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PETITIONER: SMT. ISABELLA JOHNSON

       Vs.

RESPONDENT: M.A. SUSAI

DATE OF JUDGMENT09/10/1990

BENCH: KANIA, M.H. BENCH: KANIA, M.H. OJHA, N.D. (J)

CITATION:  1991 AIR  993            1990 SCR  Supl. (2) 213  1991 SCC  (1) 494        JT 1990 (4)   406  1990 SCALE  (2)928

ACT:     Rent  Control and Eviction: Andhra Pradesh Rent  Control Act,   1960:  Section  3--Eviction   suit--Jurisdiction   of Courts--Res judicata and Estoppel-- Whether applicable.     Civil Procedure Code, 1908: Section 11--Jurisdiction  of Courts  --Pure question of law--Res  judicata--Applicability of.     Evidence,  Act, 1872: Section 115--   Estoppel--Applica- bility of in regard to jurisdiction of Courts.

HEADNOTE:     The  Respondent-landlord filed a suit under  the  Andhra Pradesh Rent Control Act for recovery of possession and  for mesne profits. The apPellant-defendant raised a  preliminary objection  that the City Civil Court had no jurisdiction  to entertain  the  suit. In the two  eviction  petitions  filed earlier by the appellant, the Respondent took the plea  that since  the alleged tenancy was hit by Section 3 of the  A.P. Rent Control Act, eviction suit was not entertainable by the Rent Controller.     Decreeing the suit in favour of the appellant, the trial Court  held that it was not oPen to the Respondent  to  take such  inconsistent  plea  regarding  jurisdiction;  that  he cannot  be  allowed to approbate and reprobate  and  he  was estopped  from doing so. On apPeal by respondent, the  deci- sion  was upheld by the First Appellate Court. On  a  second apPeal preferred by the respondent, the High Court  reversed the trial court’s order.     Aggrieved by the decision of the High Court, the  appel- lant  preferred  this apPeal, by special  leave,  contending that  the principles of Res Judicata and estopPel  were  ap- plicable. Dismissing the apPeal, this Court,     HELD: 1. A court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata. It is well settled that there can be no estop- pel on a pure question of law. [217F] 214     Mahtura  Prasad Bajoo Jaiswal and Ors. v. Dossibai  N.B. Jeejeebhoy,  [1970] 3 SCR 830; Sushil Kumar Mehta v.  Gobind Ram  Bohra (dead) thro’ his Lrs., [1990] 1 SCC  193;  relied

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on.     Avtar Singh and Ors. v. Jagjit Singh and Anr., [1979]  4 SCC 83; referred to.     2. In the instant case, the question of jurisdiction  is a  pure  question of law. The High Court was  right  in  its conclusions that in matters of jurisdiction to entertain the suit,  doctrine of estoppel could not be invoked;  and  that the  City Civil Court had no jurisdiction to  entertain  the suit,  as it lay exclusively within the jurisdiction of  the Rent Controller. [216A-B]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 277 1  of 1981.     From the Judgment and Order dated 5.2.1980 of the Andhra Pradesh High Court in S .A. No. 526 of 1977. Jagdish K. Agarwal (N.P.) for the Appellant. A Subba Rao for the Respondents. The Judgment of the Court was delivered by .     KANIA,  J. This is an appeal by special leave  from  the decision  of  a learned Single Judge of the  Andhra  Pradesh High Court in Second Appeal No. 526 of 1977.     As  we are, with respect, in agreement with the  conclu- sions  arrived  at by the learned Single Judge of  the  High Court,  we propose to set out only the bare facts  essential for the purposes of our judgment.     The  appellant was the plaintiff and the respondent  was the  defendant  in Suit. O.S. No. 789 of 1973 filed  in  the Court  of the Third Assistant Judge, City Civil Court,  Hyd- erabad.  The appellant prayed for a decree for  recovery  of possession of the suit premises from the respondent and  for mesne  profits till the delivery of possession of the  prem- ises.  The case of the appellant was that she was the  owner of  the suit premises and the respondent was in the  occupa- tion of the said premises on payment of Rs.30 per month. The respondent had been 215 irregular  in  the payment of the said rent and had  been  a source of perpetual nuisance. It was on this ground that the eviction of the premises was sought by the appellant. In his written  statement the respondent took a preliminary  objec- tion that the City Civil Court had no jurisdiction to enter- tain  the suit as the suit fell within the  jurisdiction  of the Rent Controller at Hyderabad. Two petitions had  earlier been  filed by the appellant before the Rent Controller  for eviction  of  the  respondent and the  Rent  Controller  had rejected  the same on the ground that the purported  tenancy of  the  respondent was hit by section 3 of  the  A.P.  Rent Control Act and hence, the eviction suit was not  entertain- able  by the Court of Rent Controller. This  conclusion  was arrived  at  on a plea to the said effect taken by  the  re- spondent.  In the Court of learned Third Assistant Judge  of the City Civil Court at Hyderabad the respondent took up the plea that the suit fell exclusively within the  jurisdiction of the Rent Controller and hence the City Civil Court had no jurisdiction to entertain the suit. Certain pleas were  made regarding  amendments in the law with which we are not  con- cerned  in  this appeal. What is material to  note  for  our purposes  is that the learned Assistant Judge took the  view that  as  the respondent had, before  the  Rent  Controller, taken  up the plea that it was not the Rent  Controller  but the City Civil Court which had the jurisdiction to entertain

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the  eviction  petition against him, and the said  plea  was upheld,  it  was not open to the respondent to take  up  the inconsistent  plea before the City Civil Court that  it  was the  Rent Controller and not the City Civil Court which  had jurisdiction to entertain the proceedings. It was held  that the respondent could not be allowed to approbate and  repro- bate and that he was estopped by way of pleading to take  up an inconsistent plea regarding jurisdiction.     On  the basis of this conclusion, and other  conclusions with which we are not concerned, the suit was decreed by the learned  Assistant  Judge in favour of  the  appellant.  The decision  of  the learned Assistant Judge was upheld  in  an appeal  filed by the respondent in the Court of the  learned Additional Chief Judge of the City Civil Court at Hyderabad. On a second appeal preferred by the respondent, the  learned Single Judge of the High Court took the view that in matters of jurisdiction the question of estoppel does not arise.  If the  City Civil Court has no jurisdiction to  entertain  the suit, the doctrine of estoppel could not be invoked so as to confer jurisdiction on the Court of City Civil Court. On the question  of  jurisdiction the learned Judge took  the  view that  the City Civil Court had no jurisdiction to  entertain the  suit as it lay exclusively within the  jurisdiction  of the Rent Controller. 216     Learned  counsel  for the appellant submitted  that  the learned Judge of the High Court was in error,as the  earlier decisions  of the Rent Controller to the effect that it  was the City Civil Court and not the Rent Controller who had the jurisdiction to entertain the suit for eviction filed by the appellant  against the respondent, constituted res  judicata between the parties on the question of jurisdiction. It  was submitted by him that, even if that decision was wrong,  the issue  of jurisdiction was finally decided between the  par- ties  and that decision was that it was the Civil Court  and not the Rent Controller that had the jurisdiction to  enter- tain  and dispose of the suit for eviction. He further  sub- mitted  that the respondent could not be permitted  to  take inconsistent  pleas  as he was barred by the  principles  of estoppel from taking up the plea before the Civil Court that it  was the Rent Controller who had the exclusive  jurisdic- tion to entertain the suit. He placed reliance on a decision rendered  by a Division Bench comprising two learned  Judges of this Court in Avtar Singh and Others v. Jagjit Singh  and Another, [1979] 4 SCC 83 which took the view that the  Civil Court’s decision regarding lack of jurisdiction will operate as res judicata in a subsequent suit. In that case the Civil Court  declined jurisdiction. The Civil Court took the  view that it had no jurisdiction to try the suit in question  and directed the return of the plaint for representation to  the appropriate  Revenue Court. When the claim was filed in  the Revenue Court, the Court took the view that it had no juris- diction to try the claim. Thereupon, a suit was again insti- tuted  in  the Civil Court for the lame  relief.  This  suit failed  throughout on the ground of res judicata. I?he  High Court affirmed the dismissal and the Division Bench of  this Court took the view that the High Court was right in  taking the view hat the principles of res judicata were  applicable to the issue of jurisdiction. In our opinion, the contention of  learned counsel for the appellant cannot be  upheld.  We find  that  in Mathura Prasad Bajoo Jaiswal  and  Others  v. Dossibai N.B. Jeejeebhoy, [1970] 3 SCR 830 at p. 836 a Bench comprising three learned Judges of this Court has taken  the view that a decision on the question of jurisdiction of  the court  or a sure question of law unrelated to the  right  of

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the  parties to a previous suit, is not res judicata in  the subsequent suit. The Court observed: "It is true that in determining the application of the  rule of res judicata the Court is not concerned with the correct- ness  or  otherwise of the earlier judgment. The  matter  in issue,  if it is one purely of fact, decided in the  earlier proceeding by a competent court must in a subsequent litiga- tion between the same parties be regarded as finally decided and  cannot  be reopened. A mixed question of law  and  fact determined 217 in the earlier proceeding between the same parties may  not, for the same reason, be questioned in a subsequent  proceed- ing 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 of the  Code  of Civil  Procedure means the right litigated between the  par- ties, 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  proce- dure cannot supersede the law of the land."     The same view has been reiterated by a Bench  comprising three learned Judges of this Court in Sushil Kumar Mehta  v. Gobind Ram Bohra (dead) through his Lrs., [1990] 1 SCC  193. We  find that the decision of three learned Judges  of  this Court in Mathurn Prasad Bajoo Jaiswal and Others v. Dossibai N.S. Jeejeebhoy, has not been noticed at all by the Division Bench  comprising  two learned Judges of  this  Court  which delivered  the judgment in Avtar Singh and Others v.  Jagjit Singh and Another, and hence, to the extent, that the  judg- ment in Avtar Singh’s case takes the view that the principle of  res judicata is applicable to an erroneous  decision  on jurisdiction,  it  cannot be regarded as good  law.  In  our opinion  a court which has no jurisdiction in law cannot  be conferred  with the jurisdiction by applying  principles  of res judicata. It is well settled that there can be no estop- pel on a pure question of law and in this case the  question of jurisdiction is a pure question of law.     In  our  view, therefore, the High Court was,  with  re- spect,  right in its conclusions arrived at and  the  appeal must be dismissed.     The  appeal is dismissed. Looking to the facts and  cir- cumstances of the case there will be no order as to costs. G.N.                                            Appeal  dis- missed. 218