ORDER
1. The opposite parties filed [CASE NUMBER] in the Court of [ENTITY], Purulia against one [ENTITY], petitioners and pro forma opposite parties for eviction of the defendants in the suit from the suit property. It was alleged that [ENTITY] was a monthly tenant at a rental of Rs. 30/-. The said tenant had sub-let the suit premises to the father of the petitioners and pro forma opposite party No. 4 without consent of the landlord. The plaintiff-opposite parties 1 and 2 served notice both under [SECTION] of the [ACT] and under [SECTION] of the [ACT] asking them to vacate the suit property. The suit ended in an ex parte decree on 20th June, 1986. In the ex parte judgment there is no finding as to service of a valid notice under [SECTION] of the [ACT] (hereinafter called the Act).
2. The said decree is sought to be executed by virtue of [CASE NUMBER]. The petitioners had filed an objection under [SECTION], [ACT] challenging the executability of the decree. It was urged before the executing court that the trial court did not find in the ex parte judgment that a valid notice under [SECTION] of the Act was served upon the tenant. In the absence of such a notice the Court had no jurisdiction to pass a decree. The learned [ENTITY] overruled the objection mainly on two grounds, viz., the court cannot challenge its own decree and that the petitioners being sub-tenants have no right to challenge the decree. By order No. 52 dated 29-7-89 [ENTITY], Purulia dismissed [CASE NUMBER] filed under [SECTION] of the [ACT].
3. Admittedly the plaintiffs alleged in the plaint that a valid notice was served upon the tenant. I have been taken through the ex parte judgment of the trial court. Trial court found default and granted eviction decree on that account. In the body of the judgment there is neither a finding as to the validity of a notice nor service thereof. Mr. [ENTITY] contends that the trial court had no jurisdiction to entertain a suit without a notice and so the decree is void. Plaint is not silent as to the service of a valid notice. The Court, however, does not find that there was no service of notice. Therefore, it cannot be urged that the suit for eviction was filed without a notice under [SECTION] of the Act. In the instant case there is an absence of finding as to the service of valid notice. Still the court granted a decree. Evidently therefore grant of a decree without a finding as to service of a valid notice is erroneous. Even a decree despite a finding that no valid notice was served is also erroneous. Such an erroneous judgment would be appealable. Instead, objection is untenable. We must not overlook the distinction between an erroneous or illegal judgment and a judgment without jurisdiction or a void judgment. While the former is appealable the latter is unexecutable and can even be challenged in a collateral proceeding.
4. Mr. [ENTITY] relies upon the decision in [ENTITY] Singha v. Santosh Kumar Srimani, (68 CWN 184), which has been approved of by a Full Bench in [PRECEDENT], . In [ENTITY]'s case the Division Bench held that the notice under [SECTION] of the Act was invalid. Reliance is placed upon the observation of the Bench "it is, in essence, a point of jurisdiction or, in other words, the Court has no jurisdiction to entertain the suit in the absence of such a notice." These decisions have no application in the present case. It has already been pointed out that the Court did not find that there was no valid notice. As a matter of fact, there is an absence of finding in this behalf. These decisions are no authorities to the proposition that adecree shall be void without a finding as to service of notice.
5. [ENTITY]'s case only lays down that the Court has no jurisdiction to entertain a suit in the absence of such a notice. If the Court assumes jurisdiction even in the absence of notice it will be an erroneous assumption of jurisdiction and such an erroneous decree is appealable only. In other words, this may be a case of irregular exercise of jurisdiction as distinguished from inherent want of jurisdiction. The former is impeach-able in appeal while the latter is void.
6. Mr. [ENTITY] marks a distinction between an embargo or constraint upon the Court as contemplated under [SECTION] of the Act and an embargo or a constraint upon a party under [SECTION] of the Act.
[SECTION] Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds
7. Having regard to this embargo imposed upon the Court it was held by the Supreme Court that a decree dehors any ground for eviction contemplated under [SECTION] is void ([PRECEDENT], ; [PRECEDENT], ). Court found that in the absence of a ground for eviction as envisaged under [SECTION] of the Act the Court has no jurisdiction to grant a decree.
8. [SECTION] of the Act has been couched in a different language.
[SECTION] "Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in sub-section(1) except the grounds mentioned in clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of tenancy."
9. Mr. [ENTITY] contends that court cannot overlook the distinction. It is a legal constraint cast upon the landlord. He cannot file a suit for eviction without the notice contemplated under [SECTION] of the Act. If he files a suit without such notice court may dismiss the suit. It casts no obligation upon the court to refuse entertainment of the suit nor mandatorily asks the Courts to refuse a decree unlike [SECTION] of the Act. It is true that a decree in a suit without such notice is assailable in appeal. But absence of notice does not take away the jurisdiction of the court either to entertain a suit or to pass an erroneous decree.
10. Relying upon the Supreme Court decision in [PRECEDENT], Mr. [ENTITY] contends that it is the duty of the court to look to [SECTION] of the [ACT] before it grants a decree. But the decree does not become void, as has been held by the Supreme Court, if the court overlooking the bar of limitation grants a decree. Such a decree may be illegal but not without jurisdiction.
11. In spirit this was the view entertained by [ENTITY] and [ENTITY], JJ. in a Division Bench decision in [PRECEDENT], . It was sought to be argued that the Court's decision on other issues cannot operate as res judicata since the decree of dismissal on account of want of a valid notice under [SECTION] of the Act is without jurisdiction. In repelling the argument it was held that despite a finding as to the absence of a valid notice court had jurisdiction to decide other issues. This decision therefore lends support to Mr. [ENTITY]'s contention that despite absence of notice court had jurisdiction to decide the suit. This decision did not overlook the decision in [ENTITY] (supra) nor the Full Bench decision in [PRECEDENT]'s case (supra).
12. The question may be approached from other point of view. The defendant in a suit can very much waive a notice. Waiver of notice is not impermissible in law. It will be so evident also from the tenor of judgment in [ENTITY]'s case (supra) relied upon by Mr. [ENTITY]. As a matter of fact, by a long line of decisions it has been settled that the defendant can waive a notice under [SECTION] of the [ACT]. The same reasoning will be applicable here. But the defendant in a suit cannot waive the ground of eviction as envisaged under [SECTION] of the Act. Supreme court struck down a compromise decree dehors the ground of eviction. In some form or other, e.g. admission, evidence the ground must be present on the record, [PRECEDENT], ; [PRECEDENT], ; [PRECEDENT], ; [PRECEDENT], . Here lies the distinction.
13. I am therefore in agreement with Mr. [ENTITY] that the ex parte decree is not assailable under [SECTION] of the [ACT]. The [ENTITY] rightly dismissed the miscellaneous case. I find no reason to interfere with the order of the Court. The revisional application accordingly fails. Let a copy of this order go down to the Court below forthwith.
14. Revision dismissed.