Rama Gupta vs Prithvi Raj Chauhan

H.N. Tilhari, J.—This civil revision under Section 115 of the Code of Civil Procedure arises out of the judgment and order dated 27193 delivered by Shri T. N. Misra, Civil Judge Malihabad at Lucknow in Misc. Case No. 17 of 1992 Smt. Rama Gupta & another v. Prithvi Raj Chauhan & another, whereby the learned Civil Judge has rejected the applicants'' application under Section 47 of the Code of Civil Procedure in Execution Case No. 13 of 1992. The facts of the case in brief are that vide annexure2 to the revision application i. e, plaint dated 12385 the plaintiffopposite party Prithvi Raj Chauhan filed a suit for decree of possession of House No. A 15 Yamuna Jheel Colony, Aishbagh Ward, Aishbagh, Lucknow and for damages against the defendantapplicants for illegal use and occupation of the house by them. The suit was numbered as Suit No. 42 of 1986. The plaintiff''s in that suit claimed to be entitled to recover possession on the basis of the facts mentioned in paragraph 16 of the plaint and he also claimed entitled to the damages. The suit was contested by defendantapplicants and by the judgment and decree dated 7289 the trial court i.e. Civil Judge decreed the plaintiffs'' suit and required the defendants to hand over the possession of the house in dispute to the plaintiffs within a period of one month, failing which it was provided that the plaintiffrespondents shall have the right to get the possession through the court at the costs of the defendantapplicants. The trial court also decreed the claim for damages at the rate of Rs. 1,000/ per month till the date of handing over of actual vacant possession to plaintiff of the house since 8983. Having felt aggrieved from the decree of the trial court the defendants preferred the first appeal No. 31 of 1989 (Smt. Rama Gupta & another v. Prithvi Raj Chauhan) in this Court. The aforesaid first appeal has been heard and decided by a Division Bench of the Court consisting of Hon''ble Mr. Justice Brijesh Kumar and Hon''ble Mrs. Justice Shobha Dikshit and this Court found that the first appeal had no merits and dismissed the first appeal accordingly.

The decreeholder moved an application for execution of the decree which was numbered as Execution Case No. 13 of 1992. In Execution Case No. 13 of 1992 (Prithvi Raj Chauhan & another v. Smt. Rama Gupta & another) the revisionistapplicants moved an application i.e. objection under Section 47 of the Code of Civil Procedure on the ground that the house i.e. the property subject matter of the suit in which the decree sought to be executed has been passed is a public premises since its construction belong to the local authority i.e. Lucknow Development Authorityopposite party No. 2 and that in view of the bar of jurisdiction of Civil Court in respect of public premises, no suit under Section 9 of the Code of Civil Procedure for eviction and realisation of damages and compensation in respect of public premises has been maintainable and that Suit No. 42 of 1986, as such, has not been maintainable in Civil Court and the Civil Court had no jurisdiction to try and decree the same and so the decree passed by the Civil Court as affirmed by this Court in the First Appeal No. 31 of 1989 is a nullity in law and so not executable. The decreeholderopposite party No. 1 has deliberately and actuated with dishonest intention suppressed from the knowledge of Lucknow Development Authority that the judgmentdebtors were in unauthorised occupation of the public premises in suit. A copy of the objection has been annexed as annexure3 to the revision application and the affidavit thereto. The decreeholder contested the objections moved by the judgmentdebtors under Section 47 of the Code The case of the judgmentdebtor (Decreeholder ?) opposite party No. 1 has been that the decree passed by the court below is perfectly legal and valid and that it belongs to him as a hire purchaser as well as on account of the decreeholder''s possession which he acquired from Lucknow Development Authority in pursuance of hire purchase agreement. The decreeholder further asserted that the provisions of U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 did not apply to the present case which is in between the decreeholder and the judgmentdebtor. His case is that the Civil Court''s jurisdiction has not been barred or excluded from trying the suit i.e. Suit No, 42 of 1986 and to pass the decree dated 721988. It has further been pleaded that the decreeholder has been in possession of the property, of which possession has been delivered to the decreeholder by the Lucknow Development Authority & so the decreeholder''s possession has never been unauthorised and that the decree passed by the court below has been perfectly legal and valid. Lucknow Development Authority has not been a necessary party to the case and has wrongly been impleaded as a party in objection under Section 47 of the Code.

Learned Civil Judge, Malihabad at Lucknow has considered the objections and has taken the view that no such objection as one to the effect that the building in dispute is a public premises and that in view of the provisions of U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972, the jurisdiction of the Civil Courts to entertain and to try the suit is barred and ousted, had been raised either before the trial court or before the High Court in appeal. Learned Civil Judge held that the provisions of U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 did not apply to the facts of the case and so Suit No. 42 of 1986 in which the decree, sought to be executed, had been passed was maintainable in the Civil Court and the decree cannot be taken to have been passed by a court having no jurisdiction. With these findings the execution court rejected the objections of the applicant under section 47 of the Code by order dated 27193. Having felt aggrieved from the judgment and order of the trial court rejecting the revisionistapplicant''s objection under section 47 of the Code, the judgmentdebtor defendants i.e. applicants have filed this revision under section 115 of the Code.

I have heard Shri Sahdev Singh, Advocate assisted by Shri Haider Rizvi and Shri Anil Srivastava, learned counsels for the revisionists at length. I have also heard Shri K.B. Sinha, Senior Advocate assisted by Shri R.C. Gupta, learned counsel for the oppositeparties. On behalf of the revisionistapplicants Shri Sahdev Singh submitted:

(a) that the decree sought to be executed was a nullity being one without jurisdiction. He submitted that in view of the provisions of sections 4 and 15 of U.P. Public Premises (Eviction of Unauthorised Occupants) Act 1972, the Civil Court had no jurisdiction to entertain the suit in which the decree which is subject matter of execution proceeding has been passed. He submitted that there is clear ouster of jurisdiction of Civil Court and Civil Court cannot entertain a suit for possession by ejectment of a person alleged to have been in its unauthorised possession. He submitted that no private person could institute a suit with respect to a public premises i.e. premises covered by provisions of Public Premises Act, in the Civil Court. His further contention has been that in view of provisions of Specific Relief Act if at all plaintiff could institute a suit he could institute a suit for possession under section 6 of the Specific Relief Act and i.e. within a period of six months from the date of his dispossession and that as the plaintiff had no title or ownership he could not institute the suit in his own right under section 5 of the Specific Relief Act. He submitted the remedy of the plaintiff to approach the Lucknow Development Authority because the plaintiff''s possession was in the capacity of an agent of Lucknow Development Authority as he was not holding the property in his own right as owner. Learned counsel for the revisionists submitted that the decreeholder on the date he had filed the suit had no title or semblance of possession as regards the property in suit, no deed of transfer had been executed whereby it could be said that the title or any interest was transferred according to law in favour of the decreeholder by the Lucknow Development Authority and that being the position, according to the learned counsel for the judgmentdebtor, suit under section 5 of the Specific Relief Act was not maintainable so he submitted that the decree was illegal, null and void and, as such, was not executable and that the learned court below erred in not holding the decree to be void and not liable to be executed and, therefore, illegally rejected the objections of the judgmentdebtor. Shri Sahdev Singh made reference to certain decisions, which may be considered at proper stage.

Disputing the contentions of Shri Sahdev Singh learned counsel for the revisionists Shri K. B. Sinha, learned Senior Advocate on behalf of the opposite parties submitted that firstly the provisions of U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 did not apply to facts of the present case nor did it bar the maintainability of the suit. Shri Sinha invited my attention to the plaint allegations as well as to the allegations of the counteraffidavit where a reference to written statement has been made and submitted that in view of the facts of the case and in particular on account of the fact that the plaintiffdecree holder had entered into possession of the land under an agreement from the Lucknow Development Authority and that the Corporation had delivered the possession of the property to the applicants, the possession of the decreeholder had been good against any and every person except the true owner i.e. the Corporation and when this has been the position, the possession which the decree holder has acquired from the Lucknow Development Authority has been hundred per cent title as against the judgmentdebtor and so there was no question of either decreeholder''s filing any proceedings under U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter shall be referred to as the Act) nor could the decreeholder take any action under the Act against the present judgment debtorrevisionists to get rid of the possession illegally taken by the judgmentdebtors without consent of the present decreeholder as well as against the wishes of the plaintiffdecree holder in the present case. He submitted that the provisions of the Act did not debar or oust the jurisdiction of the Civil Court to entertain the suit, so the decree cannot be said to be suffering from lack of jurisdiction or to be one said to have been passed by a court lacking jurisdiction inherently in the matter. Shri Sinha further referred to paragraph 1 of the plaint wherein it has been stated that the plaintiff is the hire purchaser (owner) of House No. A15 Jamuna Jheel, Aishbagh, Lucknow, which he acquired from the Nagar Mahapalika, Lucknow and was in its possession till 8983 after having been delivered its possession by the Nagar Mahapalika. He further invited my attention to paragraphs 2 and 3 and paragraph 5 of the plaint. Shri Sinha further invited my attention to the counteraffidavit of oppositeparty No. 1 in particular to paragraph 2(ii) wherein paragraph 1 of the written statement had been quoted and submitted that in view of this admission of plaintiff''s case, it is not open at this stage to the judgmentdebtors to raise the plea that plaintiff has got no right or interest in the property. Shri Sinha further submitted that the decree passed by the court below cannot be said to be without jurisdiction. He further submitted that the plea of the nature as has been raised at this stage had not been raised by the defendantjudgment debtors at any time or at any stage of the suit or of the first appeal in this Court. Lastly, he submitted that execution court had the jurisdiction to consider the plea raised before it on merits and the plea which had been raised if it has been decided against the judgmentdebtors erroneously that decision at the most may be one of error of law but it cannot be said to be one coming within the four corners of section 115 of the Code of Civil Procedure i.e. an error amounting to jurisdictional error, and, as such, the present revision filed by the judgmentdebtors is misconceived and not maintainable and is liable to be rejected.

I have given my due consideration to the contentions of the learned counsel for the parties. As regards the scope of section 115 of the Code the powers of the court are circumscribed by the conditions laid down in section 115 of the Code which are as under :

(a) that the order impugned must amount to a case decided ;

(b) that the order impugned should not be one against which an appeal is maintainable before a court in which revision has been filed from that order ;

(c) that the order impugned suffers from any or either of jurisdictional errors i.e :

(i) illegal exercise of jurisdiction not vested, or

(ii) illegal refusal to exercise the jurisdiction vested, or

(iii) if the court below acts illegally or with material irregularity.

A case for exercise of revisional jurisdiction may arise in the sense that if three conditions are shown to exist the court may be called upon to consider the question whether it will exercise the jurisdiction under section 115 of the Code and if it appears that the jurisdictional error has got the tendency of causing substantial injury or injustice to the party aggrieved, it may exercise revisional jurisdiction or in case had the order impugned not been passed or had the order as desired by the applicant would have been passed and the same could or would have brought the end of the proceedings, the revisional court may exercise jurisdiction if earlier three conditions are satisfied. In the present case the first question that has been raised is that the decree which has been sought to be executed stand illegal, null and void as according to the learned counsel for the revisionistjudgmentdebtors the decree had been void and had been the result of exercise of jurisdiction that was barred. This is a question which if answered in favour of the judgmentdebtors may result in coming to the conclusion that by taking a wrong decision as the executability of the decree the learned court below usurped the jurisdiction not vested i.e. in other words by taking the view that the decree sought to be executed has not been void or without jurisdiction, the court below, if the view taken by the court below is found not to be correct then it may be said to be a case resulting in jurisdictional error, so let us examine this point on merit.

Section 9 of the Code reads as under :

"9. Courts to try all civil suits unless barred :The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressely or impliedly barred.

Explanation (I) A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

(Explanation II,For the purposes of this section it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to in particular place.)"

A reading of section 9 of the Code shows that civil court has got the jurisdiction to try all suits of civil nature except those in respect of which the jurisdiction of the civil court is either expressly barred or is impliedly barred. Shri Sahdev Singh''s contention has been that the jurisdiction of the civil court has been expressly barred by and in view of the provisions of sections 4 and 15 of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972. It is also well settled principle of law that provisions excluding or ousting the jurisdiction of the civil court have to be construed very strictly, The preamble of Act No. 22 of 72 i.e. U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 reads as under :

"An Act to provide for eviction of unauthorised occupants from the public premises and for certain incidental matters."

Section 2 of the Act is definition clause, it defines the public premises, clause (e) of section 2 of U.P. Act No. 22 of 72 reads as under :

(e) �public premises" means any premises belonging to or taken on lease or requisitioned by or on behalf of the State Government, and includes any premises belonging to or taken on lease by or on behalf of

(i) any company as defined in section 3 of the Companies Act, 1956, in which not less than fiftyone per cent of the paid up share capital is held by the State Government ; or

(ii) any local authority ; or

(iii) Any Corporation (not being a company as defined in section 3 of the Companies Act, 1956 or a local authority) owned or controlled by the State Government; or

(iv) any society registered under the Societies Registration Act, 1860, the governing body whereof consists, wholly of public officers or nominees of the State Government; or both ; and also includes,

(i) Nazul land or any other premises entrusted to the management of a local authority (including any building built with Government funds on lands belonging to the State Government after the entrustment of the land to that local authority, not being land vested in or entrusted in the management of a Gaon Sabha or any other local authority under any law relating to land tenures) ;

(ii) any premises acquired under the Land Acquisition Act, 1894 with the consent of the State Government for a company (as defined in that Act) and held by that company under an agreement executed under Section 41 of that Act providing for reentry by the State Government in certain conditions)."

Sections 4 and 5 of the Act are also relevant. For the purpose Of perusal and consideration Sections 4 and 5 are quoted as under :

�4. Issue of notice to show cause against order of eviction,(1) If the prescribed authority of its own motion or on an application or report received on behalf of the State Government or the corporate authority, is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the prescribed authority shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.

(2) the notice shall,

(a) specify the grounds on which the order of eviction is proposed to be made ; and

(b) require all persons concerned, that is to say, all persons who are, or may, in occupation of, or claim interest in, the public premises, to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than ten days from the date of issue thereof.

The prescribed authority shall cause the notice to be served either personally on all those persons concerned or by having it affixed on the outer door or some other conspicuous part of the public premises and in any other manner, provided in the Code of Civil Procedure, 1908.

(4) Where the prescribed authority knows or has reasons to believe that any persons are in occupation of the premises, then without prejudice to the provisions of subsection (3), he shall cause a copy of the notice to be served on every such person by registered post or by delivering or tendering it to that person or in such other manner as may be prescribed.

Section 5. Eviction of unauthorised occupants,(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, the prescribed authority is satisfied that the public premises are in unauthorised occupation, the prescribed authority may make an order of eviction for reason to be recorded therein, directing, that the public premises shall be vacated, on such date as may be specified in the order by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.

(2) If any person refuses or fails to comply with the order of eviction within thirty days of the date for its publication under subsection (1), the prescribed authority in this behalf may evict that person from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary."

Section 7 of the Act is also material to throw the light on the question and it reads as under :

"7, Power to require payment of rent or damages in respect of public premises,(1) Where any person is in arrears of rent for four months payable in respect of any public premises, the prescribed authority may, by order, require that person to pay the same within such time and in such instalments as may be specified in the order, and on the failure of such person to pay the same or any instalment thereof he shall be deemed, to be in unauthorised occupation of the public premises.

(2) Where any person is, or has at any time been, in unauthorized occupation of any public premises, the prescribed authority may. having regard to such principles of assessment of damages as may be prescribed, assess the amount of damages on account of the use and occupation of such premises and may by order, require that person to pay the amount within such time and in such instalment as may be specified in the order.

(3) No order under subsection (1) or subsection (2) shall be made against any person until after the issue of a notice in writing to the person calling upon whom to show cause within such time as may be specified in the notice, why such order should not be made, and until his objections, if any, the evidence he may produce in support of the same, have been considered by the prescribed authority."

Section 15 of the Act provides as under :

"15. Bar of jurisdiction,No court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises or the recovery of the arrears of rent payable under subsection (1) of Section 7 or the damages payable under subsection (2) of that section or the costs awarded to the State Government or the corporate authority under subsection (5) of Section 9 or any portion of such rent, damages or costs."

A perusal of the preamble will per se show that the Act has been enacted to make provisions for eviction of unauthorised occupants from public premises and the Act intends to provide remedy of summary nature and to avoid delays in the matter of eviction of unauthorised occupants. This law is an attempt to avoid complicated lengthly procedure available under general law and to control increasing tendency of occupying public premises without right. Its object is to make available to the government a summary procedure to enable the government and the public corporations to take expeditious action. A perusal of Section 4 of the Act per se shows that under section of the Act. the prescribed authority has been conferred power to act either suo motu. If the prescribed authority is of opinion that any person is in unauthorised occupation of any public premises and that they should be evicted, the prescribed authority is required to proceed in accordance with the manner provided in subsections of Section 4 of the Act. Apart from taking proceedings suo motu, Section further provides that the prescribed authority can proceed to take action and issue notice in writing if an application or a report is received by it on behalf of the State or the corporate authority.

It is well settled principle of law regarding interpretation of statute that intent of the legislature has to be gathered from the expressions used and no expression used in the section should be taken to be superfluous. A reading of section 4(1) of the Act further indicates that application or rep or that can be entertained and received on the basis of which authority can proceed is the application or report received from or on behalf of the State Government or the corporate authority, and, as such, apart from proceeding suo motu if on an application or a report made to the prescribed authority on behalf of the State Government or corporate authority, the prescribed authority is of opinion that some persons are in unauthorised occupation of public premises and that they should be evicted, it may proceed to issue notice and take proceedings accordingly. Thus, this section appears to authorise the prescribed authority to exercise this power under Section 4 of the Act in the above situations i.e. either suo motu or on the application made by the State Government or local authority or the report made on behalf of such persons i.e. State Government or the corporate authority. The expression "received on behalf of the State Government or corporate authority'''' prima facie appears to qualify the application or report. This also reveals that the remedy provided by this Act through summary procedure is to State Government and State authorities or to corporate authorities in respect of public premises against the unauthorised persons but where the person has been put in possession of the public premises by the State Government or corporate authority this section does not by itself confer a right to such a person who after having been granted or delivered possession of the public premises by the State Government or public authority or the corporate authority validly and legally, has been later on dispossessed who has been deprived of possession or enjoyment of that property by some other person or some third person and powers of Section 4 of the Act are not open to the person in possession of the property as a lessee or allottee from the State Government or corporate authority to take recourse against trespassers qua such persons in view of the qualifying expression used in Section 4 of the Act. This section does not contemplate or provide for any application from any other person. If we read Section 4 of the Act as contended by the learned counsel for the applicant that the prescribed authority can proceed even at the instance of persons other than the State Government or the corporate authority or that it can proceed on an application made by an allottee who has taken possession under allotment order, it may amount to adding expressions to the language of Section 4 of the Act, the expressions "or any other person" after the expression "corporate authority" and before "is of opinion". It will tantamount to entering into the sphere of legislature. It is not permissible under law keeping in view the object of the Act. The legislature could have used this expression after the expression "corporate authority" and before expression "is of opinion" in Section 4 of the Act but the legislature has omitted it and the reason for the same appears to be that it would have run counter to the object and intent of the Act. The intent of the Act has been to provide summary procedure to Government and to corporate authorities instead of lengthy procedure so as to solve the problem of unauthorised occupation of public premises. In other words the present Act has been placed on the statute book to give a summary remedy to the Government to evict persons in unauthorised occupation of public premises to obviate the long ordeal, trial in civil court and further proceedings thereof. My above conclusion that Section 4 of the Act is intended and it does provide for summary remedy to the State Government and the corporate authorities only and not private individuals stands fortified from the scheme of the Act which furnishes internal evidence of legislative intent and firstly, from the definition of the public premises while defining the expression "public premises" the legislature has used the expression "any premises belonging to or taken on lease or requisitioned by or on behalf of the government or the corporate authority i.e. local authority, corporation" and the like. In this definition expression "belonging to" has been used by the legislature apart from other expressions as "taken on lease or requisitioned." The legislature has not used the word ''owned.'' There is no doubt that expression "belonging to" may take a case with it denoting an absolute title but it is not confined to connoting that sense. A premises may belong to a person but such person may not be its owner. Where a person has a right of absolute or user even against the owner it can be said that property belongs to him. As per Stroud''s Judicial Dictionary IV Ed. Vol. 1 page 269, the expression "belonging to" has been defined having got two general meanings i.e. (1) ownership (2) the absolute right of user. The expression belong to carries with it the idea or concept of full dominion or absolute right of user or the right of user and control over property. There can be no dispute with respect to a case where a property is owned and is under the control and user of a person though it may be said to belong to him or if the ownership thereof vests in State and State has full possession and dominion and control over the property or premises the same may be said to be public property or the like. But in case of a lease of a land or land taken on lease the lessee gets possession, control and dominion over the property for the period of the lease and the lessee who enters into possession of the property leased can be said to own the right and interest in property for the period of lease under the terms of lease and the property can be said to belong to him. So the necessary ingredients of a property being taken to belong to a person carries with it the idea and concept or right to use and possession over the property with full control and dominion over it and thus considered, when a property or premises owned by the State Government or the corporate authority is leased out for a limited period qua lessee the lessor is the owner of the property and in proceedings between the lessor and lessee or grantor of the lease and the lessee, it is possible to say that property belongs to the lessor but if the matter is qua lessee and the sublessee or a third person i.e. trespasser interfering with the possession, use and control of the lessee otherwise than in accordance with law the property may not be deemed to be public property as the property belonging to government or local authority when the possession and control of the lessee is interfered with and so far as with respect to the question of taking of proceedings by the government, grantor or lessee against the sublessee or trespasser is concerned to the extent that trespassers'' action causes interference with the right of user and dominion and control of lessee over the property is concerned and in such cases the remedy under sections 4 and 5 of the Act cannot be said to be available to the lessee of the public premises against a third person i.e. said sublessee or the person illegally interfering with his possession. This conclusion of mine is further fortified by the internal evidence of legislative intent furnished by sections 9 and 17 of the Act. Section 9 of the Act provides that an appeal shall lie from every order of the prescribed authority made in respect of a public premises under section 5 or 7 of the Act to the appellate officer and this right has been conferred and given to none else but to the person aggrieved from the order passed under section 5 or 7 of the Act. Under section 5 of the Act the prescribed authority has been empowered to pass the order of eviction of unauthorised persons for reasons to be recorded by it and section 7 of the Act empowers the prescribed authority to require the person concerned to pay rent or damages in respect of public premises by an order in writing so any person aggrieved by an order of eviction passed against him or by an order directing him to pay the rent and damages for the period of unauthorised occupation of the premises within a certain time but to none else. Sections 5 and 7 of the Act specify the nature of orders that ought to be passed if the requisite conditions under those provisions have been made out and fulfilled and section 9 of the Act confers a right to appeal to persons aggrieved from such an order i.e. it confers a right to appeal to the person who is or has been in unauthorised occupation of the premises and to none else. Section 17 of the Act makes a special provision with respect to government and corporate authorities on the basis of whose report or application the prescribed authority is to proceed under sections 4 and 5 of the Act that the State Government and the corporate authority shall always be a party to every proceeding under the provisions of U.P. Act No. 22 of 72. It does not so provide with respect to a private person from whom any information is gathered by prescribed authority in exercise of its powers under section 12 of the Act. Section 17 (2) further empowers and provides that the State Government or corporate authority, as the case may be, shall have the right to produce evidence and to examine the witnesses and these two i.e. State Government or corporate authority shall have also the right to file or prefer an appeal under section 9 of the Act against the order of prescribed authority refusing to make an order under of eviction under section 5 of the Act or refusing to make an order section 7 of the Act. The language of section 17 of the Act per se indicates that the legislature intended that in matters of public premises and proceedings under sections 4, 5 and 7 or that of appeal under section 9 of the Act there are two parties, namely, the State authority or corporate authority on one side and the unauthorised occupant on the other and none else. No right to produce any evidence or to examine any witness nor any right to file an appeal against an order of refusal of the Prescribed Authority to proceed or to pass an order of eviction under section 5 of the Act or refusing to make an order under section 7 of the Act requiring a person to pay rent or damages, has been conferred on any individual person. The right has only been conferred under section 17 of the Act to the State Government or to the corporate authority in case of refusal by Prescribed Authority to proceed. Thus considered, the scheme of the provisions of the Act appears to be that in the matters of public premises i.e. premises belonging to the State Government or local authority or taken on lease by it or requisitioned by it, the State Government or local authority or any person authorised on its behalf acting for and on behalf of it may move an application or submit its report to Prescribed Authority and initiate proceedings under section 4 and 5 of the Act but no person or individual is authorised to initiate any proceeding under these sections claiming his own right, interest or title against an unauthorised person. The Prescribed Authority has also been authorised to take suo motu action but in both the cases it has to form the requisite opinion first. The cases where a person is in possession or in user of the government property or public property as a lessee from the government or as a hire purchaser from the government or local authority and he is deprived of the limited rights or title of ownership absolute of user for limited period over the property leased, and, as such, is interfered with by illegal or unauthorised interference or occupation of that property after his own dispossession, such person cannot be said to be entitled to avail any remedy under section 4 or 5 of the Act. It is well settled principle of law that a right carries with itself a remedy to enforce it as well as carries with itself a right of remedy to protect itself from unlawful interference, with the enjoyment and user thereof before a forum prescribed by law. The Specific Relief Act vide sections 5 and 6 provide for relief and the forum provided is under section 9 of the Code of Civil Procedure i.e. civil court. Section 9 of the Code provides that the civil courts have jurisdiction to try all suits of civil nature except the one expressly or impliedly barred. Section 15 of the Act bars the jurisdiction of civil court in respect of eviction of any person said to be in unauthorised occupation of the public premises or in respect of recovery of arrears of rent payable under subsection (1) of section 7 of the Act or damages payable under subsection (2) of section 7 of the Act or costs awarded to the government or corporate authority under sub section (5) of section 9 of the Act or any portion. Thus considered, I find that proceedings for eviction of a person who has unauthorisedly occupied it after having deprived the lessee or grantee of that public premises by government of its user by him i.e. qua the lessee and the third person his being a sub lessee or trespasser, the building or nature of the building for the time being cannot be termed to be that of public premises as absolute right of user, dominion and control thereof for the limited period goes with the lessee under hire purchase agreement or the like and as proceedings in respect thereof cannot be taken by the lessee under Section 4 or 5 of the Act nor he has the right to file the appeal nor he is deemed to be a party in such proceedings. Section 15 of the Act cannot be taken and interpreted to either expressly or by necessary implication be deemed to exclude or oust the jurisdiction of the civil court to entertain a suit for eviction of a trespasser who has caused trespass and interference with the right, possession, use, dominion and control over that property of the lessee or person acquiring property under hire purchase agreement or acquiring possession in any other manner i.e. lawful manner from the State Government or corporate authority. The expression "in respect of eviction of any person who is in unauthorised occupation of any public premises" used in Section 15 of the Act refers to the cases in which proceedings can be taken and orders can be passed by the Prescribed Authority under Sections 4 and 5 of the Act. As such, neither the State authority nor local authority nor the Prescribed Authority can take any recourse for eviction of an unauthorised person in respect of public premises under Sections 4 & 5 of the Act but so far as the lessees or purchaser under hire purchase agreement or the like are concerned who have got possession of the property and right to enjoy the same from the government or the corporate authority on interference of their right in illegal manner by someone can only have recourse to the remedy available under the general civil law and not under the provisions of Sections 4 and 5 of the Act and when Act does not provide any remedy to cover such cases remedy under civil law and recourse to the jurisdiction of civil courts cannot be said to be barred by implication or, say, necessary implication. The case relied by Shri Sahdev Singh in this regard, namely, the decision given by this court in the case of Union of India v. Km. S. Begum reported in (1972 ALJ 307) is not of any help to the revisionists and is distinguishable in this case. It was held by this Court after having construed Section 16 of the Central Act i.e. Public Premises (Eviction of Unauthorised Occupants) Act, 1971 that in view of the provisions of Sections 4 and 5 of that Act read with Section 16 the Estate Officer could not take any action against unauthorised person in civil court. The court took the view as under :

"In my opinion Estate Officer cannot now file a suit for eviction of any unauthorised occupant in respect of whom he can take action under Sections 4 or 5 of the Act. In the circumstances it may be said that Estate Officer has no discretion in the matter in relation to premises covered by the Act or in relation to persons occupying the premises. For their eviction Estate Officer can take action only under the provisions of the Act he cannot take recourse to ordinary civil courts."

This court had very aptly pointed it out by observing in respect of whom he could take action under Section 4 or 5 of this Act i.e. if action against unauthorised person cannot be taken under Section 4 or 5 then remedy under civil court is not barred. The other case relied by Shri Sahdev Singh, learned counsel for the revisionistapplicants is M/S Bharat Petroleum Corporation Ltd. v. Union of India reported in (AIR 1992 Punjab 248) : that was a case in which Punjab and Haryana High Court had taken the view as under, after having considered the provisions of Section 2(c), (e)(g) and Section 15 of the Act. In this case M/S Bharat Petroleum Corporation has challenged the action of New India Bank and the Estate Officer for initiating proceedings under Sections 4 and 5 of the Central Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and the court took the view that the challenge was based on misconception. It held :

"On a plain language of the statute, it is not possible to hold that the said Company or Corporation would not be liable to eviction under the Act. Consequently the suggestion on behalf of the petitioners that the action of the respondents is wholly without jurisdiction or that it is repugnant to the provisions of the Act cannot be sustained."

In that context the court further pointed out the bar created under Section 15 against the jurisdiction of the civil court to entertain a suit or proceedings for eviction of such unauthorised occupants of the premises belonging to it. Those observations cannot be read in isolation and read in the context in which those observations have been made by Punjab and Haryana High Court, the said principles do not apply to the present case where the suit has been filed by the plaintiff who is admitted to be the hire purchaser of the accommodation. Thus considered, in my opinion, the jurisdiction of civil court to entertain Suit No. 42 of 1986 and to decree the same has not been barred by Section 15 of the Act and that being the position, in my view, the decree passed in that suit cannot be said to be suffering from inherent lack of jurisdiction or to be null or void and the contention made by the counsel for the revisionists on this ground to the effect that decree was without jurisdiction, null and void, is without substance and has got no merit. There is no doubt that a plea relating to jurisdiction and in particular relating to inherent lack of jurisdiction can be raised at any stage of the proceedings. The inherent lack of jurisdiction has always got to be differentiated from pecuniary lack of jurisdiction or defect of territorial jurisdiction. If a decree suffers from inherent lack of jurisdiction of the court, the decree may be said to be void and null and in an objection under Section 47 of the Code it is open to a party to raise that plea as well as to agitate that question under Section 115 of the Code because if the decree is null and void and execution court taking a decision otherwise proceeds to execute the decree then it may be said that it acts in excess of jurisdiction as no court has got jurisdiction to execute a decree which is null and void. But the question whether the decree is really null and void as contended by the learned counsel for the revisionists is a different thing There could be no dispute that the proposition of law to this extent and law to that extent has been laid down by the Supreme Court in the case of Kiran Singh v. Chaman Paswan (AIR 1954 SC 340) as well as in the case of Hira Lal v. Kali Nath reported in (AIR 1962 SC 199). Here in the present case when the dispute is between the present decreeholder, and the judgment debtor defendant who has admitted in the written statement and had stated as under :

''That with reference to paragraph 2 of the plaint it is admitted that the plaintiff had purchased the house in suit from Nagar Mahapalika Lucknow. It is also admitted that the plaintiff got the possession of the house in suit and from 8983 the defendants have been in exclusive possession over the house in suit in part performance of the contract of the sale as will be clear from the facts mentioned hereinafter.

It becomes admitted position that plaintiff''s possession as hire purchaser of the house in dispute and the fact of having obtained possession of the house in dispute from the Lucknow Development Authority or Nagar Mahapalika has been admitted. The further case of the plaintiff that the defendantjudgmentdebtors unlawfully entered into physical possession of the house on 8993 or otherwise as asserted by defendants is a different question but the admitted position comes out that when the defendants entered into physical possession of the house immediately prior to that plaintiff had been in full use, possession, enjoyment, dominion and control of that house on the basis of hire purchase agreement under title or under semblance of title and then defendant petitioner revisionist interfered with his position and deprived the plaintiff of his possession in an unauthorised manner as per the plaintiff''s case, therefore, the dispute here is with reference to the judgmentdebtors that they are in unauthorised occupation qua the plaintiffdecree holder and plaintiff has got a right qua plaintiff and defendants, the building in dispute was taking the nature of a private individuals'' property and so proceedings under Section 4 or 5 Act could not be initiated as plaintiffopposite party had no right thereunder to approach the Prescribed Authority. That being the position, in my opinion, the decree passed in Suit No. 42 of 1986 cannot be termed to be one suffering from the defect of inherent lack of jurisdiction on the part of the court passing the decree as Section 15 of the Act did not apply to the facts of the case.

Another contention of Shri Sahdev Singh was that plaintiff should have filed at the most the suit under Section 6 of the Specific Relief Act within a period of six months from the date of cause of action but the suit in the present case has been filed after a gap of a year or more and so the suit was barred by time. Such a plea does not touch the question of inherent lack of jurisdiction. This plea could have been raised if the judgmentdebtors had thought that there was any substance in the plea. Plea not having been raised at the stage of trial of the suit nor any issue having been raised before the trial of the suit nor is there any discussion of this plea in the judgment of this Court in the first appeal nor is there any assertion that any such plea was raised. In this view of the matter such a plea may be taken to have been waived by the present revisionist and had not been raised during the course of trial or at appellate stage i.e. in this Court in the course of first appeal being First Appeal No. 31 of 89, and as such, once it has been waived, it cannot be permitted to be raised at this stage of revision from the rejection of objection of under Section 47 of the Code, specially keeping in view the principle of law laid down by their Lordships of the Privy Council in the case of Mudanna Virayya v. Mudanna Adenna & others reported in (AIR 1930 PC 18). Relevant observations of their Lordships of the Privy Council read as under :

"It is true that the Limitation Act was mentioned in Adenna''s written statement and in his grounds of appeal, but before the trial Judge no issue was directed to bear upon the question, nor does the point appear to have been taken at the Bar during the trial."

"In these circumstances their Lordships did not think that the point was open on appeal." Applying this principle, I am of the opinion that when this plea was not raised at any stage during the course of the trial or during the course of the first appeal from decree which has been decided by this court, it would not be just and proper to permit the revisionist to raise this plea at this stage. This court in the case of Sunil Kumar Sharma v. M.M. Gaur and others reported in (1993) 2 ARC 179) has taken the view that to preclude a party from whom possession had been taken forcibly from maintaining a suit for recovery of possession on the ground of bar contained in Section 144(2) of the Code would result in manifest injustice and would permit the appellant to appropriate to himself the fruits of an illegal Act, which was found by the trial court to be bordering on contempt. This court had condemned the efforts to nonsuit a person on sheer technical ground as amounting to perpetuating the wrongful and illegal act resulting in injustice, and, as such, on this plea which has never been raised I do not think it proper to permit the revisionist to raise this plea. Keeping in view the principle of doctrine of constructive res judicata as well as that a plea which ought to have been raised not having been raised at the earlier stage debars the revisionistjudgment debtors to raise such a plea, it does not allow this plea of limitation or bar of limitation to the main suit.

Thus considered, in my opinion, there is no force in this revision and the revision is hereby dismissed with costs.

Revision dismissed.