Case: P. Dasa Muni Reddy Vs. P. Appa Rao

advantage of the benefit. On that reasoning, this Court set aside the judgment of the High Court and restored the decree of the trial Court dismissing the suit in Lachoo Mals case (supra). Lachoo Mals case (supra) has no application to the present case which raises the question as to whether the appellant has waived the jurisdiction of the Court to entertain the suit for eviction of the respondent.11. In the present case the issue in the suit under appeal as framed in the trial Court was whether the appellant became estopped from pleading that the Rent Control Act could not apply to the building. The concurrent finding of the trial Court and the First Appellate Court is that the building was constructed in the year 1958. The Act would not apply to the month of August, 1957. The Civil Court and not the Rent Controller would have jurisdiction in respect of such buildings. The First Appellate Court held that the appellant sought eviction before the Rent Controller on the ground that there was default in payment of rent. The date of construction of the building was not in question before the Rent Controller. The First Appellate Court came to the conclusion that the appellants suit was barred neither by res judicata nor by any principle of estoppel.12. It is indisputable that the Rent Controller could have no jurisdiction in respect of the building in question becaue of the date of construction of the building. The decree in the suit before the Rent Controller cannot be pleaded as res judicata because the Rent Controller would have no jurisdiction to try and decide not only a particular matter in the suit but also the subsequent suit in which the issue is raised. (See Gokul Mandar v. Pudmanund, (1902) 29 Ind App 196 (PC) ). Section 44 of the Evidence Act also supports the appellant to shows that the judgment in the suit before the Rent Controller is delivered by a Court not competent to deliver it. Want of jurisdiction must be distinguished from irregular or erroneous exercise of jurisdiction. If there is want of jurisdiction the whole proceeding is coram non judice. The absence of a condition necessarily to found the jurisdiction to make an order or give a decision deprives the order or decision of any conclusive effect. (See Halsburys Laws of England, 3rd Ed. Vol.15 para 384).13. Abandonment of right is much more than waiver, acquiescence or laches. The decision of the High Court in the present case is that the appellant has waived the right to evict the responent. Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. The doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of breach of some condition in the contract of tenancy. The doctrine which the courts of law will recognise is a rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of Courts. Waiver sometimes partakes of the nature of an election. Waiver is consensual in nature.It implies a meeting of the minds. It is a nature of mutual intention. The doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. There can be no waiver of a non-existent right. Similarly, one cannot waive that which is not ones as a right at the time of waiver. Some mistake or misapprehension as to some facts which constitute the underlying assumption without which parties would not have made the contract may be sufficient to justify the court in saying that there was no consent.14. Just as the courts normally do not permit contracting out of the Acts so there can be no contracting in.A status of control of premises under the Rent Control Acts cannot be acquired either by estoppel or by res judicata. The principle is that neither estoppel nor res judicata can give the court jurisdiction under the Acts which those Acts say it is not to have. The Rent Control Acts operate in rem. These Acts give a status to the house from which certain legal consequences follow:15. In the present case, the building in question is beyond doubt outside the protection of Rent Control Acts. The foundation of the doctrine of estoppel is that the representation must be of existing facts and not of mere intention (See Dawsons Bank Ltd. v. Nippon M. K. Kaisha 62 Ind App 100 = (AIR 1935 PC 79 ). There must be a statement of fact and not a mere promise to do some thing in future.16. The appellant proved that the appellant made a mistake of fact in regard to the building being outside the mischief of the Act.The appellant instituted the suit before the Rent Controller in mistake about the underlying and fundamental fact that the building was outside the ambit of the Act. The Civil Court has jurisdiction in the subsequent suit which is the subject of this appeal. The appellant is not disentitled to any relief on the grounds of res judicata or estoppel or waiver. As one cannot confer jurisdiction by consent similarly one cannot by agreement waive exclusive jurisdiction of courts. The Civil Court and not the Rent Control Court possesses jurisdiction over the building in question.

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

Explanation:
1[ds]The concurrent finding of the trial Court and the First Appellate Court is that the building was constructed in the year 1958. The Act would not apply to the month of August, 1957. The Civil Court and not the Rent Controller would have jurisdiction in respect of such buildings. The First Appellate Court held that the appellant sought eviction before the Rent Controller on the ground that there was default in payment of rent. The date of construction of the building was not in question before the Rent Controller. The First Appellate Court came to the conclusion that the appellants suit was barred neither by res judicata nor by any principle of estoppel.12. It is indisputable that the Rent Controller could have no jurisdiction in respect of the building in question becaue of the date of construction of the building. The decree in the suit before the Rent Controller cannot be pleaded as res judicata because the Rent Controller would have no jurisdiction to try and decide not only a particular matter in the suit but also the subsequent suit in which the issue is44 of the EvidenceIn the present case, the building in question is beyond doubt outside the protection of Rent Control Acts. The foundation of the doctrine of estoppel is that the representation must be of existing facts and not of mereThe appellant proved that the appellant made a mistake of fact in regard to the building being outside the mischief of the Act.The appellant instituted the suit before the Rent Controller in mistake about the underlying and fundamental fact that the building was outside the ambit of the Act. The Civil Court has jurisdiction in the subsequent suit which is the subject of this appeal. The appellant is not disentitled to any relief on the grounds of res judicata or estoppel or waiver. As one cannot confer jurisdiction by consent similarly one cannot by agreement waive exclusive jurisdiction of courts. The Civil Court and not the Rent Control Court possesses jurisdiction over the building in question.