Satyaprakash Sarkar and Others vs Jagannath Mahaprabhu

Patra, J.—This appeal directed against an Appellate order of the Additional Subordinate Judge, Pori and arises out of an application u/s 47, CPC filed by the Appellants objecting to the execution of a decree passed against them. Late Asutosh Sarkar the father of the Appellants had taken lease of the decretal land from the Respondent on 5-10-1910 for a period of 40 years on annual rental of Rs. 100/-. The material stipulation in the lease deed which was executed by the lessee provides in Clause (VI) thereof:

(VI) If after the expiry of the period of the lease there is no renewal thereof by fresh arrangement, I and my successor-in-interest shall give up possession of the lease-hold land and leave the same in the khas Dakhal of yourself or your successor-in-interest after the right, title and interest under the patta had ceased, upon receiving by way of compensation due and proper value at the then prevailing rate of the pucca and kutcha houses and garden (Bagayat) constructed by me from you or your his and successors-in-interest.

After the expiry of the period of the lease on 5-10-1950 the successors-in-interest of the lessee, namely the Appellants did not renew the lease inspite of notice by the lessor to that effect. The Respondent-lessor thereupon instituted O.S. No. 294 of 1954 on 9-8-1954 in the Court of the Munsif, Puri praying therein that after demolition of the structures standing on the lease-hold property at the cost of the Appellants, vacant possession of the disputed land might be given to him. The suit was resisted on several grounds. Inter alia it was averred in the written statement that with the hope of remaining on the land as permanent tenant thereof, the Appellants had at a cost of Rs. 30000/. constructed pucca and kutcha structures thereon, that they were prepared to take further renewal of the lease-hold property and that the Plaintiff-Respondent was not entitled to recover possession of the land. Issues Nos. 3 and 4 as framed in the suit ran as follows:

Is the Plaintiff entitled to eject the Defendants and get khas possession?

If at all can the Plaintiff get any relief without paying the valuation (i.e. Rs. 30000/-) to the Defendants.

The Munsif decreed the suit in favour of the Respondent directing that he was to recover possession of the property after demolition of the structures standing thereon at the cost of the Appellants. The Appellants filed an appeal against that decree. By order dated 24-1-1961, the appeal was allowed and the suit was remanded to the trial Court for fresh trial as the issue which related to the value of the structure and gardens etc. was not dealt with in the judgment. The suit was then retried after remand and on 15-11-1901, the trial Court passed a decree directing that the Plaintiff was to recover the suit land from the Defendants-Appellants after payment of Rs. 1000/- towards the present cost of the houses standing : on the suit land to he Defendants. It was further provided that if the Defendants express this unwillingness to receive Rs. 1000/-, the Plaintiff would be at Uberty to deposit the amount in Court and take delivery of the suit land with the structure standing : thereon. As against this decree the Appellants filed an appeal in the Court of the Subordinate Judge. One of the points urged in appeal was that the suit might be remanded again to the trial Court to give a chance to the Appellants to adduce evidence regarding valuation of the structure. The learned Subordinate Judge rejected the prayer with the observation that the Appellants had not availed themselves of the chance already given to them and this prayer could not he allowed. The appeal was dismissed. As against this decision S.A. No. 614/64 was filed in this Court. But it was dismissed on 17-8-1966.

Thereafter the Respondent filed Ex. Case No. 270/64 in the Court of Munsif, Puri for recovery of ''Possession of the property and deposited the amount of Rs. 1000/- towards compensation of the structures standing on the land as ordered in the judgment of the trial Court. The Appellants objected to the execution of the decree and filed an application u/s 47, Civil Procedure Code. It was contended there that the correct interpretation of Clause (VI) of the lease deed would show that the question of compensating the Appellants upon due and proper valuation of the structures and bagayat etc. at the current prevailing rate does not arise until the question of termination of the lease and restoration of khas possession of the land to the Respondent was decided upon by the competent Civil Court, that due to misconception and confusion regarding the interpretation of the Clause (VI) in the Kabuliyat, the trial and Appellate Courts had wrongly entered into issue No. 4 relating to the question of valuation of the structures and Bagayats etc , that this findings are beyond the scope of the suit, that the valuation is arrived at on scanty and insufficient evidence and that therefore the executing Court should fix the valuation afresh and possession of the property might be delivered to the Respondent only after he paid to the Appellants the value of the properties as determined by the executing Court. This application u/s 47, CPC was rejected by the learned Munsif and he directed that execution should proceed. Against this order the Appellants filed an appeal before the Additional Subordinate Judge, Puri who dismissed the appeal by order dated 5-1-1968. It is against that order that the present appeal has been filed.

Two main contentions are put forward by Mr. M. Mohanty appearing for the Appellants and they are:

(1) In total disregard of the relevant terms of the lease deed regarding payment of the cost of the super structures standing on the disputed land as condition precedent to taking delivery of possession of the property, the Plaintiff brought the suit for taking khas possession of the property after demolition of the structures standing thereon and consequently did not make any specific prayer in the plaint that the super structures should be valued by the Court and as such the Court had no jurisdiction to fix the valuation. That being so, the decree fixing the valuation of the super structures is a nullity which can be disregarded by the executing Court.

(2) The clause ''the then prevailing price'' in Clause (VI) of the lease deed meant that the super structures should be valued at the time of delivery of possession of the disputed land to the Respondent and that consequently the property could not have been valued at the time the suit was decided.

The second contention is dearly unsustainable. Clause (VI) of the lease deed provides that it is on payment of the cost of the super structures standing on the disputed land that the Plaintiff would be entitled to recover possession of the property. This valuation should therefore precede actual delivery of possession and cannot either be simultaneously or subsequent to the delivery of possession at contended by Mr. Mohanty. In fact Mr. Mohanty conceded during hearing that the Plaintiff instead of praying for recovery of possession of the disputed property after the demolition of the structures standing thereon could have prayed the Court for determining the valuation of the super structures etc. and make it a condition precedent to taking delivery of possession that the value so fixed should be paid by the Respondent to the Appellants. Whether in the absence of such a specific prayer by the Plaintiff it was open to the trial Court to value the property is a different question altogether and is coverers by the first contention formulated by Mr. Mohanty. The second contention accordingly must be rejected.

The first contention raised by Mr. Mohanty relates to the jurisdiction of the Court to decide the question of valuation. Jurisdiction of a Court depends upon three circumstances namely, (i) pecuniary, (ii) territorial and (iii) jurisdiction over the subject matter and if these conditions are fulfilled the Court can be said to have jurisdiction. In the present case there is no dispute that the Court was competent to deal with the parties, the subject matter and it is not contended that it as lacking in pecuniary jurisdiction. The only contention advanced on behalf of the Appellants is that since the plaint did not contain a prayer that the properties should be valued it was not within the jurisdiction of the Court to fix the valuation and that therefore the decree 80 far as it fixes the valuation of the property is void. It therefore appears to me that the objection raised by Mr. Mohanty is not regarding lack of inherent jurisdiction in the Court hut it relates purely to the exercise of the jurisdiction which the Court undoubtedly possesses. The question therefore is whether where 8 Court possesses jurisdiction but exercises it wrongly, the decree passed by it is a void decree. The answer must be in negative. The jurisdiction is the power to determine. It does not depend upon the regularity if the exercise of that power or upon the correctness of the decision pronounced because the power to decide necessarily carried with it the power to decide wrongly as was as rightly. If the Court decides wrongly it is open to the wronged party to take the course prescribed by law for setting matters right. But it will not be correct to say that because of the wrong exercise of the jurisdiction or the wrong decision given by it, the decision or the Court itself is void. It may be incidentally pointed out that in the very application u/s 47, CPC filed by the Appellants before the executing Court the specific prayer made is that the executing Court should embark upon a fresh enquiry regarding the valuation of the property. If the Court which tried the suit lacked in jurisdiction to adjudicate on the question of valuation it is not understood how the executing Court can have such jurisdiction. Mr. Mohanty has not been able to refer to any decision where a decree passed by a Court in respect of a matter which was not specifically prayed for in the plaint had been held to be a decree without jurisdiction bond consequently void. Decrees which u/s 47, CPC can be challenged are those which are passed by Courts lacking in inherent jurisdiction. Reference in this connection may be made to a decision of the Supreme Court in Ittavira Mathai Vs. Varkey Varkey and Another, , where this Lordships held that where a Court having jurisdiction over the subject-matter and the party, passes a decree, it cannot be treated as a nullity and ignored in subsequent litigation even if the suit was one barred by time. It is true that Section 3 of the Limitation Act is mandatory and that it is the duty of the Court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. Even so it cannot be said that where the Court falls to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of Jaw and an error of Jaw can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity. The case reported in Kiran Singh and Others Vs. Chaman Paswan and Others, , on which Mr. Mohanty relies does not in any way support his contention. It merely reiterates the principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity can be set up even at the stage of execution. The same principle is enunciated in several other decisions referred to by the learned Counsel of both sides and it is not necessary to make a detailed reference to them. As stated before not a single decision has been cited before me in support of the proposition that where It Court has got jurisdiction over the parties and the subject-matter and the matter in dispute is within its pecuniary jurisdiction and it passes a decree giving a relief which has not been specifically prayed for, the decree is a nullity.

It is conceded by Mr. Mohanty that on the basis of the pleadings as they stand the trial Court would have been with in its jurisdiction to frame the following issues:

(a) Is the Plaintiff entitled to possession without payment to the Defendants the cost of supper structures standing on the land; and

(b) If not what is the compensation the bound to pay to the Defendants as precedent to recover possession.

His complaint is that in the absence of such specific issues it was not within the jurisdiction of the Court to fix the valuation of the super structure. Instead of the issues, being so specific, issue No. 4 as framed by the Court as already indicated is ''can the Plaintiff get any relief (regarding possession) without paying the valuation (Rs. 30000/-) to the Defendants?'' I fail to see what material difference there is between the issue No. 4 as framed and the issues suggested by Mr. Mohanty. It was open to the Defendants in the trial Court to ask for proper amendment of issue No. 4, but that was not done. When the suit was first decided, issue No. 4 was not properly dealt with by the trial Court. Hence the Court of appeal remanded the suit with the following observation:

Paragraph 6 of Ex. 1 (the Kabuliyat) is to the effect that if after expiry of the term of the lease, the lease is not renewed the lessees would vacate possession of the suit land after receiving from the Plaintiff the prevailing price of the buildings that they have constructed thereon. Issue No. 4 deals with the said question. But as I have already pointed out; that question has not been discussed in the body of the judgment. On the other hand an order has been passed for dismantling the buildings. Therefore, I am of opinion, that the learned trial Court has not applied his mind to the said question. As this is one of the main issues in the suit, I am of opinion, that for ends of justice the suit should be remanded. As the suit is going to be remanded to the trial Court, the Defendants may also be given a chance to cross-examine p.w. 1 and adduce evidence in support of this claim.

It is therefore clear from the judgment of the Appellate Court that the suit was remanded to the trial Court mainly for the purpose of giving an opportunity to both the parties to adduce necessary evidence regarding the cost of the super structures. In fact, I find that after remand both the parties did lead evidence on this point although it must be said that the evidence let in on both sides is rather very scanty. Why sufficient evidence has not been let in on the question of valuation by the Defendants is not for me to say. It may be that the Defendants were concentrating on this claim that they were entitled to a renewal of the lease. Whatever may be the reason they cannot be beard to say in view of the specific observations made by the Appellate Court, that they still believed, that the enquiry regarding valuation was not within the scope of the suit. After remand the trial Court fixed the valuation of the super structures at Rs. 1000/- and ordered that the Plaintiff would be entitled to recover possession of the land only after payment of Rs. 1000/- to the Defendants. The Defendants carried the matter in appeal and one of the points urged before the Appellate Court was that the valuation fixed by the Court was too low. The learned Appellate Court gave its own reasons for overruling this contention. A Second Appeal was carried to this Court by the Defendants, but it does not appear to have been agitated here either that the fixation of valuation of super structures was beyond the scope of the suit and did not arise out of the pleadings or that the Defendants were in any way misled and could not adduce proper evidence regarding valuation. They concentrated again on this contention that they were entitled to a renewal of the lease which was duly negatived by this Court. The circumstances stated above therefore clearly show that even if any is regularity was committed by the Courts below in the matter of valuation of the super structures, the Defendants were in no way mixed and were not thereby prejudiced. If at all any prejudice is caused to them in the matter of fixing the valuation of super structures, it is entirety due to this own latches.

On a careful and-anxious consideration of the submissions made by both parties, I find that there is no merit in this appeal which is accordingly dismissed, but in the circumstances of the case without costs.