- Facts in Brief
- Kerala Buildings (Lease and Rent Control) Act.
- Submissions: Petitioner’s:
- Ramesh Gobindam(dead) through L.R.’s v Sugra Humayun Mirza Wakf, (2010) 8 SCC 726
- Faseela M. v Munnerul Islam Madrasa Committee and another, ILR 2014 (2) Ker. 893 (SC)
- First Respondent’s & Ld., Standing Counsel’s:
- i. Whether the suit schedule property belongs to the Wakf so as to disentitle the tenants to the benefit of Kerala Building (Lease and Rent Control) Act?
- ii. Whether the learned Tribunal inherently lacked jurisdiction to try the suit for eviction at the time when the suit was instituted?
- iii. Whether the amendment to Sections 83 and 85 of the Wakf Act cured the defect of lack of jurisdiction and conferred it retroactively relating back to the date of institution of the suit?
- Issue No.1:
- Issue Nos.2 and 3
- Section 83. Constitution of Tribunals, etc.-
- Section 85. Bar of jurisdiction of civil courts
- Judicial Interpretation
- Board of Wakf, West Bengal v. Anis Fatma Begum, 2010(14) SCC 588
- Bhanwar Lal v Rajasthan Board of Muslim Wakf, AIR 2014 SC 758
- Faseela M v Munnerul Islam Madrasa Committee, AIR 2014 SC 2064
- L.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643
- P. V. George v. State of Kerala, 2007 (3) SCC 557
- Retrospective Conferment of Jurisdiction
- Sarwan Kumar v Madan Lal Agarwal, (2003) 4 SCC 147
- Gian Devi Anand v Jeevan Kumar, 1985 supp. (1) SCR 1
- Hem Nolini (died) v. Isolyne Sarojbashini, AIR 1962 SC 1471
- Bhavanji Hansaraj v Lourdes Church, Perumanoor, AIR 1999 Ker. 425
- Hameed v. Ittoop, 1970 KLT 501
- Kuruvilla Abraham v. John, 1995(1) KLT 161 (F.B.)
- Gourikutty Amma v. Kesavan, I.L.R. 1989 Ker. 105
- Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193
- East India Corpn. Ltd. v. Shree Meenakshi Mills Ltd., (1991) 3 SCC 230
- Rattan Arya and Ors. v. State of Tamil Nadu, AIR 1986 1444
- Jindal Vijayanagar Steel v Jindal Praxair Oxygen Company Ltd., 2006 (11) SCC 521
- Fazlehussein v. Yusufully, AIR 1955 BOM 55
Civil Law – Jurisdiction – Statutory Changes – a Court must have regard to circumstances existing when the issue of jurisdiction is tried and must decide it in the light of circumstances existing as at that date – the appeal proceedings being in continuation of the original proceedings, the statutory changes lis pendence do affect the outcome of the proceedings—even as regards jurisdiction.
Wakf Act – Ss. 83 & 85 – Buildings (Lease and Rent Control) Act (Kerala) – Wakf Property – Tenancy – Eviction – Petitioner has all along taken a consistent stand that the property does not belong to the Wakf and, therefore, the tenants should be allowed to have the benefit of rent control legislation – Whether Civil Court alone, instead of Wakf Tribunal, would have the jurisdiction to try a suit for eviction? Held, Suit schedule property was dedicated through the registered Wakf Deed – an extract of Register of Wakfs, issued by the Kerala Wakf Board, Ernakulam, in which the property stood reflected – Tribunal, on the basis of these documents has concluded that the suit schedule property belongs to the Wakf – discrepancy in the description of the property, the Tribunal felt, is minor not capable of casting any cloud on the identity of the property – Muthavalli of the Wakf inducted the tenants and that the tenants have also admitted that they have paid the rent to the Wakf – Tribunal has recorded that the defendants have also admitted the plaintiff as their landlord – to dilute the Tribunal’s findings concerning the nature of the property and also the status of the first respondent as the landlord, the petitioner has produced no countervailing material – therefore, find no justification to upset the well-considered findings of fact arrived at by the Tribunal on the nature of the property and the first respondent’s entitlement to seek eviction.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Antony Dominic & Dama Seshadri Naidu, JJ.
CRP No.226 of 2007
Dated this the 17th day of June, 2016
AGAINST THE DECREE & JUDGMENT IN OS 13/2004 of WAKF TRIBUNAL, KOZHIKODE DATED 06-12-2006
REVISION PETITIONER/1ST DEFENDANT
BY ADV. SRI.THOMAS ANTONY
RESPONDENTS/PLAINTIFF & 2ND DEFENDANT
SEETHIMARAKKARAKATH ALIKOYA WAKF, (A WAKF REGISTERED UNDER THE WAKF ACT) AND ANOTHER
R1 BY ADV. SRI.A.BALAGOPALAN R1 BY ADV. SRI.A.RAJAGOPALAN R1 BY ADV. SRI.M.S.IMTHIYAZ AHAMMED BY ADV.SRI.K.SHIBILI NAHA
Dama Seshadri Naidu, J.
# Facts in Brief
This revision petition arises out of eviction proceedings in O.S.No.13 of 2004 on the file of the Wakf Tribunal, Kozhikode. Having suffered a decree of eviction, the tenants are before us.
2. The facts in brief are that the then Muthavally of the plaintiff Wakf inducted the defendants’ predecessor as a tenant into the suit schedule property, a house, about fifty years ago. Though the monthly rent began at ₹200/-, from August 1999 onwards, it was said to have been raised to ₹700/-. In the course of time, on 12.09.2001, the successor Muthavalli issued a notice to the defendants, who succeeded as tenants after the death of their predecessor, demanding arrears of rent and also vacant possession of the property.
3. Besides traversing the notice contents in her reply, the first defendant sent a demand draft for ₹7920/- declaring that amount to be the arrears of rent. Later, on 23.7.2003, the landlord issued another notice terminating the tenancy, apart from demanding arrears of rent. When the defendants did not comply with the plaintiff’s demand, it initiated eviction proceedings.
4. The defendants set up a defence primarily contending that the property does not belong to the Wakf, and that it is amenable to
# Kerala Buildings (Lease and Rent Control) Act.
In other words, the defendants have sought to take shelter under the beneficial provisions of the rent control enactment. According to the defendants, the building was taken on lease about 50 years ago, and there was no periodical raise in the rent, which remained at ₹200/- per month. Even in 1997, the tenants agreed to raise the rent only by ₹200/-, rather than ₹700/-. Eventually, they have contended that the suit for eviction is not maintainable, that the property does not belong to the wakf, and that there was no cause of action for the landlord to seek their eviction.
5. During the trial, the learned Tribunal, among other things, has framed a specific issue whether the plaint schedule property is outside the purview of Kerala Buildings (Lease and Rent Control) Act.
6. The plaintiff examined on its behalf the Muthavalli as PW1 and marked Exts.A1 to A10 documents. On the other hand, the first defendant got herself examined as DW1, apart from marking Exts.B1 to B7 documents.
7. Holding that the property belongs to Wakf and that the defendants are liable to vacate, the learned Tribunal decreed the suit through its judgment dated 6 th December 2006. Aggrieved, the first defendant alone filed the present revision, in which the plaintiff is the first respondent. They shall be hereafter referred to thus.
# Submissions: Petitioner’s:
8. Sri Thomas Antony, the learned counsel for the revision petitioner, has strenuously contended that the first respondent, has miserably failed to establish before the Tribunal that the property belongs to the Wakf. According to him, the Tribunal’s reliance on Ext.A10, the Wakf deed, is grossly erroneous and misplaced. In elaboration, he has submitted that the property in Ext.A10 does not cover, in the first place, the plaint schedule property. He has, in the alternative, submitted that even the description of the property in Ext.A10 entirely differs from and does not match with that of the suit schedule property.
9. As a sequel to his submission that the property does not belong to the Wakf, the learned counsel has further contended that the defendants are entitled to the benefit of the rent control legislation. It is also his specific contention that the first respondent has failed to establish before the Tribunal that there had been any proper revision of rent. By the same reckoning, it has also failed to establish that the defendants are liable to pay the arrears of rent at the enhanced rate. According to him, the first respondent has placed no material before the Tribunal to drive home its contention as regards the revision of rent, much less the arrears of rent.
10. Summing up his submissions, the learned counsel has submitted that even if one were to assume that the suit schedule property was a Wakf property, civil court alone, instead of the Tribunal, would have the jurisdiction to try a suit for eviction. To support his submission, the learned counsel has placed reliance on
# Ramesh Gobindam(dead) through L.R.’s v Sugra Humayun Mirza Wakf, (2010) 8 SCC 726
# Faseela M. v Munnerul Islam Madrasa Committee and another, ILR 2014 (2) Ker. 893 (SC)
# First Respondent’s & Ld., Standing Counsel’s:
11. Per contra, the learned counsel for the first respondent and the learned standing counsel for the Wakf Board have contended in unison that the learned Tribunal has conclusively held, based on sufficient material, that the property belongs to the Wakf. They have also pointed out that in the impugned judgment, there are numerous references to the fact that the person who inducted the defendants as tenants and the person who continued to collect the rent have acted only on behalf of the Wakf, but not in their individual capacity. According to them, since the defendants have accepted the Muthavalli’s intermeddling with the property, they are estopped from denying the right of the Wakf as the landlord to seek eviction.
12. The learned counsel for the respondents, in the end, have submitted that the judgments relied on by the learned counsel for the petitioner were rendered by the Apex Court before the amendment to Sections 83 and 85 of the Wakf Act. In elaboration, they have submitted that whatever ambiguity earlier present in the provisions stood removed in the wake of the amendment. The provisions, now, are explicit that the Tribunal has to try all the disputes concerning a wakf property, including those of tenancy and eviction.
13. The learned counsel for the revision petitioner, in reply, has submitted that the suit was instituted way back in 2004; it was decreed on 6 th December 2006; and the revision was filed in 2007—all these events had happened before the amendment. The amendment, according to him, indisputably is only prospective.
14. In elaboration, the learned counsel has submitted that once the adjudicatory forum lacked jurisdiction when the proceedings were initiated, the subsequent conferment, especially prospectively, will not relate back to the date of institution so as to cure the defect—the inherent lack of jurisdiction.
15. Heard Mr.Thomas Antony, the learned counsel for the petitioner, Mr.A.Balagoplan, the learned counsel for the second respondent, and Mr.K.Shibili Naha, the learned Standing Counsel for the Wakf Board.
# i. Whether the suit schedule property belongs to the Wakf so as to disentitle the tenants to the benefit of Kerala Building (Lease and Rent Control) Act?
# ii. Whether the learned Tribunal inherently lacked jurisdiction to try the suit for eviction at the time when the suit was instituted?
# iii. Whether the amendment to Sections 83 and 85 of the Wakf Act cured the defect of lack of jurisdiction and conferred it retroactively relating back to the date of institution of the suit?
# Issue No.1:
16. The petitioner has all along taken a consistent stand that the property does not belong to the Wakf and, therefore, the tenants should be allowed to have the benefit of rent control legislation. On this count, the Tribunal has returned a verdict that the suit schedule property was dedicated through Ext.A10, which is the registered Wakf Deed; that apart, it has also referred to Ext.A1, an extract of Register of Wakfs, issued by the Kerala Wakf Board, Ernakulam, in which the property stood reflected. The Tribunal, on the basis of Exts.A1 and A10, has concluded that the suit schedule property belongs to the respondent Wakf. The discrepancy in the description of the property, the Tribunal felt, is minor not capable of casting any cloud on the identity of the property.
17. In further elaboration, the Tribunal has recorded that the then Muthavalli of the Wakf inducted the tenants and that the tenants have also admitted that they have paid the rent to the plaintiff—the Wakf. In paragraph-7 of the judgment, the Tribunal has recorded that the defendants have also admitted the plaintiff as their landlord.
18. To dilute the Tribunal’s findings concerning the nature of the property and also the status of the first respondent as the landlord, the petitioner, to our minds, has produced no countervailing material. We, therefore, find no justification to upset the well-considered findings of fact arrived at by the Tribunal on the nature of the property and the first respondent’s entitlement to seek eviction.
# Issue Nos.2 and 3
19. The dispute relates to tenancy; the relief sought is eviction; the question for consideration is the inherent jurisdiction of the Tribunal; and the governing enactment is the Waqf Act, 1995.
20. Section 6 of the Act mandates that on the question whether a particular property is waqf property and on all other related issues, the Board or the muthawalli of the waqf or any person aggrieved may institute a suit in a Tribunal for having the question resolved. And the decision of the Tribunal regarding such matter shall be final. The proviso to Section 6 limits the Tribunal’s jurisdiction by specifying that no suit shall be instituted before the Tribunal regarding such properties notified in a second or subsequent survey pursuant to the provisions contained in Subsection (6) of Section 4. As per sub-section (5) of Section 6, on and from the commencement of the Act in a State, no suit or other legal proceedings shall be instituted or commenced in a court of that State about any question referred to in Sub-section (1).
21. Further, Section 7 of the Act, curiously, deals with the same issue as is dealt with by Section 6, barring some minor terminological changes. In The Law of Wakfs3 , a commentary of much perspicacity, S. A. Kader, the learned author, opines that Section 6 and Section 7 are overlapping. In fact, the Explanation incorporated in Section 6 has been made applicable to Section 7 also. These two sections, the author opines, could have been easily and happily clubbed together, and redundancy avoided, had there been a deft drafting.
3P.149, 2 nd Ed. Eastern Law House
22. Indeed, we may safely gather from the statutory scheme of Sections 6 and 7 of the Act that the Tribunal is not the exclusive forum for dispute resolution. But, to put the issue in perspective, we need to examine Sections 83 and 85 of the Act.
23. In fact, Section 83 and 85 were amended by the Wakf (Amendment) Act, 2013. Since this lis arose in or about 2004, we may first examine the unamended provisions. Here are those provisions to the extent they are relevant:
# Section 83. Constitution of Tribunals, etc.-
(1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property, under this Act and define the local limits and jurisdiction of such Tribunals.
24. Through the Amending Act 27 of 2013, the legislature has added after ‘waqf or waqf property’ the following words: eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property. As a result, the amended sub-section (1) of Section 83 reads as follows:
Section 83. Constitution of Tribunals, etc.- (1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals.
25. Further, Section 85, the exclusionary provision, read prior to the amendment as follows:
# Section 85. Bar of jurisdiction of civil courts
No suit or other legal proceeding shall lie in any civil court, in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal.
26. Section 85 of the Act, as seen, has only had a couple more expressions added to it ex abundanti cautela. For the words “civil court”, the words “civil court, revenue court and any other authority” were substituted.
# Judicial Interpretation
27. In Ramesh Gobindram (supra), the Hon’ble Supreme Court has examined the bounds of the Tribunal’s jurisdiction. Considering Sections 6, 7, 83, and 85 of the Act, the Court has held that a suit for eviction of the tenants from a wakf property could be filed only in the Civil Court, but not before the Wakf Tribunal. Thereafter, Ramesh Gobindram has been consistently followed in
# Board of Wakf, West Bengal v. Anis Fatma Begum, 2010(14) SCC 588
# Bhanwar Lal v Rajasthan Board of Muslim Wakf, AIR 2014 SC 758
# Faseela M v Munnerul Islam Madrasa Committee, AIR 2014 SC 2064
and other cases.
28. Evidently, Ramesh Gobindram and other cases have prompted the legislature to come up with the Wakf (Amendment) Act, 2013, about which we have already spoken. Before proceeding further, we may observe that all the above decisions were rendered in the backdrop of the unamended provisions. Incidentally, though Faseela (supra) quotes the amended provisions in the body of the judgment, the discussion, for sure, was based only on the unamended provisions. The reason for Faseela’s confinement to the unamended provisions is not far to seek: The issue of tenancy arose before the amendment, and the judicial proceedings, too, were initiated pre-amendment.
29. In the present instance, as has already been adverted to, the first respondent initiated the eviction proceedings in 2004, the suit was decreed on 06.12.2006, and the revision before this Court was filed in 2007—all before the amendment in 2013. Now, the question that engages our attention is, can the conferment of jurisdiction on the Tribunal pending the revision relates back to the date of filing of the suit so as to save the proceedings retroactively, so to speak? The discussion has to be predicated on two accepted propositions: The amendment is prospective; it has no validating provision.
30. Obvious as it may sound, the Tribunal was not denuded of its inherent jurisdiction only from the date of the decision in Gobindram (supra), that is 2010. In terms of Article 141 of the Constitution, it is deemed that the Tribunal never had the inherent jurisdiction until 20th September, 2013, when Section 83 underwent an amendment. The declaration of law through the devise of judicial interpretation by a Constitutional Court relates back to the inception of that particular piece of legislation, as if it had been the true legislative intent all along. The concept of prospectivity and retrospectivity does not precedentially apply. It is, in fact, subject to an exception of the Court’s declaring the law prospectively—by recourse to the doctrine of prospective overruling.
31. It pays to note that
# L.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643
has declared that the power of prospective overruling is vested only in the Apex Court. But in
# P. V. George v. State of Kerala, 2007 (3) SCC 557
the Apex Court has held that the High Courts in exercise of their jurisdiction under Article 226 of the Constitution of India, even without applying the doctrine of prospective overruling, indisputably may grant a limited relief in exercise of their equity jurisdiction.
# Retrospective Conferment of Jurisdiction
# Sarwan Kumar v Madan Lal Agarwal, (2003) 4 SCC 147
the question was whether a decree passed by a Civil Court in relation to a commercial tenancy in the State of Delhi before the declaration of law by the Supreme Court in
# Gian Devi Anand v Jeevan Kumar, 1985 supp. (1) SCR 1
can be successfully challenged before the Executing Court as null and void on the ground that the decree was passed by a Court lacking jurisdiction. For the record, we may say that Gian Devi Andand has declared that such tenancy is heritable, and the Rent Control Act will apply to such tenancy.
33. Answering the question in the affirmative, the Apex Court held as follows (at para 20):
“The interpretation given by this Court declaring the commercial tenancies heritable would be the law as it stood from the beginning as per the interpretation put by this Court. It would be deemed that the law was never otherwise. Jurisdiction of the civil court has not been taken away by the interpretation given by this Court. This Court declared that the civil court had no jurisdiction to pass such a decree. It was not a question of taking away of jurisdiction; it was the declaration of law by this Court to that effect”.
34. Now we may attempt to answer the impact of an amendment lis pendens, for instance, conferring jurisdiction on a forum which lacked it, but proceeded throughout as if it had.
35. In Soji Chacko (supra), the original landlord died leaving behind his legal hires, including a daughter, who sued the tenant for eviction on the premise that she was the legatee under a will executed by her father, a Christian. The tenant, a nationalized Bank, took a plea that the legatee could not maintain recovery proceedings claiming to be the absolute owner of the property without probating the will.
36. While the matter was pending before this Court in the second appeal, with effect from 14.03.1997, the Legislature through the Kerala Amendment Act, 1996, inserted the words ‘or Indian Christians’ in sub-section (2) of Section 213 of the Indian Succession Act. It was with a view that the statutory limitation would not affect the Wills made by the Indian Christians, apart from the Mohammedans.
37. This Court, per P. K. Balasubramanyan, J (as his Lordship then was) has held that the protection will be available to those litigants who invoke the jurisdiction of the Court to establish a right under a Will after the date of the insertion. But absent anything to indicate that it should operate retrospectively, it cannot be held that the amendment has retrospective operation.
38. Having acknowledged that an amendment which brings about only an alteration in procedure can act retrospectively, the learned Single Judge has proceeded further to examine whether the provision is merely procedural. The conclusion, rightly, is that the right to get relief is not a mere matter of procedure; the right to sue and the right of appeal are vested rights; even the right to a forum could be a vested right. Eventually, Soji Chacko (supra) has held as follows:
10. In our processual jurisprudence, an appeal is a rehearing of the suit. A litigant can therefore show with reference to an amendment to the statute that on the day his appeal is heard, he is entitled to relief or that no bar then exists to the grant of reliefs to him. The suit here is pending in Second Appeal, though at the instance of the first Defendant. At the hearing of the appeal the Plaintiff-Respondent is entitled to exhort the court to take note of the amendment, be it prospective, and to grant him relief on the basis that the legislature has removed the bar to the grant of reliefs to him by the amendment. This Court therefore is bound to take note of the amendment that was introduced pending the litigation and to decide whether the bar to the grant of relief to the Plaintiff now subsists or has been removed.”
39. In fact, Soji Chacko (supra) has proceeded further referring to a judgment of the Supreme Court in
# Hem Nolini (died) v. Isolyne Sarojbashini, AIR 1962 SC 1471
to hold that if the bar under the Act were to the institution of the suit itself, it might not have enabled the Plaintiff to seek relief on the basis of the amendment.
40. This Court again had the occasion to consider the same issue in
# Bhavanji Hansaraj v Lourdes Church, Perumanoor, AIR 1999 Ker. 425
The issue was whether a decree of a civil court could be sustained owing to subsequent statutory changes, even if the court did not have jurisdiction when the suit was filed and when the decree was passed. After surveying the relevant authorities, this Court, per a learned Single Judge, has held that the question of maintainability of the suit, in this case, must be decided referring to the law as on the date of institution of the suit and that it cannot be founded on any subsequent amendments. To arrive at the said conclusion, this Court has relied on Rubinstein’s Jurisdiction and Illegality: The question of jurisdiction is determinable at the commencement and not at the conclusion of the inquiry.
41. A learned Division Bench of this Court in
# Hameed v. Ittoop, 1970 KLT 501
which was relied on in Bhavanji Hansaraj, has also held that question of want of jurisdiction is to be determined on the date of institution of the suit.
42. A slightly different but related question on jurisdiction arose for consideration of the Full Bench in
# Kuruvilla Abraham v. John, 1995(1) KLT 161 (F.B.)
The landlord filed a suit seeking eviction of the tenant from the schedule building with mesne profits. As the Buildings (Lease and Rent Control) Act, 1965, was not applicable to the area where the property was situated, the civil court decreed the suit. The tenant filed before the District Court an appeal, pending which the Act was made applicable to the area. But this was not brought to the notice of the District Judge, who dismissed the appeal on merit. The tenant filed the second appeal. He contended that with the extension of the Act to that area, the decree has become a nullity, and the first appellate court lacked jurisdiction to confirm the decree.
43. The learned Full Bench has held that merely because the trial court had the jurisdiction when the suit was instituted or decreed, the lower Appellate Court cannot shut its eyes to the changed situation: The jurisdiction of the Civil Court has been taken off by including the area as part of a Municipality to which the rent control act applies. As the decree has been challenged in the appeal—the continuation of the original proceedings—and as the Appellate Court’s judgment was pronounced only at a stage when the decree has become invalid, the tenants’ contention, held the learned Full Bench, that the decree is a nullity is tenable.
44. The learned Full Bench, in the process of its arriving at the above conclusion, has overruled a contra-decision of a learned Division Bench in
# Gourikutty Amma v. Kesavan, I.L.R. 1989 Ker. 105
It has, in fact, relied on
# Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193
in which the Apex Court has held that where a Civil Court without jurisdiction passes a decree, it is a nullity; the tenant can raise his objection to the decree even at the stage of execution of the decree. Kuruvilla Abraham goes past the proposition that the jurisdiction of an adjudicatory forum is to be determined as on the date of the initiation of the proceedings. If the ratio of Kuruvilla Abraham is to be accepted—which we must, the subsequent conferment of jurisdiction, conversely, will make the tenants’ objection on jurisdiction unsustainable, for the subsequent developments should be considered: that jurisdiction was conferred pending appeal.
# East India Corpn. Ltd. v. Shree Meenakshi Mills Ltd., (1991) 3 SCC 230
at the of the institution of the suit, the building in question did not come within the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. There was an express bar Section 30 (ii) of the Act based on the quantum of rent, which did not apply to the demised building. Accordingly, the landlord validly instituted a suit for eviction in a civil court, which decreed it. After unsuccessful first and second appeals, the tenant took the matter to the Supreme Court in SLP.
46. While the SLP was pending, the Supreme Court in
# Rattan Arya and Ors. v. State of Tamil Nadu, AIR 1986 1444
struck down Clause (ii) of Section 30. Because of this declaration of the constitutional invalidity of Section 30 (ii), the tenant took a plea that the provision must 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 and let out for whatever rent came within the ambit of the Act. In other words, the suit ought to have been filed before a Rent Controller, rather than a civil court.
47. The Apex Court, accepting the tenant’s contention, has ruled thus: 11. 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 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, or, merely inoperative, unenforceable and dormant to be revitalised on subsequent removal of the constitutional ban—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 non judice and its proceedings resulting in the decree a nullity. (internal citations omitted)
48. It is, however, apposite to observe that in East India Corpn the impact of judicial invalidation, as well-established, is held to operate from the very inception, unlike a prospective amendment, which is the case Kuruvilla Abraham. At any rate, Kuruvilla Abraham has considered both Sushil Kumar Mehta and East India Corpn. As such, Kuruvilla Abraham binds us.
49. Surveyed further, the precedential position reveals that in
# Jindal Vijayanagar Steel v Jindal Praxair Oxygen Company Ltd., 2006 (11) SCC 521
the facts in brief are that the appellant in conjunction with some other company entered into an agreement and incorporated the respondent-company at Bellary, Karnataka. Several disputes arose between parties. The respondent filed a petition under Section 9 of Arbitration Act in Bombay High Court. When said petition was being tried in Court on the issue of jurisdiction, the respondent transferred its office to Mumbai. Consequently, the High Court of Bombay held that jurisdiction of court under provision of Arbitration Act may be assumed by a court if respondent company has a corporate office at place where the court is moved. The matter was taken to the Supreme Court.
50. The Apex Court has quoted with approval the ratio laid down by the High Court of Bombay in
# Fazlehussein v. Yusufully, AIR 1955 BOM 55
which is to the following effect:
Even if the Court had jurisdiction to entertain the suit as filed, if by reason of subsequent events the Court has lost jurisdiction to entertain or try the suit, the Court will not be justified in dealing with the suit with reference to circumstances as they existed at the date of the institution of the suit but must proceed to decide the dispute on the footing that if the suit had been filed at the later date, the Court would have been incompetent to grant the reliefs in respect of the properties and of the persons who are not within the limits of the jurisdiction of the Court. Normally, a Court must have regard to circumstances existing as at the date when the issue of jurisdiction is tried and must decide it in the light of circumstances existing as at that date.
(emphasis original; underlining ours)
51. First, the issue in Jindal Vijayanagar Steel concerns the territorial jurisdiction, rather than inherent jurisdiction. Further, the above-quoted ratio of the Bombay High Court, approved by the Apex Court, in the first blush, appears self-contradictory. In the initial part, the extracted judgment of the Bombay High Court explicitly holds that if by subsequent events the Court has lost jurisdiction to entertain or try the suit, the Court will not be justified in dealing with the suit with reference to circumstances as they existed at the date of the institution of the suit but must decide the dispute on the footing as if the suit had been filed at the later date. In the latter part, it holds that a Court must have regard to circumstances existing when the issue of jurisdiction is tried and must decide it in the light of circumstances existing as at that date. On a deeper scrutiny, we observe that the latter portion of the ratio is hedged with a sentential adverb of manner ‘normally’.
52. In the above facts and circumstances, guided—nay, bound—by Kuruvilla Abraham, a judgment rendered by the learned Full Bench of this Court, and Jindal Vijayanagar Steel, a judgment rendered by the Hon’ble Supreme Court, we are of the view that, the appeal proceedings being in continuation of the original proceedings, the statutory changes lis pendence do affect the outcome of the proceedings—even as regards jurisdiction.
53. Viewed from a practical perspective, the futility of a contrary course of action comes to light. If we were to hold that the Tribunal lacked the jurisdiction and ought not to have tried the case, the result would be that the whole litigious exercise goes back to square one.
The landlord has to initiate eviction proceedings afresh. Before which forum? The same forum! The landlord has to initiate the eviction proceedings before the same forum, the decree of which was asked to be set aside, for it has, in the meanwhile, got the jurisdiction conferred on it. An exercise in hyper-technicality; an exercise, we may say, in futility. To paraphrase Glanville Willams, sometimes the law’s bark is worse than its bite, for the bite mostly never comes—only if we liken the bark to the procedure and the bite to the substantial justice.
As a result, the Civil Revision Petition is dismissed. No order on costs.