Holding

A civil court has no jurisdiction to entertain a counter‑claim for eviction under Section 10(2)(vi) of the A.P. Buildings (Lease, Rent & Eviction) Control Act; such matters must be before the Rent Controller and any decree passed by the civil court is a nullity.

Summary

The appellant, a tenant, entered into an oral agreement of sale with the respondents (landlords) and later sued for specific performance. The respondents alienated the property to third parties and filed a counter‑claim for possession, alleging the tenant had denied the landlord's title. The trial court entertained the counter‑claim despite not framing any issue, relying on Order VII Rule 7 CPC. The High Court upheld the counter‑claim, holding that the rent‑control provisions did not bar the suit. The Supreme Court held that under the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960, eviction on the ground of denial of title must be decided by the Rent Controller, and a civil court lacks jurisdiction; any decree passed by it is a nullity. Consequently, the counter‑claim was set aside, while the dismissal of the specific‑performance suit was affirmed. The appeal was partly allowed.

Issues considered

The civil court's jurisdiction to entertain a counter‑claim for eviction on the ground of denial of landlord's title under the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960.
Whether a decree for eviction passed by a civil court is valid when the statute requires the matter to be before the Rent Controller.
Whether a counter‑claim can be decided when no specific issue was framed in the trial court.

Legislation cited

Code of Civil Procedure, 1908s. Order VII Rule 7
Specific Relief Act, 1963
Transfer of Property Act, 1882s. 106, s. 53-A, s. 54

Subjects

Rent controlEvictionJurisdictionCivil courtRent ControllerSpecific performanceCounter‑claimApprobate and reprobateLandlord‑tenant relationshipSection 10(2)(vi)Nullity of decree

Judgment

DEVA SAHA YAM (D) BY LRS. A
V.
P. SA VITHRAMMA AND ORS.

SEPTEMBER 16, 2005

[S.B. SINHA AND C.K. THAKKER, JJ.) B

Rent Control and Eviction-A.?. Buildings Lease, Rent and Eviction
Control Act, 1960-Sec. 10(1), 10(2)(vij-Eviction on the ground of denial of
title-Held, Civil court has no jurisdiction to entertain the relief by way of C
counter claim in a suit for specific performance.

Specific Relief Act, 1963-0rder Vll Rule 7 CPC-Suit for specific
performance and declaration by tenant against a landlord-Counter claim by
the landlord for the relief of possession on ground of denial of title-No
finding in any rent control proceeding about bona fide of the claim-Held, D
Civil Court has no jurisdiction

Appellant was a tenant of the predecessors' in interest of Respondent
Nos. I to 4. Under an oral agreement of sale entered into by and between
the Appellant and the respondents the deed of sale was submitted for
approval of the Ceiling Authorities. The factum of grant of approval of E
the said deed of sale was not conveyed and when he came to learn about
it a suit for specific performance of the contract was filed. Respondent
alienated the suit property in favour of Respondent Nos. 6 & 7. Appellant
filed an application for amendment of plaint questioning the alienation
and praying for declaration that the deed of sale in favour of Respondent F
Nos. 6 and 7 herein is null and void. A second written statement was filed
wherein a counter-claim was made, for the relief of possession.

The Trial Court did not frame any specific issues about counter-
claim. The Trial Judge proceeded to consider the issue as regard the
counter-claim and rejecting the contention made by the plaintiff that the G
court has no jurisdiction to entertain the counter-claim, held that as the
Appellant had denied the title of the landlord, the civil court has
jurisdiction to entertain the counter-claim of the defendants in tetms of
Order VII, Rule 7 of the code of Civil Procedure.

255 H
256 SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.

A The High Court rejected the claim of the Appellant as regard decree
for specific performance of contract and held that having set up a false
plea of agreement and totally in regard to his tenancy, it cannot be said
that the remedy of the defendants is to approach the authorities under
the provisions of Rent Control Act.

B Before this Court Appellant contended that as no issue had been
framed as regard the counter-claim, no decree thereupon could have been
passed, and in any view of the matter the Civil Court has no jurisdiction
to determine the same. Respondent No. 6 contended that despite the
provisions contained in A.P. Building (Lease, Rent & Eviction) Control
C Act, 1960, the Civil Court had the requisite jurisdiction to determine the
counter-claim in view of the fact that the tenant cannot be permitted to
approbate and reprobate at the same time, that the Appellant in the plaint
has claimed possession in his capacity as a vendee and not as a tenant and,
thus, a different relationship between the parties having come into being,
the relationship of the landlord and tenant did not revive automatically
D upon his failure to establish his claim, that when the plaintiff sets up title
in himself which is inconsistent with his plea of tenancy and if he, having
not succeeded in establishing his former claim, cannot now turn round
and contend that he should be granted the relief to continue to be in
possession of the suit premises as if he is a tenant and that although two
inconsistent defences are permissible, such defences should not be mutually
E destructive. Respondent Nos. 2 to 5 contended that father of original
defendant filed an eviction petition in the court of Rent Controller against
the Appellant herein on the ground of wilful default in payment of arrears
of rent wherein the Appellant herein in his written statement raised a plea
of the agreement for sale claiming a title in himself.
F Allowing the Appeal partly, this Court

HELD: 1. A suit for eviction under the said Act would be before a
Rent Controller and not before a Civil Court. In terms of proviso
appended to Section 10(1) of the said Act before the parties to pursue their
remedies in a civil court a Rent Controller is required to arrive at a finding
G as regard the bone fide or otherwise of the claim of the tenant. There
cannot be any doubt whatsoever that the Respondents could have
maintained a proceeding for iwiction before the Rent Controller on the
said ground. Once such a proceeding could be initiated under the said Act,
the jurisdiction of the civil could would be held to have been ousted.
H (264-G-H; 265-A; 266-G-H; 267-AJ
DEVA SAHA YAM (D) BY LRS. v. P. SAVITHRAMMA 257

Sheela and Ors. v. Firm Prah/ad Rai Prem Prakash, (2002) 3 SCC 375, A
referred to.

2. A party to a lis cannot raise pleas which are mutually destructive
but ordinarily inconsistent defences can be raised. Respondent No. 2 to 5
were Plaintiffs in respect of their counter-claim and, thus, it was for them
to prove their case by pleading such foundational facts as were required B
to obtain a decree in their favour. The Respondents, as noticed
hereinbefore, in their written statement categorically stated that the
plaintiff had been in possession of the land as a tenant and his possession
is that of tenant even to this day and, thus, according to the defendant
the Appellant continued to be a tenant. As in the counter-claim such a C
plea had been taken, the Respondents on their own showing raised
inconsistent pleas which are said mutually destructive. Respondents in the
counter-claim did not advance a plea for forfeiture of tenancy nor did they
raise any contention that the landlord has issued a notice conveying his
intention to determine the lease. The doctrine of approbate and reprobate
is a species of estoppel. However, there cannot be any estoppel against a I)
statute. (267-A-C, F-G-H(

MD, Army Welfare Housing Organisation v. Sumangal Services (P) Ltd.,
(2004) 9 sec 619, relied on.

Nagubai Ammal and Ors. v. B. Shama Rao and Ors., AIR (1956) SC E
593, distinguished.

3. The Respondents herein cannot be permitted to raise a plea that
the suit for eviction was not pursued before the Rent Controller only
because the appellant had raised the plea that the Rent Controller had
no jurisdiction in the matter. The matter might have been otherwise if in F
the said proceedings a finding was arrived at that the court has no
jurisdiction upon acceptance of the said plea by the Appellants herein.
(268-E-F)

Sultan and Ors. v. Ganesh and Ors., (1988) 1 SCC 664 and Rekha G
Mukherjee v. Ashish Kumar Das and Anr., (2004) 1 SCC 483, referred to.

R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683; Arjun/al Bhatt Mall
Gothani and Ors. v. Girish Chandra Dutta and Anr., (1973) 2 SCC 197 and
R.Kanthimathi and Anr. v. Beatrice Xavier (Mrs.), [2000( 9 SCC 339,
distinguished. H
258 SVPREME COURT REPORTS (2005) SUPP. 3 S.C.R.

A 4. It is now well-settled that a decree passed by a court having no
jurisdiction in nullity. The Civil court had no jurisdiction to pass a decree
for eviction only on the basis that the tenant has denied their title. The
matter might have been different if the civil court has otherwise
jurisdiction to entertain a suit. The legislature has created new rights and
liabilities for both the landlord and tenant in terms of the provisions of
B the said Act and provided a forum therefor. The jurisdiction of the civil
court having been barred except in a situation where the proviso appended
to section 10 (1) would be attracted, the Civil court has no jurisdiction to
entertain a suit for eviction on a ground envisaged under Section 10(2)(vi)
of the A.P.Building (Lease, Rent & Eviction) Control Act. The Civil court,
C thus, had no jurisdiction to entertain the counter-claim.
[269-F-H; 270-AJ

Kiran Singh and Ors. v. Chaman Paswan and Ors., AIR (1954) SC 340;
Bihar State Mineral Development Corporation and Anr. v. Encon Buildings
(/) (P) ltd, [20031 7 SCC l; Dwarka Prasad Agarwal v. B.D.Agarwal, [20031
D 6 SCC 230; Asl10k Leyland Ltd v. State of TN. and Anr., [20041 3 SCC l
and Church of North of India v. Lavajibhai Ratanjibhai and Ors., JT (2005)
5 SC 202, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5477 of2004.

E From the Judgment and Order dated 19.1.2004 of the Andhra Pradesh
High Court in C.C.C.A. No. 162 of 2002.

Anant Vijay Palli, Mrs. Rekha Palli, J. Mastan Babu and Mrs. Shubra
Singh for the Appellants.

F Dipankar Gupta, P.S. Narasimha, Sridhar Potaraju, Ananga
Bhattacharyya, Avijeet Kumar Lala for M/s. P.S.N. & Co. for the Respondent.

L. Nageshwara Rao, A. Sobba Rao, A.T. Rao and Naik H.K. for the
Respondent Nos. 2-5.

G The Judgment of the Court was delivered by

S.B. SINHA, J. This appeal is directed against a judgment and order
dated 19.1.2004 passed by a Division Bench of the Andhra Pradesh High
Court whereby and whereunder the appeal preferred by the Appellant herein
from a judgment and order dated 3.6.2002 passed by the II Senior Civil
H Judge, City Civil Court, Hyderabad in O.S. No. 307 of 1998 was dismissed.
DEVA SAHA YAM (D} BY LRS. v. P. SAVITHRAMMA [S.B. SINHA. J.] 259

The basic fact of the matter is not in dispute. The Appellant herein was A
a tenant of the predecessors' in interest of the Respondent Nos. I to 4.
Allegedly, an oral agreement of sale was entered into by and between the
Appellant and the Respondents for a total consideration of Rs. 80,000/-.
Allegedly, for execution of the deed of sale approval of the Ceiling Authorities
was necessary wherefor the draft deed of sale was filed before the Ceiling B
Authorities. The said approval is said to have been granted in the year 1977.
According to Appellant, the factum of grant of approval of the said deed of
sale was not conveyed and only in the year 1997 he came to learn thereabout
whereafter the. said suit for specific performance of.the contract was filed.
During the pendency of the suit, the Respondent alienated the suit property
in favour of the Respondent Nos. 6 & 7 herein by reason of a deed of sale C
dated 10.3.1998.

A written statement was filed on 20th July, 1998. In the said written
statement, however, no counter-claim was filed. The Appellant herein filed
an application for amendment of plaint inter alia questioning the alienation
by the original defendants in favour of defendant No. 6 and praying for D
declaration that the deed of sale dated 10.3.1988 executed by defendant Nos.
2 to 5 in favour of Respondent Nos. 6 and 7 herein is null and void.

However, subsequently on or about 6.11. 1995 a second written statement
was filed wherein a counter-claim was made which is as under:
E
"(i) This defendant submits that the plaintiffs who are the tenants of
the defendants since, denied the tenancy and the relationship of
Landlord and Tenant and falsely set up the plea of oral agreement of
sale have forfeited the right to continue in possession, as tenants in
the suit premises and the plaintiffs are liable to be vacated from the F
suit premises as persons not having right any more to be in possession
of the suit property. Hence, the Counter claim for delivery of
possession of the suit property. The defendants are also entitled for
mean (sic) profits from the plaintiffs at the rate of Rs. 1500 from 10th
November, 1992, i.e., for the past three years and also in future.
G
(ii) The cause of action for Counter claim arouse on the day plaintiff
No. I filed suit and the plaintiff denied the defendant's title by setting
up false agreement of sale. The Counter claim is therefore within
time.

(iii) These defendants are paying a Court fee of Rs. 2626/- on the H
260 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A 3/4th Market Value of Rs. 80,000/- framed in the plaint. Under Section
24-A of A.P. Court fee and Suit Valuation Act, which is proper and
sufficient another Court fee of Rs. 2466/- paid of U/s 20 of APCF &
S.U. on the claim of Rs. 54,000/- profit claimed for past 3 years i.e.
from I 0.11.92 to 9 .11.95 which is proper and sufficient.

B (iv) It is, therefore, prayed that the Counter Claim be allowed by
granting the following relief:

(A) The plaintiff be directed to deliver the defendants vacant and
actual possession of the suit property.

C (B) The defendants be directed to pay to the plaintiffs Rs. 54,000/- as
mesne profits.

(C) The defendants be directed to pay to the plaintiffs Rs. 1500/- per
month as further mesne profits from 10.11.95 to the date of eviction.

(D) The defendants be directed to pay to the plaintiffs the costs of the
D counter claim."

The Appellant herein in his replication asserted:

"The Plaintiffs submit that the relief of counter claim for delivery of
possession of the property is not maintainable before this Hon 'ble
E Court, as the suit premises is attracted by the provisions of A.P. (L.R.E.)
Act as there was relationship of landlord and tenant prior to agreement
of sale and the rent last paid was at Rs. 300 p.m. Since this Hon'ble
Court has no jurisdiction to entertain the counter claim for delivery of
possession, the claim is liable to be rejected.
F The Plaintiffs further submit that the Defendants are not entitled
for relief of mesne profits at the rate of Rs. 1500 per month from
I 0.11.92 i.e. for the past 3 years and also in future as the Plaintiff No.
1 paid the entire sale consideration in respect of the Plaint Schedule
Property as stated in the Plaint and are entitled to specific performance
G of agreement of sale and the Defendants are not entitled for any
mesne profits as claimed. Hence, the claim of the Defendants is liable
to be rejected.

The Plaintiffs deny all other adverse allegations which are not
~· ...
specifically traversed herein above and pray that the counter claim of
H the Defendants be rejected."
DEVA SAHAY AM (D) BY LRS. v. P. SAVITHRAMMA [S.B. SINHA, J.) 261

A separate written statement appears to have been filed by the third A
defendant on behalf of defendant Nos. 2, 4 and 5 on or about 2.11.1999. The
third defendant also filed an additional written statement.

The Trial Court, however, as regard counter-claim did not frame any
specific issues. The issues framed by the learned Trial Judge are as under:
B
"(I) Whether there is an agreement of sale in between the parties?

(2) Whether any payments were made under the alleged agreement?

(3) Whether the suit is barred by limitation?

(4) To what relief'?" c
Despite the fact that no issue was framed, the learned Trial Judge
proceeded to consider the issue as regard the counter-claim of the defendant
under Issue No. 4. Rejecting the contention made by the counsel for the
plaintiff that the court has no jurisdiction to entertain the counter-claim, the
learned Trial Judge stated that as the Appellant had denied the title of the D
landlord, the civil court has jurisdiction to entertain the counter-claim of the
defendants in terms of Order VII, Rule 7 of the Code of Civil Procedure.

Without considering any evidence which might have been brought on
records by the parties on the said counter-claim of the Respondents herein, E
the learned Trial Judge allowed the same only on the premise that the
Appellants have failed to establish its case of oral agreement of sale.

The High Court by reason of the impugned judgment and relying upon
a decision of this Court in R. Kanthimathi and Anr. v. Beatrice Xavier (Mrs.),
[2000] 9 sec 339, rejected the claim of the Appellant as regard decree for F
specific performance of contract but as regard the Respondent's counter-
claim, it held:

"That apart, having set up with such a false plea of agreement and
totally in regard to his tenancy, it cannot be said that the remedy of
the defendants is to approach the authorities under the provisions of G
Rent Control Act."

Mr. Anant Vijay Palli, learned counsel appearing on behalf of the
Appellant was not able to persuade us to interfere with the concurrent findings
of fact arrived at by the courts below as regard the Appellant's claim on
H
262 SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

A specific perfonnance of an oral agreement to sale. The learned counsel,
however, would contend that as no issue had been framed as regard the said
counter-claim, no decree thereupon could have been passed, as was purported
to have been done by the Civil Court, and in any view of the matter the Civil
Court has no jurisdiction to detennine the same.

B Mr. Dipankar Gupta, learned senior counsel appearing on behalf of the
Respondent No. 6 herein, however, would submit that despite the provisions
contained in A.P. Building (Lease, Rent & Eviction) Control Act, 1960, the
Civil Court had the requisite jurisdiction to detennine the counter-claim of
the Respondents in view of the fact that the tenant cannot be pennitted to
C approbate and reprobate at the same time. The learned counsel submitted that
the Appellant herein in paragraph 4 of the plaint has claimed possession in
his capacity as a vendee and not as a tenant and, thus, a different relationship
between the parties having come into being, the relationship of the landlord
and tenant did not revive automatically upon his failure to establish his claim.
Strong reliance in this behalf has been placed on Sultan and Ors. v. Ganesh
D and Ors., [1988] l SCC 664, A".iunlal Bhatt Mall Gothani and Ors. v. Girish
Chandra Dutta and Anr., [1973] 2 SCC 197 and R. Kanthimathi (supra).

It was urged by the learned counsel that when the plaintiff sets up title
in himself which is inconsistent with his plea of tenancy and if he, having not
succeeded in establishing his fonner claim, cannot now turn round and contend
E that he should be granted the relief to continue to be in possession of the suit
premises as if he is a tenant. A Ithough two inconsistent defences are
pennissible, Mr. Gupta would argue that such defences should not be mutually
destructive and in support thereof strong reliance has been placed on Abdul
Rahim v. Md. Md. Azimuddin AIR (1965) Patna 156 and C. Mohammed v.
F Ananthachari AIR (1988) Kerala 298.

Relying on or on the basis of the decisions of this Court in Nagubai
Ammal and Ors v. B. Shama Rao and Ors., AIR (1956) SC 593 and R.N.
Gosain v. Yashpal Dhir, [1992] 4 SCC 683, the learned counsel would contend
that the plaintiff cannot approbate and reprobate at the same time.
G
. Mr. L. Nageshwara Rao, learned senior counsel appearing on behalf of
the Respondent Nos. 2 to 5, would supplement the argument of Mr. Gupta.
Drawing our attention to the counter-affidavit filed herein in this appeal he .
would contend that Shri P. Someswar Rao, father of original defendant filed
an eviction petition in the court of Rent Controller against the Appellant
H herein on the ground of wilful default in payment of arrears of rent wherein
DEVA SAHA YAM (D) BY LRS. v. P. SA VITHRAMMA [S.B. SINHA, J.] 263

the Appellant herein in his written statement raised a plea of the agreement A
for sale claiming a title in himself.

A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (the said
Act) was enacted "to consolidate and amend the law relating to the regulation
of leasing of buildings, the control of rent thereof and the prevention of
unreasonable eviction of tenants therefrom in the State of Andhra Pradesh". B
Section I 0 of the said Act provides that except one or more grounds stated
therein no tenant can be evicted from a tenanted premises except by obtaining
a decree passed by the Rent Controller. Section JO (I) of the said Act reads
as under:

"(I) A tenant shall not be evicted whether in execution of a decree C
or otherwise except in accordance with the provisions of this Section
or Sections 12 and 13:

Provided that where the tenant, denies the title of the landlord or
claims right of permanent tenancy, the Controller shall decide whether D
the denial or claim is bona fide and if he records a finding to that
effect, the landlord shall be entitled to sue for eviction of the tenant
in a Civil Court and the Court may pass a decree for eviction on any
of the grounds mentioned in the said sections, notwithstanding that
the Court finds that such denial does not involve forfeiture of the
lease or that the claim is unfounded." E
Denial of relationship of landlord and tenant is one of the grounds for
eviction of a tenant. Section 10(2)(vi) and the proviso appended thereto read
as under:

"(2) A landlord who seeks to evict his tenant shall apply to the F
Controller for a direction in that behalf. If the Controller, after giving
the tenant a reasonable opportunity of showing cause against the
application, is satisfied

*** *** *** ***
(vi) that the tenant has denied the title of the landlord or claimed a G
right of permanent tenancy and that such denial or claim was not
, bona fide.

The Controller shall make an order directing the tenant to put the
landlord in possession of the building and if the Controller is not so H
264 SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

A satisfied, he shall make an order rejecting the application"

Paragraph 4 of the plaint which is referred to by the Counsel for the
parties at the hearing is as under:

"The plaintiff No. I also paid a sum of Rs. I 0000/- as advance and
B earnest money on the date of the said oral agreement and symbolic
possession was delivered on the date of agreement. Earlier to the date
of entering into agreement of sale, the plaintiff No. I was in possession
of the plaint schedule property as tenant and continued thereafter as
a purchaser after entering into an agreement of sale in part performance
of the agreement of sale."
c
The Respondent Nos. I to 4 herein, however, in their written statement
contended:

"In reply to para 4 of the plaint these defendants submits that it is
incorrect to say that the plaintiff No. I paid Rs. 10000/- on the date
D of alleged oral agreement. It is also incorrect to say that the symbolic
possession was delivered on the date of the alleged oral agreement.
The plaintiff No. I was in rossession of Plaint schedule propeny as
a tenant and his possession, is that of tenant even to this day. "

The pleadings as is well-known must be construed reasonably. The
E contention of the parties in their pleadings must be culled out from reading
the same as a whole. Different considerations on construction of pleadings
may arise between pleadings in the mufossil court and pleadings in the original
side of the High Court.

F So read, the plaintiffs in its plaint merely ascribed that he continued to
be in possession of the tenanted premises after the oral agreement of sale was
entered into by and between the parties pursuant to or in furtherance thereof.
It has not been and could not have been the contention of the Appellant that
he has derived title as a vendee in respect of the premises in question. Such
a plea, in view of Section 54 of the Transfer of Property Act, was not
G available. He at best could raise a claim of possession of the said premises
in part performance of contract as envisaged under Section 53-A thereof.

A suit for eviction under the said Act would lie before a Rent Controller
and not before a Civil Court. In terms of proviso appended to Section I 0( I)
of the said Act before the parties to pursue their remedies in a civil court a
H Rent Controller is required to arrive at a finding as regard the bona fide or
DEVA SAHA YAM (D) BY LRS. v. P. SAVITHRAMMA [S.B. SINHA, J.) 265

otherwise the claim of the tenant. A
Under the provisions of the Transfer of Property Act, a landlord can
evict his tenant only upon service of proper notice as envisaged under Section
I 06 of the Transfer of Property Act. A lease can be determined by forfeiture
inter alia when the lessee renounces his character as such by setting up a title
in a third person or by claiming title in himself. But even in such a case, the B
lessor must give notice in writing to the lessee of his intention to determine
the lease.

Distinction between clause (f) and clause (h) of Section 111 is that in
the former the right of forfeiture is exercised while the tenancy is still subsisting C
while in a case falling under clause (h) the lease is determined by a notice
to quit.

The right of the Respondents to forfeit the tenancy, if any, had also not
been exercised and no notice therefor was served upon the Appellant.

It may be true that, as was submitted by Mr. Nageshwara Rao, that the D
predecessors' in interest of the Respondents had filed a suit for eviction
before the Rent Controller on the ground of default on the part of the Appellant
in payment of rent as it appears from the statement made by PW-I that the
said suit was dismissed for default. In this appeal, the Respondents should
not be allowed to raise a contention for the first time that only in view of E
such a statement a suit for eviction was not pursued. Neither there exists any
material in this behalf nor the court below went into the said question. The
consequences resulting from a suit being dismissed for default must P-nsue
and it must be held that the question as regard the right of the Respondents
to evict their tenant on one or more of the grounds enumerated in Section I 0
of the Act must be determined by the Rent Controller in an appropriate F
proceeding.

In Sheela and Ors. v. Firm Prahlad Rai Prem Prakash, (2002] 3 SCC
375 whereupon Mr. Nageshwara Rao placed strong reliance, Lahoti, J., as the
learned Chief Justice then was, while construing the provisions of clause (c) G
of sub-section (I) of Section 12 oft.he M.P. Accommodation Control Act,
1961 observed:

"13. The law as to tenancy being determined by forfeiture by deni'al
of the lessor's title or disclaimer of the tenancy has been adopted in
India from the law of England where it originated as a principle in H
266 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A consonance with justice, equity and good conscience. On enactment
of the Transfer of Property Act, 1882, the same was incorporated into
clause (g) of Section 111. So just is the rule that it has been held
applicable even in the areas where the Transfer of Property Act does
not apply. (See: Raja Mohammad Amir Ahmad Khan v. Municipal
Board of Sitapur.) The principle of determination of tenancy by
B forfeiture consequent upon denial of the lessor's title may not be
applicable where rent control legislation intervenes and such legislation
while extending protection to tenants from eviction does not recognize
such denial or disclaimer as a ground for termination of tenancy and
eviction of tenant. However, in various rent control legislations such
c a ground is recognized and incorporated as a ground for eviction of
tenant either expressly or impliedly by bringing it within the net of
an act injurious to the interest of the landlord on account of its
mischievous content to prejudice adversely and substantially the
interest of the landlord."

D It was further observed:

"17. In our opinion, denial of landlord's title or disclaimer of tenancy
by tenant is an act which is likely to affect adversely and substantially
the interest of the landlord and hence is a ground for eviction of
tenant within the meaning of clause (c) of sub-section (I) of Section
E 12 of the M.P. Accommodation Control Act, 1961. To amount to
such denial or disclaimer, as would entail forfeiture of tenancy rights
and incur the liability to be evicted, the tenant should have renounced
his character as tenant and in clear and unequivocal terms set up title
of the landlord in himself or in a third party. A tenant bona fide
F calling upon the landlord to prove his ownership or putting the landlord
to proof of his title so as to protect himself (i.e. the tenant) or to earn
a protection made available to him by the rent control law but without
disowning his character of possession over the tenancy premises as
tenant cannot be said to have denied the title of landlord or disclaimed
the tenancy. Such an act of the tenant does not attract applicability of
G Section 12(1)(c) abovesaid. It is the intention of the tenant, as culled
out from the nature of the plea raised by him, which is determinative
of its vulnerability."

There cannot be any doubt whatsoever that the Respondents could have
maintained a proceeding for eviction before the Rent Controller on the said
H ground. Once such a proceeding could be initiated under the said Act, the
DEVA SAHAY AM (D) BY LRS. v. P. SAVITHRAMMA (S.B. SINHA, J.] 267

jurisdiction of the civil court would be held to have been ousted. A
It is true as has been submitted by Mr. Gupta that a party to a lis cannot
raise pleas which are mutually destructive but ordinarily inconsistent defences
can be raised. The Respondent No.2 to 5 were Plaintiffs in respect of their
counter-claim and, thus, it was for them to prove their case by pleading such
foundational facts as were required to obtain a decree in their favour. The B
Respondents, as noticed hereinbefore, in their written statement categorically
stated that the plaintiff had been in possession of the land as a tenant and his
possession is that of tenant even to this day and, thus, according to the
defendant the Appellant continued to be a tenant. As in the counter-claim
such a plea had been taken, the Respondents on their own showing raised C
inconsistent pleas which are said mutually destructive.

The Civil Court's jurisdiction to entertain a suit for eviction on the
ground of denial of relationship of landlord and tenant could have been
invoked only strictly in terms of the provisions of the said Act wherefor the
requirement of law, as contained in the proviso appended to Section 10(1) of D
the Act was to be complied with.

Moreover, in the counter-claim although the Respondents have claimed
mesne profits at the rate of Rs. 1500 per month from 10.11.1992 till 9.11.1995,
i.e., for a period of only 3 years only and also in future, the Trial Judge did
not discuss the evidence which might have been adduced by the parties in E
that behalf. The Division Bench of the High Court, as noticed hereinbefore,
on the other hand, examined the question on the premise that the Appellants
were in arrears of rent for the period from January, 1977 to June, 1996 and,
thus, became a defaulter. The contention of the Appellant that the Civil Court
has no jurisdiction was repelled by the High Court, as noticed hereinbefore F
without going into the aforementioned aspect of the matter.

We have noticed hereinbefore that the Respondents in the counter-
claim did not advance a plea for forfeiture of tenancy nor did they raise any
contention that the landlord has issued a notice conveying his intention to
determine the lease. G
The doctrine of approbate and reprobate is a species of estoppel.
However, there cannot be any estoppel against a statute. [See MD, Army
Welfare Housing Organisation v. Sumangal Services (P) Ltd., [2004] 9 SCC
619].
H
268 SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

A In Nagubai Ammal, (supra), whereupon strong reliance has been placed •
by Mr. Gupta, this Court observed that the maxim that a person cannot
approbate and reprobate is only one application of the doctrine of election
and its operation must be confined to the reliefs claimed in respect of the
same transaction and to the persons who are parties thereto. In that case a
plea that an earlier proceeding was not a collusive one was allowed to be
B raised holding that the said principle has no application inter a/ia on the
ground that the plaintiff therein did not obtain any advantage against the
appellants by pleading therein that the earlier proceedings were collusive nor
did they acting on those pleadings acquire rights to the suit properties. The
said decision has no application to the fact of the present case.
c Evidence of the Appellant, in this behalf, to which our attention was
drawn reads as under:

"As a tenant, I we used to pay Rs. 300/- per month till the date of
purchase of the property. The 1st defendant filed a Rent case No. 617
D of 1988 on the file of IV Addi. Rent Controller, Hyderabad after
filing the present suit. The said R.C was dismissed for default on
16.6.1992. The 1st defendant did not get it restored the said Rent
Case nor they h~ve filed any case for eviction."

The Respondents herein on the aforementioned premise cannot be
E permitted to raise a plea that the suit for eviction was not pursued before the
Rent Controller, Hyderabad only because the Appellant had raised the plea
that the Rent Controller had no jurisdiction in the matter. The matter might
have been otherwise if in the said proceedings a finding was arrived at that
the court has no jurisdiction upon acceptance of the said plea by the Appellants .
'
herein.
F
In R.N. Gosain, (supra), different types of undertakings were given by
the tenant that he would vacate the premise which having been acted upon,
it was held that having done so, the petitioner cannot be permitted to invoke
the jurisdiction of this Court under Article 136 of the Constitution of India.
G The said decision has no application to the fact of the present case.
In Arjunlal Bhatt Mall Gothani, (supra), admittedly there was an
agreement to sell the suit property to the tenant wherein it was provided that
the payment would be made in equal instalments and on failure of do so, the
sale agreement would be cancelled. In the aforementioned situation, this
H Court held that when the agreement was entered into, the old relationship of
DEVA SAHAY AM (D) BY LRS. v. P. SAVITHRAMMA [S.B. SINHA, l.] 269

landlord and tenant came to an end and the rights and liabilities of the parties A
were required to be worked out on the basis of that agreement.

Here, in this case the existence of the agreement itself was in question.
As noticed hereinbefore, the specific case of the Respondents themselves was
that the Appellants continued to be a tenant and in that view of the matter,
the said decision has no application. B
In R. Kanthimathi, (supra), whereupon reliance has been placed by the
High Court, this Court held that where a new jural relationship was created
between the parties upon non-establishment thereof, parties cannot fall back
upon the old one. Therein, the seller - landlord accepted the amount under C
the agreement and such acceptance was preceded by agreement of sale and
in the aforesaid factual backdrop it was held that the relationship of landlord
and tenant between the parties changed. Such is not the case here. The said
decision, therefore, has no application to the fact of the present case.

In Sultan, (supra), the suit was filed based on the possession of title D
wherein the tenant - Appellant denied the relationship of landlord and tenant
claiming to be the owner by adverse possession. Only in that situation it was
held that the tenant for the first time before this Court could not raise a plea
that his tenancy was protected under the Rajasthan Rent Restriction Act.

In Rekha Mukherjee v. Ashish Kumar Das and Anr., [2004] I SCC 483, E
this Court held:

"I 6. An undertaking of this nature furthermore must be construed in
favour of the person giving such undertaking. It should not be stretched
too far. A party giving an undertaking is bound thereby but by reason
thereof, the same cannot be given a meaning whereby the scope and F
extent thereof is enlarged."

It is now well-settled that a decree passed by a court having no
jurisdiction is a nullity. The Civil Court had no jurisdiction to pass a decree
for eviction only on the basis that the tenant has denied their title. The matter
might have been different if the civil court has otherwise jurisdiction to G
entertain a suit. The legislature has created new rights and liabilities for both
the landlord and tenant in terms of the provisions of the said Act and provided
a forum therefor. The jurisdiction of the civil court having been barred except
in a situation where the proviso appended to sub-section (I) of Section I0
would be attracted, the Civil Court has no jurisdiction to entertain a suit for H
\
270 SUPREME COURT REPORTS (2005] .SUPP. 3 S.C.R.

A eviction on a ground envisaged under Section 10(2)(vi) of the A.P. Building
(Lease, Rent & Eviction) Control Act. The Civil Court, thus, had no jurisdiction
to entertain the counter-claim.

In Kiran Singh and Ors. v. Chaman Paswan and Ors., [AIR 1954 SC
340], it was stated:
B
" .. .It is a fundamental principle well-established that. a decree passed
by a court without jurisdiction is a nullity, and inat its invalidity
could be set up whenever and wherever it is sought to be enforced or
relied upon, even at the stage of execution amr even in collateral
proceedings. A defect of jurisdiction, whether it is pecuniary or
c territorial, or whether it is in respect of the subject-matter of the
action, strikes at the very authority of the court to pass any decree,
and such a defect cannot be cured even by consent of parties .... "

In Bihar State Mineral Development Corporation and Anr. v. Encon
D Builders (/) (P) Ltd, (2003] 7 SCC I, this Court held:
"31...An order which lacks inherent jurisdiction would be a nullity
and, thus, the procedural law of waiver or estoppel would have no
application in such a situation."

In Dwarka Prasad Agarwal v. B.D. Agarwal, (2003] 6 SCC 230, it was
E opined:

"3 7. It is now well settled that an order passed by a court without
jurisdiction is a nullity. Any order passed or action taken pursuant
thereto or in furtherance thereof would also be nullities. In the instant
case, as the High Court did not have any jurisdiction to record the
F compromise for the reasons stated hereinbefore and in particular as
no writ was required to be issued having regard to the fact that public
law remedy could not have been resorted to, the impugned orders
must be held to be illegal and without jurisdiction and are liable to
be set aside. All orders and actions taken pursuant to or in furtherance
G thereof must also be declared wholly illegal and without jurisdiction
and consequently are liable to be set aside. They are declared as
such."

[See also Ashok Leyland Ltd v. State of T.N. and Anr., (2004] 3 SCC
1 and MD, Army Welfare Housing Organisation (supra)].
H
DEVA SAHA YAM (D) BY LRS. v. P. SAVITHRAMMA [S.B. SINHA, J.] 271

In Church of North of India v. Lavajibhai Ratanjibhai and Ors., JT A
(2005) 5 SC 202, this Court observed:

"78. The provisions of the Act and the Scheme thereof leave no
manner of doubt that the Act is a complete code in itself. It provides
for a complete machinery for a person interested in the trust to put
forward his claim before the Charity Commissioner who is competent B
to go into the question and to prefer appeal if he feels aggrieved by
any decision. The bar of jurisdiction created under Section 80 of the
Act clearly points out that a third party cannot maintain a suit so as
to avoid the rigours of the provisions of the Act. The matter, however,
would be different if the property is not a trust property in the eye of C
law. The civil court's jurisdiction may not be barred as it gives rise
to a jurisdictional question. If a property did not validly vest in a trust
or if a trust itself is not valid in law, the authorities under the Act will
have no jurisdiction to determine the said question."

The impugned judgment to the aforementioned extent, therefore, cannot D
be sustained which is set aside accordingly. The appeal is allowed in part so
far as it relates to the counter-claim made by the Respondents herein. However,
that part of the judgment whereby and whereunder the Appellant's suit for
specific performance of contract has been dismissed is upheld. No costs.

V.M. Appeal partly allowed. E