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PETITIONER: P.   DASA MUNI REDDY

       Vs.

RESPONDENT: P. APPA RAO

DATE OF JUDGMENT10/09/1974

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) KRISHNAIYER, V.R.

CITATION:  1974 AIR 2089            1975 SCR  (2)  32  CITATOR INFO :  D          1979 SC1393  (12)

ACT: Andhra Pradesh Buildings (Lease, Rent and Eviction  Control) Act  (A.P.  Act  15 of  1960)-Not  applicable  to  buildings constructed  after August 1957-Application for  eviction  to rent  controlled with respect to building constructed  after 1958--Dismissal  and subsequent suit in Civil  Court-Whether landlord precluded by waiver resjudicata or estoppel.

HEADNOTE: The  Andhra  Pradesh  Buildings  cease,  Rent  and  Eviction Control)   Act,  1960,  does  not  apply  to  any   building constructed after August 1957. The  appellant  was  the  owner  of  a  building  which  was constructed in 1958 and the respondent was the tenant.   The appellant. by mistake, filed an application before the  Rent Controller  for eviction of the respondent on the ground  of default  in payment of rent.  The petition was dismissed  by Rent Controller and by the appellate authority.  Thereafter, the  appellant  instituted a suit in tile  Civil  Court  for eviction  of the respondent.  The trial court and the  first appellate.  court decreed the suit, but the High  Court  set aside  the decree in favour of the appellant on  the  ground that the appellant was precluded by the principle of  waiver claiming any relief Allowing the appeal to this Court, HELD  : The appellant was not disentitled to relief  on  the grounds of waiver, res judicata or estoppel. [36F] (1)Waiver  is an intentional relinquishment at of a  known right  or  advantage,  benefit, claim  or  privilege  which, except for such waiver. the party would have enjoyed and  is based on the rule of judicial policy that a person will  not be allowed to take inconsistent positions to gain  advantage through courts.  Voluntary choice is the essence of  waiver, that  is, there should be an Opportunity for choice  between relinquishment and an enforcement of the right in  question. It is consensus in nature and implies a meeting of the minds and is a matter of mutual intention.  It cannot be held that there  has  been  a  waiver of  valuable  rights  where  the circumstances show that what was done was involuntary,  and, there can be no waiver of a non-existent right.  One  cannot waive  that  which is not one’s as a right at  the  time  of

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waiver.   Some mistake or misapprehension as to some of  the facts  which constitute the underlying  assumption,  without which  the parties would not have made the contract  may  be sufficient to justify the court in saying that there was  no consent.   As  one cannot confer  jurisdiction  by  consent, similarly,  one  cannot by agreement waive  jurisdiction  of Courts. [35F-36C] Lachoo Mat v. Radhey Shyam. [1971] 3 S.C.R. 693, explained. (2)The  Rent Controller bad no jurisdiction in respect  of the  budding  because of the date of its  construction.  and only  the  civil court had jurisdiction.  The  in  the  suit before the Rent Controller cannot be pleaded as res judicata because  the Rent Controller had no jurisdiction to try  and decide  not only the particular matter in the suit but  also the subsequent suit in which the issue was raised.  The date of  construction was not before the Rent Controller.   Under s.  44 the Evidence Act also the appellant could  show  that the  judgment  in the suit before the  Rent  Controller  was delivered by a Court not competent to deliver it. [35C.E] Gokul Mandar v. Pudmanund, 29 I.A. 196, referred to. (3)The  foundation  of the doctrine of  estoppel  is  that there  is  representation of existing facts.   A  status  of control of Premises under the Rent Control Acts 33 ,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.   They. give a status to the house from  which  certain legal consequences follow. [36C-E] Dawson’s  Batik  Ltd. v. Nippon M. K. Kaisha, 62  I.A.  100, referred to.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1228  of 1973. Appeal  by Special Leave from the Judgment and  Order  dated the 5th September, 1972 of the Andhra Pradesh High Court  in Second Appeal No. 256 of 1972. P.Ramachandra Reddy, P. P. Rao, T.V.S.N. Chari and A.  K. Ganguli, for the appellant. K. Jayaram, for the respondent. The Judgment of the Court was delivered by RAY,  C.J.  This  is an appeal by  special  leave  from  the judgment dated 5 September, 1972 of the Andhra Pradesh  High Court dismissing the appellant’s suit against the respondent for  possession  of  the  building  in  occupation  or   the respondent. The appellant is the owner of the building in question.  The building was constructed sometime in 1958.  The appellant on 1 November, 1958 let out the building to the respondent on a lease,  for  three years.  The lease was on  monthly  basis. The lease expired on 31 October, 1961. The   appellant  filed  an  application  before   the   Rent Controller, Chandragiri for eviction of the respondent  from the  building.  The application was under section 10(2)  (i) read with section 3 (1 )(a) of the Andhra Pradesh  Buildings (Lease,  Rent  and Eviction Control) Act,  1960  hereinafter referred  to  as the Act.  On 30 September, 1963,  the  Rent Controller dismissed the application for eviction. On  7  October,  1963 the appellant gave  a  notice  to  the respondent  determining the lease and asked for  possession. The  appellant  stated in the notice that the  building  was

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constructed after 26 August, 1957 and therefore, the Act did not apply to the building in question.  On 21 October,  1963 the  respondent  replied and denied that  the  building  was constructed after 26 August, 1957. The appellant preferred an appeal to the Appellate Authority under the Act against the order of the Rent Controller dated 30  September, 1963.  On 17 December, 1965, the  appeal  was dismissed by the Appellate Authority. On 20 November, 1967 the appellant instituted a suit in  the Court of the District Munsiff Tirupathi for eviction of  the respondent.  The cause of action was that the respondent did not  surrender possession of the building on the  expiry  of the  lease.   Further allegations were that  the  respondent committed  default  in  payment  of  rent.   The   appellant referred  to  the  proceedings before  the  Rent  Controller resulting in 251 S7-lp.  Cl/75 34 dismissal  of  the appellant’s application before  the  Rent Controller  for eviction of the respondent.   The  appellant also alleged that the provisions of the Act did not apply to the building in question because it was constructed after 26 August, 1957. On  26  March 1969 the appellant’s suit  was  decreed.   The respondent preferred an appeal.  The Subordinate Judge on 24 February 1972 dismissed the appeal and confirmed the decree. The  High Court on 5 September 1972 reversed the  decree  of the Subordinate Judge and set aside the decree. The High Court held that the appellant was precluded by  the principle  of waiver from claiming any relief in  the  suit. The  High  Court  relied on the decision of  this  Court  in Lachoo  Mall v. Radhey Shyam.(1) The appellant there  was  a tenant.   The  landlord  wanted to demolish  the  house  and construct  a  new  building.  The landlord  and  the  tenant entered  into  an  agreement.  The agreement  was  that  the tenant  would  vacate the shop on condition that  after  the completion  of  the construction of the  house,  the  tenant would  resume  the possession of the  shop.   The  agreement further provided that the landlord would not be entitled  to derive  benefits  from the Rent Control  and  Eviction  Act. Section  1-A  of  the U.P. Rent  Control  and  Eviction  Act provided that the buildings constructed after 1 January 1951 were  exempted from the operation of the Act.   The  section said that nothing in the Act shall apply to any building  or part  of  a  building  which  was  under  erection  or   was constructed  on or after 1 January 1951. The tenant  resumed possession of the shop after its construction. The tenant offered  rent to the landlord.  The landlord did not  accept the  same.   The  tenant  thereafter  deposited  the   rent. The  landlord gave a notice to determine the  tenancy.   The Trial  Court dismissed the suit holding that the tenant  was entitled  to  the protection conferred by section 3  of  the Act.   The District Judge took a contrary view  and  decreed the  suit  of the landlord.  The High Court  held  that  the landlord  was  entitled to rely on section 1-A  of  the  Act which  took  away from the operation of  the  Act  buildings constructed on or after 1 January, 1951. This  Court  in  Lachoo  Mal’s  case(supra)  said  that  the question was whether it was open to the landlord to give  up the benefit of the provisions or waive the same by means  of an  agreement of the nature which was entered  into  between the appellant and the landlord.  This Court held that  every one  has  a  right  to waive and  to,  agree  to  waive  the advantage of a law or rule.  This Court held that in case  a particular  owner  did  not wish to  avail  the  benefit  of

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section 1-A of the Act, there was no bar created by the  Act in  the  way of his waiving or giving up or  abandoning  the 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 Mal’s  case (supra). Lachoo Mal’s case (supra) has no application to the present  case  which raises the question as to  whether  the appellant has waived the (1)  [1971] 3 S. C. R. 693 A. I. R. 1971 S. C. 2213. 35 jurisdiction of the Court to entertain the suit for eviction of the respondent. 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 any building constructed subsequent 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 appellant’s  suit was barred neither by res judicata nor  by any principle of estoppel. It  is indisputable that the Rent Controller could  have  no jurisdiction in respect of the building in question  because 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(1).  Section 44 of the  Evidence Act also supports, the appellant to show  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 necessary to found the  jurisdiction to  make an order or give a decision deprives the  order  or decision  of any conclusive effect. (See Halsbury’s Laws  of England, 3rd Ed.  Vol. 15 para 384). Abandonment of right is much more than mere waiver, acquies- cence  or  laches.  The decision of the High  Court  in  the present  case is that the appellant has waived the right  to evict   the   respondent.    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  positions  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 matter of mutual intention.  The doctrine does not depend on misrepresentation.   Waiver actually requires  two  parties, one  party  waiving  and another receiving  the  benefit  of

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waiver.  There can be waiver so intended by one party and so understood by the (1)  29 I. A. 196. 36 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 one’s 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.  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. 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 Dawson’s Bank Ltd. v. Nippon M. K. Kaisha(1). There must be a statement of fact and not a mere promise  to do something in future. 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   possesses  jurisdiction  over  the   building   in question. For  these  reasons the judgment of the High  Court  is  set aside.  The decree in favour of the appellant passed by  the trial  Court and confirmed by the First Appellate  Court  is restored.  The respondent wanted time to quit and vacate the building in question.  The respondent is given time till  30 June,  1975 to vacate and deliver vacant possession  to  the appellant. The appellant will be entitled to costs of the trial  Court, the First Appellate Court and the High Court.  Parties  will pay and bear their own costs in this Court. V.P.S. Appeal allowed. (1)62 I. A. 100. 37