PETITIONER:
SUNDER DASS
Vs.
RESPONDENT:
RAM PRAKASH
DATE OF JUDGMENT24/02/1977
BENCH:
BHAGWATI, P.N.
FAZALALI, SYED MURTAZA
CITATION:
1977 AIR 1201 1977 SCR (3) 60
1977 SCC (2) 662
ACT
Delhi Rent Control Act. 1958--Sec. 3--proviso--Interpre-
tation of statutes ---Introduction of proviso with retro-
spective effect--Whether decree passed earlier becomes a
nullity--Legal fiction--Whether to be carried to logical
conclusion.
HEADNOTE
The appellant purchased in a public auction a building
which was evacuee property. Before the sale certificate was
made out in favour of the appellant, the-possession of the
building was handed over to him. He in turn let out a shop
in the said building to the respondent. The appellant filed
a suit for eviction in the Civil Court against the respond-
ent. The Civil Court passed a decree for eviction and
negatived the contention of the respondent that the Delhi
Rent Control Act, 1958 was applicable and, therefore, the
jurisdiction of the Civil Court was barred. The Court
relied on section 3 of the Delhi Rent Control Act which
provides that nothing in the Act shall apply to any premises
belonging to the Government. The decree for eviction was
confirmed by the Appellate Court and then by the High Court
in Second Appeal. Before the decree could be executed
section 3 was amended by adding a proviso with retrospective
effect, which provided that where any premises belonging to
Government have been lawfully let out by any person, then
notwithstanding any judgment, decree or order of any court
the provisions of the Act would apply to the tenancy. The
Executing Court held that it was not competent to it .to go
into the question whether the decree was rendered d nullity
on the ground that the jurisdiction of the Civil Court was
ousted by the introduction of :the proviso in section 3 with
retrospective effect since the decree had become final
between the parties. The Appellate Court upheld the said
decision. The High Court in Second Appeal reversed the
decision of the two courts below and held that the decree
was a nullity and could not be executed.
Dismissing the appeal this Court,
HELD :(1) An executing court cannot go behind the.
decree nor can it question its legality or correctness but
where a decree sought to be executed is a nullity for lack
of inherent jurisdiction in the court passing it, its inva-
lidity can be set up in an execution proceeding. [64C-D]
Vide Kiran Singh v. Chaman Paswan [1955] 1 SCR 177 and
Seth Hiralal Patni v. Sri Kali Nath, [1962] 2 SCR 747,
followed.
(2)-Since the proviso was introduced with retrospective
effect it must be deemed to be part of section 3Since. the
time the Delhi Rent Control Act was enacted. [65-D]
East End Dwellings Co. Ltd. v. Finsbury Borough Council
[1952] A.C. 132, approved.
As a result of the fiction the proviso must be deemed to
be-part of section 3 from the date of enactment of the Act.
The logical and inevitable Consequence of the introduction
of the proviso. in section 3 with retrospective effect would
be to read the proviso as if it were part of the section at
the date when the Act was ’enacted, and the legal fiction
created by the retrospective operation must be carried to
its logical extent and all the consequences and incidents
must be worked out as if the proviso forms part of the
section right from the beginning. The phrase "notwithstand-
ing any judgment; decree or order of any court" in the
proviso makes it clear that the legislature intended" that
the finality of the judgment,decree etc., should not stand
in the way of giving full effect to the= retrospective
operation of the proviso in section 3. [66C-G]
61
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2006
of 1968.
(From the Judgment and Decree dated 26-11-1961 of the
Punjab High Court Circuit Bench at Delhi in Execution Second
Appeal No. 158-D of 1964).
Bishan Narain and D.N. Mishra, for the appellant.
V.S. Desai, B.P. Singh and A.K. Srivastava, for the respond-
ent.
The JUdgment of .the Court was delivered by
BHAGWATI, J.--This appeal by certificate raises a short
but interesting question of law relating to the interpreta-
tion and effect of the proviso to section 3 of the Delhi
Rent Control Act, 1958. The dispute in this appeal relates
to a shop situate on the ground floor of a building bearing
Municipal No. 624-36 (Old) 530-35 (New) situate in Sadar
Bazar, Delhi. The building was an evacuee property and it
was acquired by the Central Government under section 12 ,of
the Displaced Persons (Compensation and Rehabilitation)
Act, 1954 and formed part of the compensation pool. It
was sold by public auction and the appellant being the
highest bidder was accepted as the auction purchaser by the
managing officer on 5th September, 1955. It does not
appear from the record as to when the appellant paid the
full purchase price to the managing officer but presumably
he did so before 23rd September, 1955 when the sale was
confirmed in his favour by the managing officer. The sale
certificate was not issued in favour of the appellant for a
considerable time and we are told that even until now it has
not been issued, but possession of the building was handed
over to. the appellant on 30th August, 1956 and a letter
dated 3rd September, 1956 was addressed by the managing
officer to the respondent intimating to him that since
possession of the building had been handed over to the
appellant, the respondent should pay rent to the appellant
and otherwise deal directly with him with effect from 30th
August. 1956. This letter was addressed to the respondent,
because at that time the respondent was in possession of one
other shop in the same building as a tenant and pursuant to
this letter, he attorned tenancy in respect of that shop to
the appellant. On 1st September, 1956, the appellant let out
the shop in dispute thereinafter referred to as the prem-
ises) to the respondent and the latter continued in posses-
sion of the premises as a monthly tenant. However, on 10th
August, 1959 the appellant gave a notice to quit terminating
the tenancy of the respondent and calling upon him to hand
over vacant possession of the premises by the mid-night of
31st August, 1959. The respondent declined to comply with
the requisition contained in the notice and hence the appel-
lant filed a suit in the Court of the Senior Subordinate
Judge, Delhi on 15th September, 1959 for recovery of posses-
sion of the premises from the respondent. There was also a
claim made in the suit for recovery of arrears of rent
but this claim is no longer material and we need not dwell
on it. The respondent resisted the claim for eviction inter
alia on the ground that the certificate of sale not having
been issued in favour of the
62
appellant, he was not the owner of the premises and hence he
was not legally competent to let out the premises to the
respondent nor was he entitled to recover possession of the
premises, from the respondent. The respondent also disputed
the jurisdiction of the court on the ground that the. Delhi
Rent Control Act, 1958 which had come into force on 9th
February, 1959 was applicable to the tenancy of the
premises and by reason of section 50 of that Act, the civil
court had no jurisdiction to entertain the suit. The Trial
Court took the view, on a reading of the decision of this
Court in M/s Bombay Salt and Chemical Industries v. L.J.
Johnson, (1) that since the certificate of sale was not
issued in favour of the appellant, he had not become the
owner of the premises and the premises continued to belong
to the Government and by reason of section 3 which provided
that "Nothing in this Act shall apply to any premises be-
longing to the Government", the Delhi Rent Control Act,
1958 was not applicable to the tenancy in respect of the
premises and the civil court had jurisdiction to entertain
the suit. The Trial Court’ also. held that since the full
purchase price had been paid by the appellant and posses-
sion of the premises had been handed over by the managing
officer to the appellant on 30th August, 1956, the appellant
was legally competent to let out the premises to the re-
spondent and the premises having been lawfully let out by
the appellant to the respondent, there was relationship of
landlord and tenant between the parties and since the
’tenancy was validly terminated by the appellant by giving
notice to. quit in accordance with the provisions of section
106 of the Transfer of Property Act, the appellant was
entitled to recover possession of the premises from the
respondent. A decree for eviction was accordingly passed by
the Trial Court in favour of the appellant. The respondent
preferred an appeal but the appeal was dismissed’ by the
Additional District Judge, Delhi on substantially the same
view as that taken by the Trial Court. This was followed by
a second appeal to the High Court but that appeal also met
with the same fate and the decree for eviction became final
between the parties.
Now, before the decree for eviction could be executed,
an amendment was made in section 3 of the Delhi Rent Control
Act, 1958 which is very material. We shall immediately
refer to, this amendment, but before we do so, it would be
convenient to advert too, few relevant provisions,of the
Delhi Rent Control Act, 1958. This Act came into force with
effect from 9th February, 1959 and it was intended to
provide inter alia for control of rents and evictions.
Section 14, sub-section (1) granted protection to the tenant
against eviction by providing that notwithstanding anything
contained in any other law or contract, no order or decree
for recovery of possession of any premises shall be made by
any court or Controller in favour of the landlord against a
tenant, but the proviso. to this sub-section laid down
certain grounds on which the Controller could, on an appli-
cation made to him in the prescribed manner, make an order
for recovery of possession of the premises. Since the
jurisdiction to make
(1) A.I.R. 1958 S.C. 289.
63
an order for recovery of possession of premises o.n one or
more of the specified grounds was given to the Controller
under section 14, subsection (1), section 50 ousted the
jurisdiction of the civil court by declaring that, save as
otherwise expressly provided in the Act, no civil court
shall entertain any suit or proceeding in so far as it
relates inter alia to eviction of any tenant from any prem-
ises to which the Act applies or to any other matter which
the Controller is empowered by or under the Act to decide.
If, therefore, the premises in the present case were prem-
ises to which the Act applied, the civil court would have no
jurisdiction to entertain the suit filed by the appellant
for recovery of possession of the premises from the respond-
ent. But section 3, as it stood prior to its amendment, by
Act 4 of 1963, provided that nothing in the Act shall apply
to any premises belonging to the Government. The view taken
by the Trial Court and affirmed by the Additional District
Judge and the High Court was that since the certificate of
sale was not issued in favour of the appellant, the premises
continued ’to belong to the Government and on this view, the
Act clearly did not apply tO the premises and neither sec-
tion 14, sub-section (1) nor section 50 being applicable,
the civil court continued to have jurisdiction to entertain
the suit. This was the reason why the decree for eviction
was passed by the Trial Court against the respondent and it
was affirmed by the Additional District Judge and the High
Court. But by the time the decree for eviction came to be
executed, the following proviso was added in section 3 by
Act 4 -of 1963 with retrospective effect:
"Provided that where any premises be-
longing to Government have been or are lawful-
ly let by any person by virtue of an agreement
with the Government or otherwise, then, not-
withstanding any judgment, decree or order of
any court or other authority, the provisions
of this Act shall apply to such tenancy."
The effect of the addition of the proviso with retro-
spective effect was as if the proviso had always been there
right from the time when the Act was enacted. Therefore,
when an application was flied by the appellant for execution
of the decree for eviction against the respondent on 31st
August, 1963, an objection was raised on behalf of the
respondent that by reason of the retrospective introduction
of the proviso in section 3, the decree for eviction was
rendered null and void as a decree passed by a court without
jurisdiction and hence it was not executable against the
respondent. This objection was negatived by the executing
court on the ground that that was not an .objection which
could be entertained in execution and the executing court
must proceed to execute the decree which had become final
between the parties. The respondent preferred an appeal but
the first appellate court took the view that, on the facts
of the case, the proviso to section 3 was not attracted and
hence the decree for eviction .could not be said to be one
passed by a court without jurisdiction and on this view, it
upheld the order of the executing court and rejected the
appeal. This led to the filing of a further appeal and in
this appeal the High Court held ’that since the certificate
of sale was hot issued in favour of the appellant, the
building continued to belong
64
to the Government but the appellant having paid the full
purchase price of the building and the sale of the building
in favour of the appellant having been confirmed and posses-
sion having been handed over to him in pursuance of the
sale, the appellant was legally competent to let out the
premises to the respondent and the letting of the the prem-
ises by the appellant in favour of the respondent on 1st
September, 1956 was lawful and hence the condition for the
applicability of the proviso to section 3 was satisfied, and
since the proviso was introduced in section 3 with retro-
spective effect, it must be held that the Act was applicable
to the premises at the date of the institution of the suit
and consequently the civil court had no jurisdiction to
entertain the suit and in that view, the decree for eviction
was a nullity. The High Court accordingly allowed the
appeal and held that the decree for eviction being null and
void could not be executed against the respondent. This
view taken by the. High Court is challenged in the present
appeal preferred by special leave obtained from this Court.
Now, the law is well settled that an executing court
cannot go behind the decree nor can it question its legali-
ty or correctness. But there is one exception to this gener-
al rule and that is that where the decree sought to be
executed is a nullity for lack of inherent jurisdiction in
the court passing it, its invalidity can be set up in an
execution proceeding. Where there is lack of inherent
jurisdiction, it goes to the root of the competence of the
court to try the case and a decree which is a nullity is
void and can be declared to be void by any court in which
it is presented. Its nullity can be set up whenever and
whenever it is sought to be enforced or relied upon and even
at the stage of execution or even in collateral proceedings.
The executing court can, therefore, entertain an objection
that the decree is a nullity and can refuse to execute the
decree. By doing so, the executing court would not incur
the reproach that it is going behind the decree,
because the the decree being null and void, there would
really be no decree at all. Vide Kiran Singh v. Chaman
Paswan(1) and Seth Hiralal Patni v. Sri Kali-Nath.(2) It
is, therefore, obvious that in the present case, it was
competent to the executing court to examine whether the
decree for eviction was a nullity on the ground that the
civil court had no inherent jurisdiction to entertain the
suit in which the decree for eviction was passed. If the
decree for eviction was a nullity, the executing court could
declare it to be such and decline to execute it against the
respondent.
The position which obtained when the suit for eviction
was instituted by the appellant against the respondent was
that section 3, as it stood prior to.its amendment by Act 4
of 1963, was in force and that excluded the applicability of
the Delhi Rent Control Act. 1958 to premises belonging to
the Government. The premises in the present case, were
vested in the Government under section 12 of the Displaced
Persons (Compensation & Rehabilitation) Act, 1954 and they
were sold by public auction to the appellant and though full
purchase price
(1) [1955] 1 S.C.R. 117. (2) [1962] 2 S.C.R. 747.
65
was paid by the appellant and the sale was confirmed in his
favor and possession was also handed over to him, the cer-
tificate of sale was, for some inexplicable reason, not
issued in his favour. The Trial Court, therefore, took the
view, and this view was affirmed by the Additional District
Judge as well as the High Court, that the appellant did not
become the owner of the premises and they continued to
belong to the Government and for this reason, it was held
that the Delhi Rent Control Act, 1958 did not apply to the
premises and the civil court had jurisdiction to entertain
the suit for eviction. The Trial Court also found, and
this finding too was accepted by the Additional District
Judge as well as the High Court, that though the certificate
of sale was not issued in his favour, the appellant was
competent to let out the premises and the letting of the
premises by him in favour of the respondent on 1st Septem-
ber, 1956 was lawful and since the tenancy of the respond-
ent was validly terminated by the appellant by giving
notice to quit, the appellant was entitled to a decree
for eviction against the respondent. But, as pointed out
above, section 3 was amended with retrospective effect by
the introduction of the proviso and the question is whether
the introduction of the proviso with retrospective effect
had the effect of rendering the decree for eviction null and
void.
Since the proviso was introduced with retrospective
effect, it must be deemed to be part of section 3 since the
time that the Delhi Rent Control Act, 1958 was enacted. It
was pointed out by Lord Asquith of Bishopstone in East End
Dwellings Co. Ltd. v. Finsbury Borough Council(1) in a
passage which has become classical by reason of its felicity
of language that "if you are bidden to treat an imaginary
state of affairs as real, you must surely, unless prohibited
from doing so, also imagine as real the consequences and
incidents which, if the putative state of affairs had in
fact existed, must inevitably have flowed from or accompa-
nied it. One of those in this case is emancipation from the
1939 level of rents. The statute Says that you must imagine
a certain state of affairs; it does not say that having done
so, you must cause or permit your imagination to boggle when
it comes to the inevitable corollaries of that state of.
affairs". The proviso must, therefore, for all legal pur-
poses, be deemed to have been included in section 3 as
from the date of enactment of the Delhi Rent. Control Act,
1958. If that be the true position, then obviously it must
be held that the provisions of the Delhi Rent Control Act,
1958 were applicable to the tenancy of the respondent, for
the premises though belonging to the Government, were law-
fully let out by the appellant to the respondent and the
condition of the proviso was satisfied. That was the posi-
tion which, by reason of the legal fiction brought about by
the retrospective introduction of the proviso in section, 3,
must be held to have prevailed at the date. of the institu-
tion of the suit and the provisions of the Delhi Rent Con-
trol Act, 1958 being applicable, it must be concluded that
the civil court had no inherent jurisdiction to entertain
the suit (vide section 50) and the decree for eviction was a
nullity. Prima facie, it may appear somewhat strange that a
decree for eviction which was good and valid when it was
made should be treated as null and void by
"(1) [1952] A..C. 132.
66
virtue-of the retrospective introduction of the proviso in
section 3. But such a result is necessarily involved in the
legal fiction created by the retrospective operation of the
proviso. If, as a result of the said fiction, we must read
the proviso as forming part of section 3 as from the date of
enactment of the Delhi Rent Control Act, 1958, the conclu-
sion is inescapable that the civil court had no inherent
jurisdiction to entertain the suit and the Trial Court as
well as the Additional District Judge and the High Court
were in error in exercising jurisdiction in relation to the
suit when their Jurisdiction was clearly excluded by section
50.
The appellant, however, urged that the introduction of
the proviso in section 3 should not be given greater retro-
spective operation than necessary and it should not be so
construed as to affect decrees for eviction which had al-
ready become final between the parties. Now, it is true, and
that is a settled principle of construction, that the court
ought not to give a larger retrospective operation to a
statutory provision than what can plainly be seen to have
been meant by the legislature. This rule of interpretation
is hallowed by time and sanctified by decisions, though we
are not at all sure whether it should have validity in the
context of changed social norms and values. But even so, we
do not see how the retrospective introduction of the proviso
in section 3 can be construed so as to leave unimpaired a
decree for eviction already passed, when the question arises
in execution whether it is a nullity. The logical and
inevitable consequence of the introduction of the proviso in
section 3 with retrospective effect would be to read the
proviso a.s if it were part or the section at the date when
the Delhi Rent Control Act, 1958 was enacted and the legal
fiction created by the retrospective operation must be
carried to its logical extent and all the consequences and
incidents must be worked out as if the proviso formed part
of the section right from the beginning. This would clearly
render the decree for eviction a nullity and since in execu-
tion proceeding, an objection as to nullity of a decree can
always be raised and the executing court can examine whether
the decree iS a nullity, the principle of finality of the
decree cannot be invoked by the appellant to avoid the
consequences and incidents flowing from the retrospective
introduction of the proviso in section 3. Moreover the
words notwithstanding any Judgment, decree or order of any
court or or other authority in the proviso make it clear
and leave no doubt that the legislature intended that the
finality of "judgment, decree or order of any court or other
authority" should not stand in the way of giving full effect
to the retrospective introduction of the proviso in section
3 and applying the provisions of the Delhi Rent Control
Act, 1958 in cases falling m the proviso.
We are therefore, of the view that the High Court was
right in taking the view that by reason of the introduction
of the proviso in section 3 with retrospective effect the
decree for eviction was a nullity and the executing court
was justified in declining to execute it against the re-
spondent.
67
We accordingly dismiss the appeal with costs throughout
but order and direct the respondent to pay to the appellant
all the arrears of rent in respect of the premises which
remain to be paid by him to the appellant in the following
installments: Rs. 2,000/- on or before 30th April, 1977; and
out of the balance a further sum of Rs. 2,000 within three
months thereafter and the balance, if any, by 31st
October, 1977. The respondent through his counsel under-
takes to make payment of the arrears in the manner afore-
said.
P.H.P. Appeal
dismissed.
68