IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.03.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA C.R.P.(NPD).No.2328 of 2004 & C.M.P.No.17529 of 2004 T.K.Ayub .. Petitioner/Applicant Vs. 1. Mohammed Hanif 2. Mohammed Halid 3. Jameelabi .. Respondents/Respondents Civil Revision Petition filed under Section 115 of C.P.C against the order dated 16.3.2004 in E.A.No.157 of 1999 in E.P.No.237 of 1998 in O.S.No.50 of 1977 on the file of the Principal District Munsif Court, Pondicherry. For petitioner : Mr.T.P.Manoharan For respondents: Mr.T.R.Rajagopalan, Senior Counsel for Mr.T.R.Rajaraman ORDER The Civil Revision Petition arises out of the order of dismissal, dated 16.3.2004 in E.A.No.157 of 1999 in E.P.No.237 of 1998 in O.S.No.50 of 1977 on the file of the Principal District Munsif Court, Pondicherry. 2. The petitioner has filed E.A.No.157 of 1999 under Section 47 read with 151 of the Civil Procedure Code, to dismiss the Execution Petition in E.P.No.237 of 1998, as the decree dated 21.6.1977 in O.S.No.50 of 1977 is unexecutable, unenforceable and nullity in law, stating that the trial Court has no jurisdiction to entertain the suit and so, the decree itself is non-est in the eye of law. Further, the petitioner pleaded that even after the decree has been passed, the respondents herein as decree-holders, earlier filed E.P.No.279 of 1980, which was allowed, against which the petitioner herein filed C.M.A.No.5 of 1981 before the Principal District Court, Pondicherry, in which, there was an endorsement made by the decree- holders not pressing the relief for certain portion of the decree. Even then, the petitioner continued to be cultivating the crops other than paddy in a portion of the land, whenever sufficient water was not available. After a lapse of nine years, the respondents herein filed another execution petition in E.P.No.17 of 1990, which was https://hcservices.ecourts.gov.in/hcservices/ allowed on 5.7.1990 and against that, the revision petitioner herein preferred C.R.P.No.2160 of 1990 before this Court and on 19.4.1996, this Court allowed the said C.R.P. and set aside the order of arrest passed in E.P.No.17 of 1990. Furthermore, the petitioner has averred that with the knowledge of the decree-holders (the respondents herein), the revision petitioner raised crops other than paddy, as agreed in the lease deed and hence, the decree-holders are estopped by law of acquiescence. The revision petitioner herein prayed for allowing E.A.No.157 of 1999 and for dismissing E.P.No.237 of 1998 in O.S.No.50 of 1977, stating that the decree itself is nullity. 3. The respondents herein, the decree-holders, resisted the E.A by stating that the respondents herein have filed the suit for bare injunction restraining the revision petitioner/defendant from raising the crops other than paddy and after contest, the decree has been passed and no appeal was filed and it is final and binding on both parties. In pursuance of the same, the E.A. is not maintainable. Furthermore, the respondents/decree-holders stated that they filed another E.P.No.279 of 1980 for attachment of the crops raised in violation of the decree of injunction and also to restore the land in its original status, and the said E.P.No.279 of 1980 was allowed. In the course of the subsequent E.P. filed by the respondents herein in E.P.No.17 of 1990, since the executing court found violation, E.P.No.17 of 1990 was allowed, against which, C.R.P.No.2160 of 1990 was filed by the revision petitioner herein, before this Court and this Court held that the order of arrest of the judgment-debtor (revision petitioner herein) after nine years, is harsh and not in accordance with law and the order of arrest in the E.P. was set aside. There is no question of applicability of law of acquiescence or requirement of any notice as is claimed in the E.A. The respondents prayed for dismissal of the E.A. 4. The learned Judge of the Executing Court, after considering the evidence of P.Ws.1 and 2 and R.W.1 and Ex.P-1, dismissed the E.A., stating that the E.A. is not barred by the principle of acquiescence. Against the said order, the present C.R.P. has been filed by the petitioner-cultivating tenant. 5. During the course of the arguments in the C.R.P., learned counsel for the petitioner-cultivating tenant, would contend that the decree itself is non-est in the eye of law and admittedly, the revision petitioner himself is a cultivating tenant, and since the Civil Court has no jurisdiction to entertain the suit, any decree passed is non-est in the eye of law, and the decree itself is nullity and void-ab-initio. He relied on Section 8 of the Pondicherry Cultivating Tenants Protection Act, 1970 (Act No. 9 of 1971), which deals with bar of jurisdiction of Civil Courts. The said Act came into force on 10.4.1971 and after that only, the suit in O.S.No.50 of 1977 was filed and the suit was decreed on 21.6.1977. Learned counsel for the revision petitioner-cultivating tenant further contended that https://hcservices.ecourts.gov.in/hcservices/ as per Section 3 of the said Act, which deals with the landlords not to evict cultivating tenants, only two grounds are envisaged for evicting the tenant. Learned counsel for the petitioner-cultivating tenant further submitted that to decide the manner of enjoyment of the property, the Civil Court has no jurisdiction. The condition not to raise crops other than paddy, is an unconscionable condition and it is opposed to public policy. To substantiate the same, learned counsel for the petitioner relied on the decision of the Supreme Court reported in 1998 (5) SCC 87 (Secretary-cum-Chief Engineer Vs. Hari Om Sharma). He also relied upon the decision of the Supreme Court reported in 1993 (2) SCC 507 (Chiranjilal Shrilal Goenka Vs. Jasjit Singh) and submitted that even in execution proceedings, the decree can be challenged. Learned counsel further submitted that the petitioner was in possession of the property in pursuance of the unregistered lease deed and subsequently, after expiry of the period, his possession could only be termed as 'tenant in holding over' and so, the condition imposed in the lease deed will not bind the petitioner-cultivating tenant. He also relied upon other decisions of this Court in support of his contentions. 6. Learned Senior Counsel for the respondents/decree-holders would contend that since the suit itself is for bare injunction, the Civil Court has jurisdiction. Learned Senior Counsel further submitted that as per the lease deed, the petitioner-cultivating tenant agreed to raise only paddy and since he was violating the terms and conditions of lease, the suit has been filed and decree of injunction has been obtained and the judgment and decree in the suit have become final, as no appeal was preferred. Learned Senior Counsel for the respondents/decree-holders further relied upon one of the decisions of this Court relating to the parties who agreed to raise double-crop, but the petitioner-cultivating tenant raised only single crop, which will cause injury to the land, and hence, the respondents/decree-holders (plaintiffs-land owners) are entitled to file application for eviction. He relied upon various decisions in support of his contentions and prayed for dismissal of the E.A./C.R.P. 7. Now this Court has to decide as to whether the argument of the learned counsel for the petitioner-cultivating tenant that the Civil Court has no jurisdiction to entertain the suit, is fair and whether the decree itself is non-est in the eye of law. 8. The admitted facts are as follows: The property in question belongs to the respondents/decree- holders. The revision petitioner is the cultivating tenant. As per the lease deed, the revision petitioner/cultivating tenant is restricted from cultivating any other crop except paddy. Since the petitioner-cultivating tenant, attempted to raise crops other than paddy, the respondents came forward with the suit in O.S.No.50 of 1977. After contest, the suit was decreed. Even then, the petitioner- cultivating tenant raised crops other than paddy and the respondents https://hcservices.ecourts.gov.in/hcservices/ herein, as decree-holders, filed E.P.No.279 of 1980, in which, they sought for attachment of the crops for violating the decree of injunction granted in O.S.No.50 of 1977 and also sought for restoring the land to its original status by removing the crops other than paddy and the said E.P. was allowed. Against the same, the petitioner herein preferred appeal in C.M.A.No.5 of 1981, before the Principal District Court, Pondicherry and during the pendency of the said C.M.A, the respondents/decree-holders made an endorsement to the following effect: "The respondent submit that the part of the prayer in E.P.No.279/80 in O.S.No.50/77 for to take steps to restore the lands to the previous status by removal of sugarcane crops and direct recovery of expenses incurred for the respondent is not for the time being pressed without prejudice to the relief and conditions and other remedies available to the respondent/decree holders." The revision petitioner-cultivating tenant also made an endorsement as follows: "In view of the endorsement made by the respondents that they will not press the second relief in E.P.No.279/80 regarding restoration of the suit property by removing all crops other than paddy is given up and as such this appeal in respect of the I relief of arrest and detention in Civil Prison is not pressed." In view of the said endorsements, the C.M.A. was allowed in part setting aside the order to restore the land to its original status by removing the crops other than paddy and the C.M.A. was dismissed in respect of the relief of attachment of the property. But subsequently, the respondents herein filed another E.P. in E.P.No.17 of 1990, in which arrest has been ordered for committing contempt, and as against the same, the petitioner herein preferred C.R.P.No.2160 of 1990 before this Court and the said C.R.P. was allowed and the order of arrest passed in the E.P. was set aside. Subsequently, the present E.P. in E.P.No.237 of 1998 has been filed by the respondents herein. During the pendency of the present E.P., the petitioner herein filed E.A.No.157 of 1999 in E.P.No.237 of 1998, under Section 47 read with Section 151 of the C.P.C., questioning the validity of the decree, stating that the Civil Court has no jurisdiction to pass the decree and only the Revenue Court is having jurisdiction to entertain such a petition. 9. In the abovesaid circumstances, this Court has to consider whether the petitioner-cultivating tenant, is competent to challenge the decree in the E.P. proceedings. https://hcservices.ecourts.gov.in/hcservices/ 10. Before proceeding to consider the citations relied on by both parties, it is appropriate to consider the relevant provisions of the Pondicherry Cultivating Tenants Protection Act, 1970 (Act No.9 of 1971). Learned counsel for the petitioner-cultivating tenant would contend that the preamble of the said Act reads that, "An Act for the protection from the eviction of the cultivating tenants and matters incidental thereto in certain areas in the Union Territory of Pondicherry". So, learned counsel submits that to protect the interest of the cultivating tenants, the said Act has been enacted and it is a special provision. There is no quarrel over this argument of the learned counsel for the petitioner. In the preamble of the said Act, as noted above, it is stated that, "... protection from eviction ...", i.e. protection from eviction of the cultivating tenants. In such circumstances, the argument advanced by learned counsel for the petitioner-cultivating tenant that the suit for bare injunction restraining the petitioner herein/cultivating tenant/defendant from raising the crops other than paddy, before a Civil Court, is not maintainable, is an unacceptable one. 11. It is appropriate to consider Section 8 of the Pondicherry Cultivating Tenants Protection Act, which reads as follows: "Section 8: Bar of jurisdiction of Civil Courts: No Civil Court shall, except to the extent specified in sub- section (3) of section 3, have jurisdiction in respect of any matter which the Revenue Court is empowered by or under this Act to determine and no injunction shall be granted by any Court in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act." In such circumstances, Section 3(3) of the said Act is necessary for the discussion in this case, which reads as follows: "Section 3: Landlords not to evict the cultivating tenants: (1) ... (2) ... (3) (a) A cultivating tenant may deposit in Court the rent or, if the rent be payable in kind, its market value on the date of deposit, to the account of the landlord-- (i) in the case of rent accrued due subsequent to the 31st March, 1970 within such time as may be prescribed; (ii) in the case of rent accrued due after the commencement of this Act, within a month after the date on which the rent accrued due. (b) (i) The court shall cause notice of the deposit to be issued to the landlord and determine, after a summary inquiry, whether the amount deposited represent https://hcservices.ecourts.gov.in/hcservices/ the correct amount of rent due from the cultivating tenant and if the Court finds that any further sum is due, it shall allow the cultivating tenants such time as it may consider just and reasonable having regard to the relative circumstances of the landlord and the cultivating tenant, for depositing such further sum inclusive of such costs as the court may allow. (ii) If the Court adjudges that no further sum is due, or if the cultivating tenant deposits within the time allowed such further sum as is ordered by the Court, the cultivating tenant shall be deemed to have been paid the rent within the period specified in the last foregoing sub-section. (iii) If, having been ordered to deposit a further sum, the cultivating tenant fails to do so within the time so allowed by the Court, the landlord may evict the cultivating tenant as provided in sub-section(4). Explanation.--The expression "Court" in this sub-section means the Court which passed the decree or order for eviction or where there is no such decree or order, the Revenue Court." 12. As per Section 3(3) of the said Act, only the Revenue Court is having jurisdiction to order eviction of the tenant from the property, if there is no such decree or order for eviction by Court. There is no quarrel over the said proposition. But in this case, it is a suit for bare injunction. As per Section 8 of the said Act, there is bar for the Civil Court to entertain suits in respect of the prayer of injunction. 13. At this juncture, it is appropriate to consider the decisions relied on by the learned counsel for both sides. 14. Learned counsel for the petitioner-cultivating would rely upon the decision of the Supreme Court reported in 1993 (2) SCC 507 (Chiranjilal Shrilal Goenka Vs. Jasjit Singh), in which the Apex Court held as follows: "18. It is settled law that a decree passed by a court without jurisdiction on the subject-matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party. In Bahadur Singh v. Muni Subrat Dass (1969 (2) SCR 432) an eviction petition was filed under the Rent Control Act on the ground of nuisance. https://hcservices.ecourts.gov.in/hcservices/ The dispute was referred to arbitration. An award was made directing the tenant to run the workshop up to a specified time and thereafter to remove the machinery and to deliver vacant possession to the landlord. The award was signed by the arbitrators, the tenant and the landlord. It was filed in the court. A judgment and decree were passed in terms of the award. On expiry of the time and when the tenant did not remove the machinery nor delivered vacant possession, execution was levied under Delhi and Ajmer Rent Control Act. It was held that a decree passed in contravention of Delhi and Ajmer Rent Control Act was void and the landlord could not execute the decree. The same view was reiterated in Kaushalya Devi (Smt) v. K.L. Bansal (1969 (1) SCC 59 : AIR 1970 SC 838). In Ferozi Lal Jain v. Man Mal (1970 (3) SCC 181 : AIR 1970 SC 794) a compromise dehors grounds for eviction was arrived at between the parties under Section 13 of the Delhi and Ajmer Rent Control Act. A decree in terms thereof was passed. The possession was not delivered and execution was laid. It was held that the decree was nullity and, therefore, the tenant could not be evicted. In Sushil Kumar Mehta v. Gobind Ram Bohra (dead) through his Lrs. (1990 (1) SCC 193 : JT 1989 (Suppl) SC 329) the civil court decreed eviction but the building was governed by Haryana Urban (Control of Rent and Eviction) Act (11 of 1973). It was held that the decree was without jurisdiction and its nullity can be raised in execution. In Union of India v. Ajit Mehta and Associates, Pune (AIR 1990 Bom 45: 1989 (3) Bom.C.R. 535) a Division Bench to which Sawant, J. as he then was, a member was to consider whether the validity of the award could be questioned on jurisdictional issue under Section 30 of the Arbitration Act. The Division Bench held that Clause 70 of the contract provided that the Chief Engineer shall appoint an engineer officer to be sole arbitrator and unless both parties agree in writing such a reference shall not take place until after completion of the works or termination or determination of the contract. Pursuant to this contract under Section 8 of the Act, an arbitrator was appointed and award was made. Its validity was questioned under Section 30 thereof. The Division Bench considering the scope of Sections 8 and 20(4) of the Act and on review of the case-law held that Section 8 cannot be invoked for appointment of an arbitrator unilaterally but Section 20(4) of the Act can be availed of in such circumstances. Therefore, the very appointment of the arbitrator without consent of both parties was held void being without jurisdiction. The arbitrator so appointed inherently lacked jurisdiction and hence the award made by such arbitrator is non est. In Ghellabhai case (Ghellabhai Atmaram Vs. Nandubai (ILR 21 Bom 336), Sir C.Farran, Kt., C.J. of Bombay High Court held that the probate court alone https://hcservices.ecourts.gov.in/hcservices/ is to determine whether probate of an alleged will shall issue to the executor named in it and that the executor has no power to refer the question of execution of will to arbitration. It was also held that the executor having propounded a will and applied for probate, a caveat was filed denying the execution of the alleged will, and the matter was duly registered as a suit, the executor and the caveatrix subsequently cannot refer the dispute to arbitration, signing a submission paper, but such an award made pursuant thereto was held to be without jurisdiction." 15. Relying on the said decision, learned counsel for the petitioner-cultivating tenant submitted that the decree passed without jurisdiction, is nullity and is non-est in the eye of law and the question of validity of the decree can be raised even at the stage of execution proceedings. Relying on the said decision, he further submitted that when the statute does not confer jurisdiction on a Tribunal, no Court can confer jurisdiction on it even on the basis of the consent of the parties. 16. It is true that if the decree has been passed by a Court, which is not having jurisdiction, it is non-est in the eye of law and it can be challenged even in the execution proceedings. In such circumstances, this Court has to decide in this case as to whether the Civil Court is having jurisdiction to entertain the suit and grant decree and whether such decree is nullity in law. 17. Learned counsel for the petitioner-cultivating tenant, also relied upon the following decisions: (a) 1982 (2) MLJ 381 (Madras High Court): (Ponnuswamy Vs. District Revenue Officer. North Arcot): "9. In the civil suit also which has given rise to the second appeal, the finding is that the 4th respondent continued to be in possession of the property and that the plea of surrender by him to the appellants, namely the writ petitioners, is not true. However, the suit itself is not maintainable in view of the ratio in the Full Bench decision. (Periathambi Gounder v. The District Revenue Officer-(1980) 2 MLJ 89 : ILR (1980) 2 Mad. 255 : 93 LW 169 : AIR 1980 Mad 180). In the present suit, the plaintiff (Masilamani) has prayed for a declaration that he is a cultivating tenant and for injunction restraining the defendants/appellants (Ponnusami and Gnanamoorthy) who are petitioners in the writ petition, from disturbing his possession. Such a suit is not maintainable. Ismail,J., as he then was, has enumerated instances where a civil suit will not be maintainable vide Periathambi Gounder Vs. District Revenue Officer ((1980) 2 MLJ 89 : ILR (1980) 2 Mad. 255 : 93 LW 169 : AIR 1980 Mad 180): https://hcservices.ecourts.gov.in/hcservices/ "Similarly, if the cultivating tenant files a suit for declaration that he is the cultivating tenant of the land in question and as a consequential relief prays for recovery of possession from the land-owner-defendant or for an injunction, the primary relief being one of declaration of his status as a cultivating tenant, the other reliefs being consequential, the civil Court may not have jurisdiction to decide the controversy with reference to which the primary relief is prayed for." ....." (b) AIR 1984 Madras 235 (Pankajam and others VS. Chinnaswamy Naidu): "The plaintiff in the instant case prayed for a declaration of his right to enjoy the suit properties as a cultivating tenant and for a permanent injunction restraining the defendants and others from interfering with his peaceful possession and enjoyment of the properties. It was not disputed; that Sec.16-A would prohibit the Civil Court from granting the declaration prayed for. Held that the consequential relief of injunction depends upon the adjudication with reference to the status of the respondent and when that cannot be done by the Civil Court, the consequential relief also cannot be granted." 18. Learned Senior Counsel for the respondents/decree-holders relied on the following decisions: (a) AIR 1981 Madras 354 (V.S.Alwar Vs. Gurusamy Thevar): "It is no doubt fundamental that the executing Court cannot go behind the decree. But it is also fundamental that it is open to a judgment debtor to resist execution on the ground that the judgment against him is a nullity. The executing Court can very well decline to execute a decree if it is satisfied that it is a nullity. When it does so, it is not to be regarded as going behind the decree, for the simple reason that there is no decree at all to go behind." "The ouster of Civil Court's jurisdiction under Section 16-A is not dependent upon the actual pre-existence of an order of the Record Officer or even the actual pendency of certain proceedings before the Record Officer. On the contrary, the section declares a bar in general terms in matters of the kind and nature described in the Section. The bar, therefore, operates irrespective of whether a Record Officer has entered upon his task or not. The section, in general terms, bars the Civil Courts from exercising jurisdiction in the kind of matters which the Record Officer or other statutory authorities are empowered to decide under the Act. In these events, the fact that the https://hcservices.ecourts.gov.in/hcservices/ judgment debtor happened to obtain a declaration from the Record Officer only subsequent to the decree of the Civil Court is not, therefore, to the point. Indeed, he may not have applied to the Record Officer at all for a declaration. Yet, even in such a case, it is open to him to invoke the statutory bar in order