by forfeiture by denial of the lessor's
title or disclaimer of the tenancy has been adopted in India from the law of
England where it originated as a principle in consonance with justice, equity
and good conscience. On enactment of the Transfer of Property Act, 1882, the
same was incorporated into clause (g) of Section 111. So just is the rule that
it has been held applicable even in the areas where the Transfer of Property
Act does not apply. (See: Raja Mohammad Amir Ahmad Khan v. Municipal Board of Sitapur.)
The principle of determination of tenancy by forfeiture consequent upon denial
of the lessor's title may not be applicable where rent control legislation
intervenes and such legislation while extending protection to tenants from
eviction does not recognize such denial or disclaimer as a ground for
termination of tenancy and eviction of tenant. However, in various rent control
legislations such a ground is recognized and incorporated as a ground for
eviction of tenant either expressly or impliedly by bringing it within the net
of an act injurious to the interest of the landlord on account of its
mischievous content to prejudice adversely and substantially the interest of
the landlord." It was further observed:
In our opinion, denial of landlord's title or disclaimer of tenancy by tenant
is an act which is likely to affect adversely and substantially the interest of
the landlord and hence is a ground for eviction of tenant within the meaning of
clause (c) of sub-section (1) of Section 12 of the M.P. Accommodation Control
Act, 1961. To amount to such denial or disclaimer, as would entail forfeiture
of tenancy rights and incur the liability to be evicted, the tenant should have
renounced his character as tenant and in clear and unequivocal terms set up
title of the landlord in himself or in a third party. A tenant bona fide
calling upon the landlord to prove his ownership or putting the landlord to
proof of his title so as to protect himself (i.e. the tenant) or to earn a
protection made available to him by the rent control law but without disowning
his character of possession over the tenancy premises as tenant cannot be said
to have denied the title of landlord or disclaimed the tenancy.
an act of the tenant does not attract applicability of Section 12(1)(c) abovesaid.
It is the intention of the tenant, as culled out from the nature of the plea
raised by him, which is determinative of its vulnerability." There cannot
be any doubt whatsoever that the Respondents could have maintained a proceeding
for eviction before the Rent Controller on the said ground. Once such a
proceeding could be initiated under the said Act, the jurisdiction of the civil
court would be held to have been ousted.
true as has been submitted by Mr. Gupta that a party to a lis canot 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.
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
in the counter-claim although the Respondents have claimed mesne profits at the
rate of Rs. 1500 per month from 10.11.1992 till 9.11.1995, i.e., for a period
of only 3 years only and also in future, the Trial Judge did not discuss the
evidence which might have been adduced by the parties in that behalf. The
Division Bench of the High Court, as noticed hereinbefore, on the other hand,
examined the question on the premise that the Appellants were in arrears of
rent for the period from January, 1977 to June, 1996 and, thus, became a
defaulter. The contention of the Appellant that the Civil Court has no
jurisdiction was repelled by the High Court, as noticed hereinbefore without going
into the aforementioned aspect of the matter.
have noticed hereinbefore that the Respondents in the counter- claim did not
advance a plea for forfeiture of tenancy nor did they raise any contention that
the landlord has issued a notice conveying his intention to determine the
doctrine of approbate and reprobate is a species of estoppel.
there cannot be any estoppel against a statute. [See MD, Army Sumangal Services
(P) Ltd., (2004) 9 SCC 619] In Nagubai Ammal (supra), whereupon strong reliance
has been placed by Mr. Gupta, this Court observed that the maxim that a person
cannot approbate and reprobate is only one application of the doctrine of
election and its operation must be confined to the reliefs claimed in respect
of the same transaction and to the persons who are parties thereto. In that
case a plea that an earlier proceeding was not a collusive one was allowed to
be raised holding that the said principle has no application inter alia on the
ground that the plaintiff therein did not obtain any advantage against the
appellants by pleading therein that the earlier proceedings were collusive nor
did they acting on those pleadings acquire rights to the suit properties. The
said decision has no application to the fact of the present case.
of the Appellant, in this behalf, to which our attention was drawn reads as
a tenant, I we used to pay Rs. 300/- per month till the date of purchase of the
property. The 1st defendant filed a Rent case No. 617 of 1988 on the file of IV
Addl. Rent Controller, Hyderabad after filing the present suit. The said R.C
was dismissed for default on 16.6.1992. The 1st defendant did not get it
restored the said Rent Case nor they have filed any case for eviction."
The Respondents herein on the aforementioned premise cannot be permitted to
raise a plea that the suit for eviction was not pursued before the Rent
Controller, Hyderabad only because the Appellant had raised the plea that the
Rent Controller had no jurisdiction in the matter. The matter might have been
otherwise if in the said proceedings a finding was arrived at that the court
has no jurisdiction upon acceptance of the said plea by the Appellants herein.
R.N. Gosain (supra), different types of undertakings were given by the tenant
that he would vacate the premise which having been acted upon, it was held that
having done so, the petitioner cannot be permitted to invoke the jurisdiction
of this Court under Article 136 of the Constitution of India.
said decision has no application to the fact of the present case.
Bhatt Mall Gothani (supra), admittedly there was an agreement to sell the suit
property to the tenant wherein it was provided that the payment would be made
in equal instalments and on failure of do so, the sale agreement would be
cancelled. In the aforementioned situation, this Court held that when the
agreement was entered into, the old relationship of landlord and tenant came to
an end and the rights and liabilities of the parties were required to be worked
out on the basis of that agreement.
in this case the existence of the agreement itself was in question.
noticed hereinbefore, the specific case of the Respondents themselves was that
the Appellants continued to be a tenant and in that view of the matter, the
said decision has no application.
In R. Kanthimathi
(supra), whereupon reliance has been placed by the High Court, this Court held
that where a new jural relationship was created between the parties upon
non-establishment thereof, parties cannot fall back upon the old one. Therein,
the seller landlord accepted the amount under the agreement and such
acceptance was preceded by agreement of sale and in the aforesaid factual
backdrop it was held that the relationship of landlord and tenant between the
parties changed. Such is not the case here. The said decision, therefore, has
no application to the fact of the present case.
Sultan (supra), the suit was filed based on the possession of title wherein the
tenant Appellant denied the relationship of landlord and tenant claiming to be
the owner by adverse possession. Only in that situation it was held that the
tenant for the first time before this Court could not raise a plea that his
tenancy was protected under the Rajasthan Rent Restriction Act.
483], this Court held:
An undertaking of this nature furthermore must be construed in favour of the
person giving such undertaking. It should not be stretched too far. A party
giving an undertaking is bound thereby but by reason thereof, the same cannot
be given a meaning whereby the scope and extent thereof is enlarged." 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.
340], it was stated:
is a fundamental principle well-established that a decree passed by a court
without jurisdiction is a nullity, and that its invalidity could be set up
whenever and wherever it is sought to be enforced or relied upon, even at the
stage of execution and even in collateral proceedings. A defect of
jurisdiction, whether it is pecuniary or territorial, or whether it is in
respect of the subject-matter of the action, strikes at the very authority of
the court to pass any decree, and such a defect cannot be cured even by consent
of parties...." Encon Builders (I) (P) Ltd. [(2003) 7 SCC 1], this Court
order which lacks inherent jurisdiction would be a nullity and, thus, the
procedural law of waiver or estoppel would have no application in such a
situation." was opined :
It is now well settled that an order passed by a court without jurisdiction is
a nullity. Any order passed or action taken pursuant thereto or in furtherance
thereof would also be nullities. In the instant case, as the High Court did not
have any jurisdiction to record the compromise for the reasons stated
hereinbefore and in particular as no writ was required to be issued having
regard to the fact that public law remedy could not have been resorted to, the
impugned orders must be held to be illegal and without jurisdiction and are
liable to be set aside. All orders and actions taken pursuant to or in
furtherance thereof must also be declared wholly illegal and without
jurisdiction and consequently are liable to be set aside. They are declared as
such." SCC 1 and MD, Army Welfare Housing Organisation (supra)].
(5) SC 202], this Court observed:
The provisions of the Act and the Scheme thereof leave no manner of doubt that
the Act is a complete code in itself. It provides for a complete machinery for
a person interested in the trust to put forward his claim before the Charity
Commissioner who is competent to go into the question and to prefer appeal if
he feels aggrieved by any decision. The bar of jurisdiction created under
Section 80 of the Act clearly points out that a third party cannot maintain a
suit so as to avoid the rigours of the provisions of the Act. The matter,
however, would be different if the property is not a trust property in the eye
of law. The civil court's jurisdiction may not be barred as it gives rise to a
jurisdictional question. If a property did not validly vest in a trust or if a
trust itself is not valid in law, the authorities under the Act will have no
jurisdiction to determine the said question." The impugned judgment to the
aforementioned extent, therefore, cannot be sustained which is set aside
accordingly. The appeal is allowed in part so far as it relates to the
counter-claim made by the Respondents herein.
that part of the judgment whereby and whereunder the Appellant's suit for
specific performance of contract has been dismissed is upheld. No costs.