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Surajnarain v. Jamil
Factual and Procedural Background
The respondent (decree-holder) owned a house which the appellant (judgment-debtor/tenant) occupied. The respondent sued for recovery of rent for February to August 1942 and obtained a decree on 4 November 1943 for a rental slightly lower than claimed. During that suit the plaintiff served a notice to quit dated 1 June 1942. When the defendant did not vacate, the plaintiff brought a second suit claiming ejectment and arrears/damages for the period after August 1942; that suit was decreed ex parte on 27 April 1944. Execution of the ejectment decree began before the Subordinate Judge of Patna, whereupon the judgment-debtor objected under section 47 of the Code of Civil Procedure, contending that the Civil Court lacked power to execute the decree because of the Bihar House Rent Control Order, 1942 ("the Control Order") read with Rule 81(2)(b) of the Defence of India Rules.
The Subordinate Judge dismissed the execution-stage objection, holding that any alleged illegality in the ejectment decree should have been challenged by appeal from the decree and could not be raised in execution. The District Judge affirmed that decision. The judgment-debtor appealed to this Court.
Legal Issues Presented
- Whether a court executing a Civil Court decree for ejectment can declare that decree null and void on the ground that implementation would be inconsistent with the provisions of the Bihar House Rent Control Order, 1942 (the "Control Order") and related Defence of India Rules.
- Whether the Control Order (including section 13 and section 14(3)) or section 14 of the Defence of India Act ousts the ordinary Civil Courts of jurisdiction to execute an ejectment decree, and if so, whether that exclusion applies where there is no prior order of the Controller.
- Whether an objection raising the bar of the Control Order can properly be raised in execution proceedings under section 47 CPC, or whether the appropriate remedy was by appeal from the decree itself.
Arguments of the Parties
Appellant / Judgment-Debtor
- Contended (in execution under section 47 CPC) that the decree for ejectment is not executable because the Civil Court has no power to give effect to it in view of the Control Order read with Rule 81(2)(b) of the Defence of India Rules.
- Relied (through the Government Pleader in support) on a broad reading of the Control Order provisions (including a reliance upon section 14(3) of the Control Order) and on section 14 of the Defence of India Act to argue that jurisdiction is vested exclusively in the Controller and excluded from ordinary Civil Courts.
Respondent / Decree-Holder and Courts below
- The Subordinate Judge and the District Judge took the view that the Control Order does not strip the Civil Court of power to execute an ejectment decree; if the decree was illegal, the remedy was by appeal from the decree, not by execution objection.
- The respondent (owner) successfully relied on the position that the Civil Court had found the tenant wilfully neglected payment of rent and had jurisdiction to pass the ejectment decree.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Secretary of State v. Mask & Co. | Illustrates that exclusion of Civil Court jurisdiction must be explicit and that when a statute creates a special remedy the party must adopt the statutory remedy (case under Sea Customs Act of 1878). | Used to support the proposition that exclusion of Civil Court jurisdiction is not to be readily inferred; distinguished because in the present case there was no order of the Controller and the Control Order did not create a new liability requiring exclusive statutory remedy. |
| Wolverhampton New Waterworks Co. v. Hawkesford | Principle (as stated by Willes, J.) about classification of cases where statute creates a liability and a special remedy, requiring use of statutory remedy. | Cited to explain the third class of cases where exclusive statutory remedy is required; court held the present case did not fall in that class because no new statutory obligation was created by the Control Order. |
| Neville v. London 'Express' Newspaper, Ltd. | Approval of the Willes, J. principle and application in prior authorities. | Referenced as part of the established principle that only where a statute creates a new obligation with a special remedy will Civil Court jurisdiction be excluded. |
| Moment's case | Referred to in connection with section 32 of the Government of India Act, 1915, concerning the limits of exclusion by statute and special tribunals. | Cited to show that neither section 32 nor the principle from Moment's case affects the validity of a statute creating an exclusive code; distinguished here because the Control Order does not create such an exclusive code. |
| Sardar Mohammad Nawaz Khan | Principle that on matters expressly provided to be determined by special/revenue courts, Civil Courts can in the last resort determine the limits of such specialized jurisdiction. | Quoted to support the view that Civil Courts retain the ultimate power to determine the limits of special jurisdictions; applied to reject the contention that Civil Courts were altogether ousted. |
| Gora Chand Haldar | Authority referenced concerning the limited scope of execution courts to declare decrees invalid when jurisdictional objections were not raised earlier. | Used to support the proposition that execution courts are limited in declaring decrees invalid where jurisdiction was not questioned in the original proceeding. |
| Girwar Narain Mahton | Distinction between inherent want of jurisdiction and questions of jurisdiction that require determination by the court itself. | Applied to show that there was no facial lack of jurisdiction (pecuniary, territorial or personal) and therefore execution court could not set aside the decree on that basis. |
| Somokanta Mohonta | Illustrated that where statute (Co-operative Societies Act, s.42(b)) expressly bars Civil Courts, decrees in that subject-matter are void and can be set aside. | Distinguished: in that case jurisdiction was expressly barred by statute and there had been an empowered order by liquidator; here no such express bar nor any Controller's order existed. |
| Mary Board's case | States the presumption that where a right exists it is enforceable in a Civil Court, and the onus lies on defendant to show Civil Court jurisdiction is ousted. | Applied to place the burden on the appellant/judgment-debtor to demonstrate that the Controller alone had exclusive jurisdiction; the appellant failed to do so. |
Court's Reasoning and Analysis
The Court proceeded by analyzing whether the Control Order and related Defence of India provisions effectively ousted Civil Court jurisdiction so as to render an ejectment decree non-executable in execution proceedings.
Key steps in the reasoning:
- The Court observed that there was no prior order of the Controller in this case; section 14(3) of the Control Order (which makes an order of the Controller final) therefore had no application where no Controller's order existed.
- The Court examined section 14 of the Defence of India Act and concluded it did not, by itself, demonstrate an intention to exclude Civil Court jurisdiction in the circumstances of this case. The Court emphasized the settled rule that exclusion of ordinary jurisdiction is not lightly to be inferred and must be explicit or clearly implied.
- Relying on established authorities (including the Sea Customs Act decision cited as Secretary of State v. Mask & Co., and the Willes, J. principle discussed in Wolverhampton/New Waterworks and Neville), the Court explained that only where a statute creates a new liability together with an exclusive statutory remedy will the remedy be confined to that statutory mechanism. The Control Order did not create any new liability requiring exclusive statutory adjudication.
- The Court pointed out that section 13 of the Control Order provides that no order for recovery of possession shall be made so long as the tenant pays the full allowable rent and performs tenancy conditions. The Court found that the conditions of section 13 had been complied with in that the Civil Court had, after finding non-payment of rent, passed the ejectment decree; moreover, a possible remedy for the tenant under section 4 of the Control Order was noted, which reduced any conflict between Civil Courts and the Controller.
- The Court further considered the procedural posture: no objection to the Civil Court's jurisdiction was raised in the original suit. The Court relied on authority (Gora Chand Haldar and Girwar Narain Mahton) to state that an executing court has narrow powers to declare a decree invalid for jurisdictional reasons when such objections were not earlier raised; the distinction between inherent lack of jurisdiction (facial) and issues requiring trial was emphasized.
- The Court distinguished Somokanta Mohonta (where Civil Court jurisdiction was expressly barred by statute in relation to dissolution of a cooperative society) because that case concerned an express statutory bar and an empowered order by a statutory officer; no analogous statutory bar or Controller's order existed here.
- Finally, the Court invoked the presumption that rights are enforceable in Civil Courts and placed the burden on the defendant to show that Civil Court jurisdiction was ousted. The appellant failed to discharge that burden.
Concurring opinion (Das, J.):
- Das, J. agreed with the reasoning and added that section 13 of the Control Order is ambiguous in wording as to whether "order for the recovery of possession" means only Controller's orders or any order (including Civil Court orders). Even if construed broadly, the bar under section 13 should have been pleaded in the substantive suit and not raised for the first time in execution: execution cannot go behind the decree to re-decide matters that should have been tried.
- Das, J. also agreed that section 14 of the Control Order and section 14 of the Defence of India Act do not oust Civil Court jurisdiction in the present circumstances.
Holding and Implications
Holding: The appeal is dismissed. The courts below were correct in holding that the executing Civil Court could not declare the ejectment decree null and void on the basis of the Control Order and related Defence of India provisions in the absence of an order of the Controller and in the absence of an express statutory exclusion of Civil Court jurisdiction. The judgment-debtor's execution-stage objection under section 47 CPC was not maintainable.
Implications:
- Direct effect on the parties: The ejectment decree remains executable and the appellant's challenge in execution fails; the appellant was unsuccessful in showing that the Controller alone had exclusive jurisdiction. The appeal is dismissed with costs.
- Broader legal consequence as explained by the Court: Where a statute or order does not create a new obligation together with an exclusive statutory remedy, and where there is no prior order by the statutory authority (the Controller), Civil Courts are not to be presumed ousted of jurisdiction. Execution courts cannot go behind a decree to re-open matters that should have been contested in the original suit or by appeal. Section 13's bar (if relied upon) ought to have been pleaded in the substantive proceedings rather than raised for the first time in execution.
- The Court distinguished authorities where Civil Court jurisdiction was expressly barred by statute and noted that those cases do not govern where no such express bar or statutory code exists.
Outcome: Appeal dismissed with costs.
Manohar Lall, J.:— The important question for decision in this appeal by the judgment-debtor is whether a court executing a decree passed by a Civil Court for ejectment of a tenant from a house can declare the decree as null and void in view of the provisions of the Bihar House Bent Control Order, 1942, hereinafter to be called the Control Order.
The facts are not in dispute. The respondent-decree-holder is the owner of the house which was let out to the appellant as a tenant. The respondent instituted a suit for recovery of rent for the period February, 1942, to August, 1942, and obtained a decree on the 4th of November, 1943, at a rental slightly lower than that which was claimed by the plaintiff. During the pendency of the suit the plaintiff served upon the defendant a notice to quit the house—the notice is dated the 1st of June, 1942. The defendant not having vacated the house, another suit was instituted by the plaintiff in which he claimed a decree for ejectment and also arrears of rent and damages for the period after August, 1942. That suit was decreed ex parte on the 27th of April, 1944. The decree-holder proceeded to execute that decree before the first Subordinate Judge of Patna when an objection was filed by the judgment-debtor under section 47 of the Code of Civil Procedure to the effect that the decree for ejectment from the house is not executable as the Civil Court has no power to give effect to that decree in view of the provisions of the Control Order read with rule 81, sub-rule (2), clause (b) of the Defence of India Rules.
The learned Subordinate Judge took the view that the Control Order does not take away the power of the Civil Court to execute a decree for ejectment passed by it in a suit filed by the owner of the house for ejectment of the tenant on the ground that he has wilfully neglected to pay the stipulated rent. It was also contended before the learned Subordinate Judge that it is only the Controller as defined in section 2, clause (b) of the Control Order who can pass order for recovery of possession of a house by the owner from the tenant, and reliance was placed upon section 13 of the Control Order which enacts that
“no order for the recovery of possession of any house shall be made so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by this Order and performs the conditions of the tenancy”.
The learned Subordinate Judge decided that this objection was not maintainable in the execution department because if there was any illegality in the order for ejectment that was embodied in the decree passed in the original suit, the remedy of the applicant was to go in appeal against the decree for ejectment and get the decree set aside. Accordingly he dismissed the objections.
Against this decision there was an appeal to the District Judge who took the same view. Hence the second appeal to this Court.
The learned Government Pleader in support of his contention did not rely on section 13 of the Control Order, but relied upon section 14, sub-clause (3). Now, that sub-clause provides that the decision of the Commissioner and subject only to such decision, an order of the Controller shall be final, and shall not be questioned in any Court. In this case admittedly there is no order of the Controller. I fail to see how the provision of section 14(3) can have any application in the present case or can be of any assistance to the judgment-debtor.
The learned Government Pleader sought to develop this argument by relying upon section 14 of the Defence of India Act which runs as follows:—
“Jurisdiction of ordinary Courts.—(1) Except as may be provided in this Act or in any rule made thereunder or in any order made under any such rule by the Central Government or the Provincial Government or be an officer not below the rank of Collector empowered under sub-section (4) or sub-section (5) of section 2 to make such order, the ordinary Criminal and Civil Courts shall continue to exercise jurisdiction.
(2) For the removal of doubts it is hereby declared that any provision in any such rule or order as aforesaid to the effect that the decision of any authority, not being a Court, shall be final or conclusive shall be sufficient excepting provision within the meaning of sub-section (1).”
It is, therefore, argued that the effect of the provision of section 14 is that the exclusive power is now vested with the Controller appointed under the Control Order and that the jurisdiction can no longer be exercised by the Civil Court.
In my opinion, this argument is not sound. I do not find any provision in any of the sections of the Control Order which takes away the jurisdiction of the Civil Courts. The only jurisdiction taken away is that the order of the Controller when made shall be final and shall not be questioned in any court.
Now, it is well-settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied, and it is also well-settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure: per Lord Thankerton in Secretary of State v. Mask & Co.. That was a case under the Sea Customs Act of 1878. The plaintiffs were assessed by the Assistant Collector of Customs, Madras, at 37½ per cent on tariff valuation as to some of the bags, and as to the remaining bags they were informed that they will be liable to pay duty at 45 per cent on different tariff valuation. The plaintiffs appealed against that decision and the appeal was dismissed by the Collector of Customs. The Government of India when moved in revision confirmed the Collector's decision. The suit giving rise to the appeal was then instituted to recover the excess amount collected from the plaintiffs by levying duty as already stated. The learned Subordinate Judge came to the conclusion that by reason of the relevant provisions of the Sea Customs Act he had no jurisdiction to entertain the suit. The High Court reversed that decision, but their Lordships of the Judicial Committee came to the conclusion that the levying of the duty was exclusively within the jurisdiction of the Collector of Customs, and the jurisdiction of the Civil Court was barred. It will be noticed that in that case a duty had been levied and the plaintiffs wanted a refund of the duty. In the present case I have already stated that there is no order passed by the Controller which stands in the way of the jurisdiction of the Civil Court. It is true that their Lordships held in that case that the jurisdiction of the Civil Court was excluded by the order of the Collector of Customs on the appeal under section 188, and it may perhaps be argued that as the order of the Controller in the present case is final it should be held that the jurisdiction of the Civil Court is excluded. But it is to be observed, as was pointed out by their Lordships at page 237, that the main principles to be observed in such cases are to be found in the well known judgment of Willes, J., in Wolverhampton New Waterworks Co. v. Hawkesford approved by the House of Lords in Neville v. London ‘Express’ Newspaper, Ltd., and that the Question is whether the case falls under the third class stated by Willes, J., that is to say, “Where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it”; and it has been always held that with respect to this class the party must adopt the form of remedy given by the statute. It may be observed that no liability which was not existing before is being created by the Control Order so that it can be held that the party must adopt the form of remedy given by the Control Order. It seems to me that in this case merely an alternative remedy is provided which any party can avail himself of, and if the party thus avail himself of that alternative remedy, then and then alone the order of the Controller is final subject to investigation by Civil Courts as stated above. After examining a number of other cases which were cited on behalf of the plaintiffs and the provisions of section 32 of the Government of India Act, 1915, their Lordships observed that “neither section 32 nor the principle involved in the decision in Moment's case affect the validity of an Act of the Indian Legislature which creates an obligation and provides an exclusive code for its determination; such an obligation is not covered by sub-section (2) of section 32”. As I have just stated, the Control Order does not create an independent or a new obligation so that it can be held that it provides an exclusive code for the determination of that obligation.
Reference may also be made to the case of Sardar Mohammad Nawaz Khan where Sir George Rankin in delivering the judgment of the Board pointed out the method of determining the exclusion of the jurisdiction of the Civil Court in matters which have been expressly provided to be determined by the Revenue Courts only, and regarding matters why may incidentally arise in an ordinary suit for a declaration of title to immoveable property. His Lordship observed at page 309 that “On principle it is for the Civil Court to determine in the last resort the limits of the powers of a court of special jurisdiction”.
It may be observed further that the conditions of section 13 of the Control Order have been complied with in that the decree for ejectment has been passed by the Civil Court after it was found that the tenant had not paid the rent due from him. We pointed out a possible remedy to the tenant under section 4 of the Control Order. This appears to obviate any conflict between the Civil Court and the Controller.
For these reasons I am of opinion that the contention raised by the learned Government Pleader has been, rightly negatived by the courts below.
The matter may be looked at in another way also. No objection as to the jurisdiction of the Civil Court was raised by the defendant in the suit. When the jurisdiction of the Civil Court has not been questioned by anybody the executing court is only allowed within narrow limits to declare the decree as being invalid [See Gora Chand Haldar]. It is not shown here that the Civil Court on the face of it had no jurisdiction whether, pecuniary or territorial or in respect of the person of the judgment-debtor to make a decree. There is a well recognised distinction between inherent want of jurisdiction in a court and want of jurisdiction on grounds which require determination by the court itself—see Girwar Narain Mahton.
The learned Government Pleader relied upon the case of Somokanta Mohonta. In that case in the course of liquidation of a co-operative society the liquidator directed payment of Rs. 1,000 by each of two members of the Executive Committee of the Society, and these two gentlemen sought to recoup themselves by suing the other members of the society for the recovery of these sums. In these circumstances it was held that the decree passed by the Munsif and the orders made by him in execution of that decree should be set aside as being null and void. Section 42(b) of the Co-operative Societies Act of 1912 specifically provides that
“Save in so far as hereinbefore expressly provided no Civil Court shall have any jurisdiction in respect of any matter connected with the dissolution of a registered society under this Act”.
It was obvious that the jurisdiction of the Civil Court was expressly barred by statute and, therefore, the attempt on the part of the two members of the Executive Committee to pass on their liability to the other members of the Society was a matter connected with the dissolution of the Society, and, it was not a matter in respect of which the Civil Court had any jurisdiction. This case does not help the appellant as it is merely an illustration of the principle which I have endeavoured to trace out above that where the jurisdiction of the Civil Court is expressly barred in respect of a new obligation, and a new code is provided for its determination, the matter can only be decided by the newly created tribunal. In the present case before us no new obligation has been created and there has been no decision or order by the Controller, unlike this Calcutta case where there was an order by the liquidator who was empowered to make that order under the Co-operative Societies Act.
Finally, it may be observed that where a right exists, the presumption is that it can be enforced by a Civil Court and the onus is on the defendant to show that the jurisdiction of the Civil Court as ousted or that some other court has exclusive jurisdiction to entertain that determination [Mary Board's case]. In the present case, in my opinion, the appellant has not shown that the Controller alone has the exclusive jurisdiction to determine the matter so that the decree passed by the Civil Court was without jurisdiction.
I would dismiss this appeal with costs.
Das, J.:— I agree, and would like to add a few observations about section 13 of the Control Order. It is not very clear from the wording of the section if the
“order for the recovery of possession of any house”
referred to therein means an order by the Controller under any of the provisions of the Control Order, or means any order for the recovery of possession of any house—passed either by the Civil Court or the Controller. If the section is interpreted in the wider sense—and I must say that it is capable of bearing that wider meaning—even then the bar of section 13 should have been pleaded in the suit, and not in execution. Section 13 does not oust the jurisdiction of the Civil Court: it merely states that unless certain conditions are fulfilled, no order for recovery of possession can be made. Whether those conditions have been fulfilled or not, have to be decided at the trial, and cannot be enquired into in execution; for that would be going behind the decree, which the executing Court cannot do.
As to section 14 of the Control Order and section 14 of the Defence of India Act, I agree with my learned brother.
Appeal dismissed.
K.D
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