Case: Jai Singh Jairam Tyagi Etc Vs. Mamanchand Ratilal Agarwal and Others

effect under the provisions of sub.-s. 2. We see no justification for confining the applicability of sub.-s. 4 to cases where notifications are issued with retrospective effect under sub.-s. 2. Sub.-s. 4 in terms is not as confined. It applies to all cases of decrees or orders made before the extension of a State Legislation to a Cantonment area irrespective of the question whether such extension is retrospective or not. The essential condition to be fulfilled is that the decree or order must have been made as if the State Legislation was already in force, although, strictly speaking, it was not so in force. In our view sub.-s. 4 is wide enough to save all decrees and orders made by the wrong application of a State rent control and house accommodation legislation to a Cantonment area, though such State Legislation could not in law have been applied to Cantonment areas at the time of the passing of the decrees or order. We, therefore, hold that the decree obtained by the respondents is saved by the provisions of s. 3, 4 sub .- s. 4 of the Cantonment (Extension of Rent Control Laws) Act of 1957. as amended by Act 22 of 1972.6. The second submission of the learned counsel for the appellant was that the decision of the executing Court in Miscellaneous Application No. 597 of 1970 declaring the decree to be a nullity separated as res judicata between the parties. The learned counsel relied upon the following observations of this Court in Mathura Prasad Bajoo Jaiswal &ors. v. Dessibai N.B. Jeejeebhoy(1) :"The matter in issue, if it is one purely of act, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression the matter in issue in s. 11 Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of ( res judicata, for a rule of procedure cannot supersede the law of the land.In the very observations relied upon by the learned counsel for the appellant the last sentence is clearly against the appellant. The matter becomes clear if certain observations made earlier in the very judgment are considered. They are:"A question relating to the Jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, lin our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise".7. In that case the appellant who had a lease of an open land for construction of buildings had applied for determination of standard rent under the Bombay Rents, Hotel and Lodging House Rates Control Act , 1947. The application was rejected on the ground that the Act did not apply to open land let for construction. The view was confirmed by the High Court. Later in another case, the view taken by the High Court was over-ruled by the Supreme Court and it was held that the Act applied to open land let out for construction The appellant once again filed an application for determination of standard rent. The lower Courts and the High Court held that the previous decision operated as res judicata between the parties. The Supreme Court reversed the view of the lower courts and the High Court. It was held that the earlier decision that the Civil Judge had no jurisdiction to entertain the application for determination of standard rent ? was wrong in view of the judgment of the Supreme Court. If the decision in the previous proceeding was to be regarded as res judicata it would assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature. The situation in the present case is analogous. The executing Court had refused to exercise jurisdiction and to execute the decree on the ground that the decree was a nullity as the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, had no application to buildings in Cantonment areas. That defect having been removed and all decrees obtained on the basis that the Bombay rent law applied to the Kirkee Cantonment area having been validated by Act 22 of 1972, it cannot be said that the earlier decision holding that the decree was a nullity operated as res judicata. As pointed out by this Court in Mathura Prasad Bajoo Jaiswal &Ors. I v. Dassibai N.B. Jeejeebhoy (supra) if the earlier decision in the Miscellaneous Application is to be regarded as res judicata it would assume the status of a special rule of jurisdiction applicable to the parties in derogation of the law declared by the legislature. We, therefore, see no substance in the second submission.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The effect of the pro visions of the Amending Act appear to us lo be very clear. Under s. 3 of the unamended Act, a notification could be issued extending a State Legislation to a Cantonment area with effect from the date of the notification. As a result of the introduction of sub.-s. 2 of s. 3 the notification can be given effect from an anterior date or a future date, but it cannot be made effective from a date earlier than the commencement of the State Legislation or the establishment of the Cantonment or the commencement of the Cantonment (Extension of Rent Control Laws) Act, 1957. Sub.-s. 3 is merely consequential to sub.-s. 2 in that it provides that a State Legislation when extended to a Cantonment area from an anterior date, such legislation is to stand extended with all the amendments to such State Legislation made after such anterior date but before the commencement of the 1972 Amending Act, the amendments being applicable as and when they come in to force. Sub-.s. 4 makes provision for the saving of decrees or orders for the regulation of or for eviction from any house accommodation in a Cantonment made before the extension of the State Legislation to the Cantonment provided certain conditions are fulfilled. One condition is that the decree or order must have been made by any Court, Tribunal or other authority in accordance with a law for the control of rent and regulation of house accommodation for the time being in force in the State in which such Cantonment is situated. In other words the decree or order must have been made by the wrong application of the State legislation to the Cantonment area. If a decree or order has been made by such wrong application of the State Legislation to the Cantonment area, it shall be deemed, with effect from the date of the notification, to have been properly made under the relevant provisions of the State Legislation.We see no justification for confining the applicability of sub.-s. 4 to cases where notifications are issued with retrospective effect under sub.-s. 2. Sub.-s. 4 in terms is not as confined. It applies to all cases of decrees or orders made before the extension of a State Legislation to a Cantonment area irrespective of the question whether such extension is retrospective or not. The essential condition to be fulfilled is that the decree or order must have been made as if the State Legislation was already in force, although, strictly speaking, it was not so in force. In our view sub.-s. 4 is wide enough to save all decrees and orders made by the wrong application of a State rent control and house accommodation legislation to a Cantonment area, though such State Legislation could not in law have been applied to Cantonment areas at the time of the passing of the decrees or order. We, therefore, hold that the decree obtained by the respondents is saved by the provisions of s. 3, 4 sub .- s. 4 of the Cantonment (Extension of Rent Control Laws) Act of 1957. as amended by Act 22 ofmatter in issue, if it is one purely of act, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression the matter in issue in s. 11Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of ( res judicata, for a rule of procedure cannot supersede the law of the land.In the very observations relied upon by the learned counsel for the appellant the last sentence is clearly against thethat case the appellant who had a lease of an open land for construction of buildings had applied for determination of standard rent under the Bombay Rents, Hotel and Lodging House Rates Control Act , 1947. The application was rejected on the ground that the Act did not apply to open land let for construction. The view was confirmed by the High Court. Later in another case, the view taken by the High Court was over-ruled by the Supreme Court and it was held that the Act applied to open land let out for construction The appellant once again filed an application for determination of standard rent. The lower Courts and the High Court held that the previous decision operated as res judicata between the parties. The Supreme Court reversed the view of the lower courts and the High Court. It was held that the earlier decision that the Civil Judge had no jurisdiction to entertain the application for determination of standard rent ? was wrong in view of the judgment of the Supreme Court. If the decision in the previous proceeding was to be regarded as res judicata it would assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature. The situation in the present case is analogous. The executing Court had refused to exercise jurisdiction and to execute the decree on the ground that the decree was a nullity asthe Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, had no application to buildings in Cantonment areas. That defect having been removed and all decrees obtained on the basis that the Bombay rent law applied to the Kirkee Cantonment area having been validated by Act 22 of 1972, it cannot be said that the earlier decision holding that the decree was a nullity operated as res judicata. As pointed out by this Court in Mathura Prasad Bajoo Jaiswal &Ors. I v. Dassibai N.B. Jeejeebhoy (supra) if the earlier decision in the Miscellaneous Application is to be regarded as res judicata it would assume the status of a special rule of jurisdiction applicable to the parties in derogation of the law declared by the legislature. We, therefore, see no substance in the second submission.