ON civil Appeal No 4032 of 1984
From the Judgment and Order dated 13121983 of the Madras High Court in Second Appeal No 166 and CMP No 1714 of 1983
UR Lalit and section Srinivasan for the Appellant
Dr YS Chitale Darshan Singh Praveen Kumar and Sumit Sen for the Respondent
The judgment of the Court was delivered by THOMMEN J
The appellant the East India Corporation Limited is the defendant in OS No 623 of 1980 which is a suit instituted by the respondent Shree Meenakshi Mills Limited for recovery of possession of a building on the ground of arrears of rent etc
The respondent plaintiff alleged that the appellant defendant was the tenant of the building in question and that it has not paid the agreed rent of Rs 900 per month for a long period despite persistent demands and has thus been in wilful default of payment of the agreed rent
The appellant denied these allegations
It specifically denied any relationship of landlord and tenant between the parties and contended that its occupation of the building was not as a tenant of the respondent but as one of its associates or co sharers or co owners
The suit was decreed
The decree of the learned Munsif was affirmed in appeal by the First Appellate Court as well as by the High Court
All the three courts rejecting the appellant s contentions 314 to the contrary found that it was a tenant of the respondent it questioned without bona fide the respondent s title as landlord it was in default of payment of rents and if was liable to be evicted from the building
Against these concurrent findings the present appeal was brought to this Court by means of a special leave petition
Leave was granted by order of this Court dated 24984
At the time of the institution of the suit or the grant of leave by this Court the building in question did not come within the purview of the Tamil Nadu Buildings Lease and Rent Control Act 1960  the Act  for the agreed rent as alleged by the plaintiff respondent and as found by all the courts was Rs 900 per month and as such was outside the limit prescribed under section 30ii of the Act for a residential building to fall within the statutory ambit
Section 30 as it stood at the relevant time stated 30
Exemption in the case of certain buildings
Nothing contained in this Act shall apply to i any building for a period of five years from the date on which the construction is completed and notified to the local authority concerned or ii any residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeds four hundred rupees
 Clause ii of section 30 was however struck down by this Court in Rattan Arya  Ors
vs State of Tamil Nadu  Anr
  This Court stated 
Section 30ii of the Tamil Nadu Buildings Lease and Rent Control Act 1960 has to be struck down as violative of Article 14 of the Constitution
A writ will issue declaring Section 30ii as unconstitutional
As a result of this declaration of the constitutional invalidity of section 30ii the Act in question according to the appellant has to be read as if clause ii of section 30 was never brought into force and consequently all residential buildings which are older than five years see clause i of section 30 and let out for whatever rent came within the ambit of the Act
Accordingly although the suit was properly 315 instituted in the civil court without regard to the special provisions of the Act it is now contended that as a result of the declaration by this Court of the constitutional invalidity of clause ii of section 30 which excluded from the purview of the Act any building or part thereof let out on a monthly rent of Rs 400 the decree of the civil court whatever be the merits of the findings on the respective contentions of the parties has become null and void and of no effect whatever
This contention of the appellant is based on the principle that any decree passed by an incompetent court is a nullity
The appellant s counsel relies on the principle reiterated by this Court in Sushil Kumar Mehta vs Gobind Ram Bohram  and the earlier decisions referred to therein on the point
In Kiran Singh  Ors
vs Chaman Paswan  Ors  at 121 Venkatarama Ayyar J pointed out  
It is a fundamental principle well established that a decree passed by a court without jurisdiction is nullity and that its invalidity could be set up whenever and where ever 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
If the question now under consideration fell to be determined only on the application of general principles governing the matter there can be no doubt that the District Court of Monghyr was coram no judice and that its judgment and decree would be nullities Dr YS Chitale appearing for the respondent however submits that the decree passed by the civil court in the present case is not a nullity for the Act has not barred the jurisdiction of the civil court but only prohibits execution of a decree for eviction otherwise than in accordance with the relevant statutory provisions
Such a decee he says is not void but is merely under an eclipse and will become executable as and when the bar is removed
He refers to section 10 of the Act which reads  section 10
Eviction of tenants 1 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 14 to 16 316         
Relying on certain observations of this Court in BV Patankar  Ors
vs CGSastry  in the context of the Mysore House Rent and Accommodation Control Order 1948 Dr Chitale submits that like in that case what is prohibited by section 10 in the present case is execution of the decree and the validity of the decree as such is not affected
We do not agree
Section 9 of the Mysore House Rent and Accommodation Control Order 1948 reads  section 91 A tenant in possession of a house shall not be evicted therefrom whether in execution of a decree or otherwise except in accordance with the provisions of this clause
          Section 16 of that Order reads section 16
Nothing in this order shall prevent a landlord from filing a suit for eviction of a tenant before a competent civil court provided that no decree for eviction of a tenant passed by a civil court shall be executed unless a certificate to that effect is obtained from the Controller
 Section 16 of the Mysore Order 1948 thus specifically allows the institution of a civil suit for eviction of a tenant although a decree passed by such a court for eviction cannot be executed without a certificate to that effect from the Controller
Jurisdiction of the civil court is thus not only not barred but specifically preserved except for the restriction imposed on the execution of decrees in matters of eviction
On the other hand such a provision is significantly absent in the enactment in question The provisions of the Mysore Order considered by this court in BV Patankar  Ors
vs CSSastry  and those of the Act in question here are not in pari materia
The observations of this Court relied on by Dr Chitale are not therefore helpful in understanding the provisions in question in the instant case
Section 10 of the Act as seen above prohibits eviction of a tenant whether in execution of a decree or otherwise except in accordance with the provisions of that section or sections 14 to 16
These provisions as well as the other provisions of the Act are a self contained code regulating the relationship of parties creating special rights and liabilities and providing for determination of such rights 317 and liabilities by tribunals constituted under the statute and whose orders are endowed with finality
The remedies provided by the statute in such matters are adequate and complete
Although the statute contains no express bar of jurisdiction of the civil court except for eviction of tenants in execution or otherwise the provisions of the statute are clear and complete in regard to the finality of the orders passed by the special tribunals set up under it and their competence to administer the same remedy as the civil courts render in civil suits
Such tribunals having been so constituted as to act in conformity with the fundamental principles of judicial procedure the clear and explicit intendment of the legislature is that all questions relating to the special rights and liabilities created by the statute should be decided by the tribunals constituted under it
Although the jurisdiction of the civil court is not expressly barred the provisions of the statute explicitly show that subject to the extra ordinary powers of the High Court and this Court such jurisdiction is impliedly barred except to the limited extent specially provided by the statute
See in this connection the principle stated by this Court in Dhulabhai  Ors
vs The State of Madhya Pradesh  Anr  See also Secretary of State vs Mask  Co 1939 40 1A 222 PC Raleigh Investment Co Ltd vs Governor General in Counsil
1946 47 IA 50 PC and Barraclogh vs Brown  Ors Judged by this test the jurisdiction of the civil court in respect of eviction of tenants is barred except to the extent and subject to the conditions prescribed under Section 10
The second provision to section 101 reads Provided further 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
What is stated in the second proviso to section 101 is the sole circumstance in which the civil court is invested with jurisdiction in matters of evictions
But this jurisdiction cannot be invoked otherwise than as stipulated in the second proviso
This means that the condition 318 precedent to the exercise of jurisdiction by a civil court is that the tenant should have denied the title of the landlord or claimed right of permanent tenancy and the Controller should on such denial or claim by the tenant reach a decision whether such denial or claim is bona fide
Upon such decision the Controller must record a finding to that effect
In that event the landlord is entitled to sue for eviction of the tenant in a civil court
Where these conditions are satisfied the civil court will have jurisdiction to pass a decree for eviction on any of the grounds mentioned in section 10 or Sections 14 to 16 notwithstanding that the Court has found that the tenant s denial of the landlord s title does not involve forfeiture of the lease or his claim of right of permanent tenancy is unfounded
Except to this limited extent the jurisdiction of the civil court in matters of eviction of a tenant is completely barred and the jurisdiction in such matters is vested in the tribunals set up under the statute
Significantly the jurisdiction of the civil court can be invoked only where the controller comes to a decision and records a finding that the denial or claim by the tenant as aforesaid is bona fide
If the Controller were to come to the opposite conclusion no question of invoking the jurisdiction of the civil court would arise
But the decision of the controller is concerned solely with the bona fides and not the correctness or validity of the denial or claim for these difficult questions of title are by the statute reserved for decision by the appropriate civil court which is the more competent forum in such matters See the principle discussed in Magiti Sasamal vs Pandap Bissoi In such an event the civil court will become competent to pass a decree for eviction on any of the grounds mentioned in section 10 or sections 14 to 16
On the other hand if the decision of the controller is that the tenant s denial or claim is not bona fide the jurisdiction of the civil court cannot be invoked by the landlord and the Controller will then be the competent authority to order eviction after affording the parties a reasonable opportunity of being heard on any one of the grounds specified under the statute including the ground that the tenant has without bona fide denied the landlord s title or claimed right of permanent tenancy
What is significant is that the decision of the Controller duly recorded by him as regards the bona fide denial or claim by the tenant is the condition precedent to the invocation of power of the civil court
Any suit instituted by the landlord for eviction of a tenant from a building falling within the ambit of the Act otherwise
Than as stipulated by the section is therefore incompetent for lack of jurisdiction of the Court and any decree of the Court in such a suit is null and void and no effect
319 In the present case the procedure stipulated in the second proviso to section 10 has not been complied with
At the time of the institution of the suit the building in question did not come within the ambit of the Act owing to the exclusionary provision contained in clause ii of section 30 but after leave to appeal was granted by this Court the applicability of the Act was extended to the building by reason of the decision of this Court in Rattan Arya  Ors
vs State of Tamil Nadu  Anr  declaring the invalidity of clause ii of section 30 on account of its inconsistency with Article 14 of the Constitution
Whatever be the consequence of that declaration whether it has rendered the statutory provision null and void and of no effect
See Behram Khurshed Pesikaka vs The State of Bombay and Saghir Ahmed vs The State of UP and others  or merely inoperative unenforceable and dormant to be revitalised on subsequent removal of the constitutional ban
See Bhikaji Marain Dhakras and Others vs The State of Madhya Pradesh and Another  and MPV Sundararamier  Co vs The State of Andhra Pradesh  Another  in either event the Civil Court acting without the aid of the exclusionary provision in clause ii of section 30 during the period of invalidity has become coram no judice and its proceedings resulting in the decree a nullity
See Kiran Singh  Others vs Chaman Paswan  Others  at 121
In the circumstances we set aside the decrees of the courts below
The appeal is allowed and the appellant is entitled to costs throughout
RP Appeal allowed


Summary:
The respondent was appointed in the appellant Corporation and put on probation for a period of two years
About three month s after the completion of two years  period he was served with one month s notice for termination of his service
Challenging the termination order the respondent filed a suit for declaration that the termination without enquiry and opportunity of being heard was violative of Rule 9A of the Madhya Pradesh Civil Services Classification Control and Appeal Rules 1966 and that he became a permanent employee of the Corporation with continuity of service and arrears of salary
The trail court dismissed the suit and appeal it was confirmed
The High Court allowed the respondent s second appeal and decreed the suit
In the appeal by special leave before this Court on behalf of the appellant Corporation it was contended that the respondent being a probationer would acquire permanent status only on confirmation that the High Court had committed manifest error in law in holding that on the expiry of two years  period of probation the respondent must be deemed to have been confirmed under Rule 14 of the Municipal Officers  and Servants  Recruitment Rules which were no longer in force and that Rule 8 of the Madhya Pradesh Government Servants  General Conditions of Service expressly proved confirmation of probation as a condition precedent and since notice terminating respondent s service was issued in terms of the rules before confirmation it was valid in law
On behalf of the respondent it was contended that by operation of the resolution passed by the Municipal Corporation under Section 25 of 321 the Central Provinces and Bearer Municipality Act 1922 the Municipal Officers and Servants was governed by recruitment rules thereunder that since no action was taken by the appellant Corporation to dispense with the respondent s service on the expiry of the period of two years as envisaged in Rule 14 of the Municipal Officers  and Servants  Recruitment Rules the respondent must be deemed to have been confirmed and consequently the only power the Corporation had was to terminate the respondent s service in accordance with the classification Control and Appeal Rules after conducting an enquiry and giving him reasonable opportunity that too for misconduct but since no such procedure was adopted the notice was illegal and the High Court was justified in granting the decree
Allowing the appeal this Court HELD 11 Under the Note to sub rule 2 of Rule 8 of the Madhya Pradesh Govt
Servant s General Conditions of Service Rules 1961 if the probationer is neither confirmed nor discharged from service at the end of the period of probation he should be deemed to have been continued in service as probationer subject to the condition of his service being terminated on the expiry of a notice of one calendar month given in writing by either side
As per sub rule 6 on passing the prescribed departmental examination and on successful completion of the period of probation the probationer should be confirmed in the service or post to which he has been appointed
Then he becomes an approved probationer
Therefore after the expiry of the period of probation and before its confirmation he would be deemed to have been continued in service as probationer
375F H 12 Confirmation of probation would be subject to satisfactory completion of the probation and pass in the prescribed examinations
Expiry of the period of probation therefore does not entitle him with a right to deemed confirmation
The rule contemplates to pass an express order of confirmation in that regard
By issue of notice of one calendar month in writing by either side the tenure could be put to an end
326A B 13 If the rules do not empower the appointing authority to extend the period of probation beyond the prescribed period or where the rules are absent about confirmation or passing of the prescribed test for confirmation of probation inaction for a very long time may lead to an indication of the satisfactory completion of probation
327D E 322 14 Rule 8 expressly postulates otherwise
Hence mere expiry of the initial period of probation which is subject to extension for another period of one year does not automatically have the effect of deemed confirmation and the status of a deemed confirmation of the probation
An express order in that regard on fulfillment of the conditions stipulated in the Rule only confers the status of approved probation327E F State of Punjab vs Dharam Singh   Om Prakash Maurya vs UP Co op
Sugar Factories Federation Lucknow  Ors
  MA Agarwal vs Gurgaon Bank  Ors and State of Gujarat vs Akhilesh C Bhargav  Ors   distinguished
15 Note to sub rule 2 read with sub rule 6 of Rule 8 manifest she legislative intent that confirmation of the probation of the respondent would be made only on successful completion of the probation and the passing of the prescribed examinations
The respondent shall therefore be deemed to be continued an probation
Before confirmation the appointing authority is empowered to terminate the service of the probationer by issuing one calendar month s notice in writing and on expiry thereof the service stands terminated without any further notice
Within three months from the date of expiry of original two years period of probation and within th extendable period of one year the order of termination was made
Hence the question of conducting an inquiry under the Classification Control and Appeal Rules after giving an opportunity and that too for specific charges does not arise
327G H 328A In the circumstances the High Court committed manifest error of law in decreeing the suit
328B 2
By virtue of the resolution passed by the Municipal Council which subsequently became Municipal Corporation making a draft bye law  exercising power under section 1732 of the Madhya Pradesh Municipal Act 1922 and confirmed under Section 251 of the Act adopting Government rules to regulate the conditions of service of officers and servants of the Municipal Committee the Fundamental Rules Civil Service Regulations Government Servants  Conduct Rules and General Book Circulars of the State Government as amended from time to time etc would apply to the officers of the Municipal Committee and the previous rules were superseded and were no longer in force
Hence the reliance placed by the High Court on Rule 14 of the Municipal Officers  and Servants  Rules is wrong
324D E G H 323