Holding

A decree for ejectment passed by a civil court in a commercial tenancy covered by the Delhi Rent Control Act, when the court lacked jurisdiction under Sections 14 and 50, is a nullity and cannot be executed, and the doctrine of prospective overruling does not save such a decree.

Summary

The appellants, Sarwan Kumar and another, were heirs of a commercial tenant in a premises governed by the Delhi Rent Control Act, 1958. The landlord, Madan Lal Aggarwal, obtained an ex‑parte decree for ejectment and mesne profits from a civil court, which the appellants challenged on the ground that the civil court lacked jurisdiction under Sections 14 and 50 of the Act. The appellants further argued that the Supreme Court's decision in Gian Devi Anand v. Jeevan Kumar, which held that commercial tenancies are heritable, should apply prospectively and not invalidate the earlier decree. The Court held that the doctrine of prospective overruling does not apply here; the interpretation in Gian Devi Anand is retrospective and the civil court had no jurisdiction, making the decree a nullity. Consequently, the decree cannot be executed and the objection to its execution was valid. The appeal was allowed, setting aside the orders of the High Court and the executing court.

Issues considered

The jurisdiction of civil courts to pass a decree for ejectment of a commercial tenant governed by the Delhi Rent Control Act, 1958, under Sections 14 and 50.
Whether the decree passed by the civil court before the Gian Devi Anand judgment is executable.
The applicability of the doctrine of prospective overruling to the Gian Devi Anand decision.
Whether a decree passed by a court lacking jurisdiction is a nullity and can be challenged at the execution stage.

Legislation cited

Code of Civil Procedures. 47
Delhi Rent Control Act, 1958s. 14, s. 50
Transfer of Property Act, 1882s. 106

Subjects

Rent ControlCommercial tenancyHeritable tenancyJurisdictionNullity of decreeProspective overrulingDelhi Rent Control ActCivil Procedure

Judgment

A SARWAN KUMAR AND ANR.
v.
MADAN LAL AGGARWAL

FEBRUARY 6, 2003

B [SYED SHAH MOHAMMED QUADRI AND ASHOK BHAN, JJ.]

Rent Control and Eviction:
-r
Delhi Rent Control Act, 1958-Sections 14 and 50-Decree for ejectment
c qua commercial tenancy by civil court-Subsequent decision ofSupreme Court
declaring commercial tenancy heritable-Thus civil court lacked jurisdiction
to pass such decree-However Executing Court and High Court holding decree
having attained.finality could not be declared nullity-On appeal, held decree ~·

passed by Court having_ no jurisdiction would be a nullity, thus inexecutable-
Objection to execution of decree can be taken whenever it is sought to be
D
enforced including stage of execution of decree or any other collateral
proceedi11gs.

Judicial Process-Interpretation oflaw-Retrospectivity of- Held, when
the Court decides that the interpretation given to a particular provision earlier ~
E was not legal, it declares the law as it stood right from the beginning - Hence
it is retrospective.

Doctrines:

Doctrine of "prospective overruling" -Applicability-Discussed
F
The suit premises was let out on monthly rent for commercial
purposes to predecessor-in-interest, of the appellants. Respondent-landlord
filed a suit for possession and mesn~ profits. Ex-parte decree was passed.
Respondent-decree holder then filed execution application. Appellant -
judgment-debtors filed objections under Section 47 CPC on the ground
G that commercial tenancy in the State of Delhi was heritable and would
devolve on the legal heirs under ordinary law of succession in view of the
law declared by this Court in Gian Devi Anand's case* and, therefore, civil
court lacked the inherent jurisdiction to pass such a decree; and that after -..
the death of the statutory tenant the possession of the judgment-debtors
did not become unlawful and illegal and they continued to have estate in
H 918
SARWANKUMARv.M.L.AGGARWAL 919

the tenanted premises. Executing Court overruled the objections holding A
that it could not go beyond the decree which had obtained finality and
also could not refuse to execute the decree passed by civil court only
because subsequently this Court in Gian Devi Anand"s case held that
commercial tenancy was heritable. Aggrieved appellants filed a writ
petition. High Court upheld the order of the executing court. Hence the B
present appeal.

Appellant contended that this Court does not legislate and only
interprets the law and when a particular provision is interpreted then it
in effect declares the law as it is stood from the beginning as per its decision
and it would be deemed as if that was the law; that it is open to the Court C
to protect the earlier decision to make the rule applicable prospectively
and save the decisions which have already become final or have been given
effect to; and that in the absence of any specific observations to the effect
that the law declared in Gian Devi Anand's case would be prospective in
operation and would not apply to the decrees already passed by the civil
courts, it cannot be held that the rule laid down in Gian Devi Anand's case D
would not apply to the decrees which had been passed by the civil court
having no jurisdiction to do so.

- Respondent contended that Gian Devi Anand's case would be
prospective in application and would not be applicable to the decree which
was passed prior to the judgment in Gian Devi Anand's case.

Allowing the appeal, the Court
E

HELD: I.I The doctrine of "prospective overruling" was initially
made applicable to the matters arising under the Constitution but it is
understood the same has been made applicable to the matters arising under F
the statutes as well. Under the doctrine of "prospective overruling" the
law declared by the Court applies to the cases arising in future only and
its applicability to the cases which have attained finality is saved because
the repeal would otherwise work hardship to those who had trusted to its
existence. Invocation of doctrine of "prospective overruling" is left to the G
discretion of the court to mould with the justice of the cause or the matter
before the court. This Court while deciding Gian Devi Anand's case did
not hold that the law declared by it would be prospective in operation. It
did not lay down any new law but only interpreted the existing law which
was in force. When the Court decides that the interpretation given to a
particular provision earlier was not legal, it declares the law as it stood H
920 SUPREME COURT REPORTS [2003) I S.C.R.

A right from the beginning as per its decision. In Gian Devi Anand's case
the interpretat~on given by the High Court that commercial tenancies were
not heritable was overruled being erroneous. Interpretation given by the
High Court was not legal. The interpretation given by this Court declaring
that the commercial tenancies are heritable would be the law as it stood
from the beginning as per the interpretation put by this Court. It would
B be deemed that the law was never otherwise. Jurisdiction of the civil court
has not been taken away by the interpretation given by this Court. This
Court declared that civil court had no jurisdiction to pass such a decree.
It was not a question of taking away the jurisdiction; it was the declaration
of law by this Court to that effect. The civil court assumed the jurisdiction
C on the basis of the interpretation given by the High Court in Gian Devi
Anand's case which was set aside by this Court.
1928-F, G, H; 929-A, B; 932-C, D, E)

1.2. In the instant case, because of the operation of Section 14 of the
Delhi Rent Control Act, 1958, the only authority to pass a decree for
D ejectment of the tenanted premises is the Rent Controller appointed under
the Act and Section 50 of the Act specifically bars the jurisdiction of the
civil court to entertain any suit or proceeding in so far as it relates to the
eviction of any tenant from the premises which were covered by the Delhi ·
Rent Control Act. The civil court lacked the inherent jurisdiction to take
E cognizance of the cause and to pass a decree. Challenge to such a decree
on the ground of nullity could be raised at any later stage including the
execution proceedings. Tenancy of the building was governed by a special
Act and, therefore, the decree passed by the civil court was a nullity and,
therefore, inexecutable. The executing court erred in holding that
judgment-debtors could not raise the objection to the executability of the
F · decree being nullity having been passed by a court lacking inherent
jurisdiction to do so which was upheld by High Court. Thus the order
passed by the High Court as well as the executing court are set aside. The
jurisdiction of the civil court to pass the decree for ejectment was barred.
Therefore, a decree passed by a court having no jurisdiction over the
G subject matter would be a nullity and the judgment-debtor can object to
the execution of such a decree being a nullity and non-est. Its invalidity
can be set up whenever it is sought to be enforced including the stage of
execution of the decree or any other collateral proceedings. Being
conscious of the fact that it would work a great hardship on the
respondent-decree holder who would not be able to reap the benefit of
H the decree passed in his favour having won at all the stages but the vagaries
SAR WAN KUMAR v. M.L. AGGARWAL fASHOK BHAN. J.] 921

of law cannot be helped. Thus, the decree obtained by the decree-holder A
cannot be executed being a nullity and non-est.
(931-E, F, G; 932-F, G, H; 933-AI

Gian Devi Anundv. Jeevan Kumar, (19851 Supp. I SCR I*; Gian Dc'l•i
Anandv. Jeevan Kumar, 11980117 01..T 197; Bharmappa Nemanna Kawa/e
and Anr. v. Dhondi Bhima Patil and Ors., (19961 8 SCC 243; Dr. Suresh B
Chandra Verma and Ors. v. The Chancellor. Nagpur University and Ors.,
119901 4 SCC 55; lily Thomas and Ors. v. Union of India and Ors., 12000]
6 SCC 224; Sar/a Mudgal (Smt.) President Ka/yani and Ors. v. Union of
India and Ors., 11995] 3 SCC 635; Go/ak Nuth v. State of Punjab, AIR
(1967( SC 1643; Sushi/ Kumar Mehta v. Govind Ram Bahar. 119901 I SCC C
193 and Urban Improvement Trust v. Goku/ Narain, 119961 4 SCC 178,
referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. I 058 of 2003.

From the Judgment and Order dated 17.9.200 I in CM 642/2000 of the D
High Court of Delhi at New Delhi.

-
M.L. Verma, Sudhir Nandrajog and Virendra Rawat for the Appellants.

S.K. Mishra, K.K. Pathania, Shail Kumar Dwivedi and P. Sengupta for
the Res~ondent.
E
The Order of the Court was delivered by

BHAN, J. Leave granted.

The short point which falls for determination in this appeal is : whether
a decree for ejectment passed by a civil court qua a commercial tenancy in F
the State of Delhi before the declaration of law by the Supreme Court in Gian
Devi Anand v. Jeevan Kumar, [1985] Suppl. I SCR I, that such a tenancy
is heritable, is executable or the judgment-debtors can successfully object to
the execution of the decree on the ground that same was passed by a court
lacking inherent jurisdiction and therefore inexecutable? G
Property No. 212/IX, Chawri Bazar Delhi, was owned by Smt. Sarla
Devi, wife of the respondent-landlord (hereinafter referred to as "the decree-
holder"). She let out the suit premises in 1969 at a monthly rent of Rs. 75
for commercial purposes to late Shri Amar Nath, predecessor-in-interest, of
the appellants (hereinafter referred to as "the judgment-debtors"). Smt. Sarla H
922 SUPREME COURT REPORTS [2003] I S.C.R.

A Devi died on 28th January, I 980. She. had executed a will dated 25th April,
1979 in favour of the decree-holder. The Decree-holder obtained the letters
of adtninistration by filing a probate case No. 41 of 1980. By virtue of the
probate given in his favour the decree-holder became the owner of the suit
premises.

B The decree-holder served a notice to quit under Section 106 of the
Transfer of Property Act, 1882 on late Shri Amar Nath. Amar Nath in response
a
to the notice to quit stated that he was not tenant in his personal capacity
and the tenant in the tenanted premises was a partnership firm M/s Pelican
Paper and Stationary Mart in which he was one of the partners. Amar Nath
C expired <:m 27th January, 1982. The decree-holder filed a suit for possession
and mesne profits against the judgment-debtors in the court of Districdudge,
D.:!hi stating therein that Amar Nath was the tenant of the suit premises in
his individual capacity. It was alleged that the tenancy in favour of the
judgment-debtors being the legal heirs of the original tenant "':.as not heritable.
Judgment-debtors were not served personally. Service on them was affected
D through publication in the newspaper in February, 1985. An ex-parte decree
of possession/recovery of mesne profits was passed against them. Civil Court
recorded a finding that Amar Nath after the termination of tenancy became
the statutory tenant and on his death the tenancy came to an end and
accordingly a decree for possession of the suit premises along with the arrears
E of rent of damages was passed.

Thereafter, on I st July, 1985 the decree-holder filed the execution
application. On 21st August, 1986 judgment-debtors filed an application under
Order 9 Rule 13 for setting aside the ex-parte decree which was dismissed
by the trial court on 25th January, 1993. Judgment-debtors filed a regular
F first appeal in the High Court against the order of the trial Court. On 26th
July, I 995, the High Court stayed the proceedings in the execution petition.
On 7th September, 1998 the appeal filed by the judgment-debtors was
dismissed by the High Court. The judgment-debtors thereafter filed Special
leave Petition (Civil) No. 20667 of 1998. Same was dismissed leaving it open
G to the judgment-debtors to raise the question regarding the executability of
the decree before the appropriate forum. The following order was passed.

"Learned counsel appearing for the petitioners urged that since the
petitioners are protected tenants, neither any decree for eviction can
be passed nor can such decree be executed against them. We are not
H inclined to go into this question as it is not the subject matter of the
SAR WAN KUMAR v. M.L.AGGARWAL [ASHOK BHAN, J.) 923

order under appeal. The special leave petition is dismissed. It is open A
to the petitioners to raise this ground before the appropriate forum, if
available to them under law."

Soon after the dismissal of the special leave petition the judgment-
debtors filed regular first appeal No. 39 of 2000 in the High Court against
the original decree dated 2nd April, 1985 passed by the civil court along with B
an application for condonation of delay of almost 15 years in filing the
appeal. Interlocutory application for condonation of delay was rejected and
consequently the regular first appeal No. 39 of 2000 was dismissed on 24th
January, 2000 being barred by time.
c
After the dismissal of the special leave petition by this Court the
execution proceedings revived. The judgment-debtors filed its objections under
Section 4 7 of the Code of Civil Procedure (CPC) objecting tC> the execution
of the decree, inter alia, on the ground that commercial tenancy in the State
of Delhi was heritable in view of the law declared by this Court in the case
of Gian Devi Anand's case (supra) and therefore the civil court lacked the D
inherent jurisdiction to pass such a decree. After the death of the statutory
tenant the possession of the judgment-debtors did not become unlawful and
iliegal. They continued to have estate in the tenanted premises which were
heritable and the jurisdiction of the civil court to pass an order of ejectment
was barred under Section 50 of the Delhi Rent Control Act, 1958 (hereinafter E
referred to as "the Act"). Under the Act tenancy rights of commercial premises
which were heritable would devolve on the legal heirs under ordinary law of
succession.

Executing Court over-ruled the objections filed by the judgment-debtors
holding that the executing court could not go beyond the decree which had F
obtained finality. The executing court could not refuse to execute the decree
passed by civil court only because subsequently Supreme Court in Gian Devi
Anand's case (supra) held that the commercial tenancy was heritable.
Appellants being aggrieved filed a petition under Article 227 of the
Constitution oflndia against the dismissal of their objections to the execution G
of the decree. High Court took the sanie view regarding the applicability of
the law declared by this Court in Gian Devi Anand's case (supra) and relying
'1 upon the decision of this Court in Bharmappa Nemanna Kawa/e and Anr. v.
Dhondi Bhima Patil and Ors., [1996] 8 SCC 243. The High Court held as
under:
H
924 SUPREME COURT REPORTS [2003] I S.C.R.

A " ...... In such matters, the doctrine of prospective/retrospective
overruling shall have to yield place to the doctrine of res judicata and
whenever a matter has been finally decided the decree could not be
declared to be nullity simply because by a subsequent judgment it
was clarified that the civil court had no jurisdiction and the matter
should have been tried by the Rent Controller."
B
Delhi High Court in Gian Devi Anand v. Jeevan Kumar case reported
in 1980 (17) DLT 197, which was in appeal before the Supreme Court in
Gian Devi Anand's case (supra) took the view that commercial tenancy was
not heritable and therefore on the death of the original tenant the contractual
C tenancy comes to an end and the protection afforded to a statutory tenant
under the Rent Act is not available to the heirs and legal representatives of
the statutory tenant. In the appeal preferred against the judgment of Delhi
High Court, a Constitution Bench of this Court overruled the view taken by
the High Court and after referring to the relevant provisions of the Delhi Rent
Control Act, 195 8 extensively before and after its amendment by Act 18 of
D 1976 took the view:

"Accordingly, we hold that if the Rent Act in question defines a
tenant in substance to mean a tenant who continues to remain in
possession even after the tennination of the contractual tenancy till a
E decree for eviction against him is passed, the tenant even after the
detennination _of the tenancy continues to have an estate or interest
in the tenanted premises and the tenancy rights both in respect of
residential premises and commercial premises are heritable. The heirs
of the deceased tenant in the absence of any provision in the Rent Act
to the contrary will step into the position of the deceased tenant and
F all the rights and obligations of the deceased tenant including the
41L. <

protection afforded to the deceased tenant under the Act will devolve
on the heirs of the deceased tenant ...... "

On the question as to who would inherent the tenancy right, it was
G observed:

" ..... .In the absence of any provision regulating the right of inheritance,
and the manner and extent thereof and in the absence of any condition
being stipulated with regard to the devolution of tenancy rights on the
heirs on the death of the tenant, the devolution of tenancy rights must
H necessarily be in accordance with the ordinary law of succession."
SAR WAN KUMAR v. ML AGGARWAL [ASHOK BHAN. J.) 925

In the same judgment this Court held that the landlord can seek the eviction A
of the tenants of the properties which were covered by the Rent Act only on
the grounds specified in the Rent Act.

It is not in dispute before us that to a premises to which the Rent Act
applies, eviction can only be ordered by the authorities/rent controller B
constituted under the Rent Act and the civil courts have no jurisdiction to
entertain suits for eviction of the tenants from the premises to which the Rent
Act applies. Further, it is not in dispute that the owners of tenanted premises
whether residential or commercial, is permitted by the Rent Controller to
seek eviction of the tenant only on the grounds specified in the Rent Act.
Counsel for the respondent-decree holder did not also dispute that after the C
declaration of the law by this Court in Gian Devi Anand's case (supra)
Qudgment was delivered on 1st May, 1985) any decree passed by the civil
- ;:,
court would be non-est having been passed by a court lacking inherent
jurisdiction. But according to him to the decrees passed prior to the declaration
of the law by this Court in Gian Devi Anand's case (supra) this rule would D
not apply. According to him such decrees are valid and lawful having been
passed by the court of competent jurisdiction at the time of passing of the
decree and therefore capable of being executed. The decrees passed prior to
the declaration of law in Gian Devi Anand's case (supra) did not cease to be
operative and in executable in view of the law laid down in that case. In other
words, contention is that Gian Devi Anand's case (supra) would be prospective E
in application and would not be applicable to the decree which was passed
prior to the judgment of the Supreme Court in Gian Devi Anand's Clise
(supra). As against this counsel for the appellant relying upon the decision of
this Court in Dr. Suresh Chandra Verma and Ors. v. The Chancellor, Nagpur
University and Ors.• [1990] 4 SCC 55, and lily Thomas and Ors. v . .Union p
of India and Ors.• [2000] 6 SCC 224, contended that this Court does not
legislate and only interprets the law and when a particular provision is
interpreted then it in effect declares the law as it is stood from the beginning
as per its decision and it would be deemed as if that was the law. It is open
to the Court to protect the earlier decision to make the rule applicable
prospectively and save the decisions which have already become final or G
have been given effect to. In the absence of any specific observations to the
effect that the law declared in Gian Devi Anand's case (supra) would be
prospective in operation and would not apply to the decrees already passed
by the civil courts, it cannot be held that the rule laid down in Gian Devi
Anand'.• case (supra) would not apply to the decrees which had been passed H
926 SUPREME COURT REPORTS r2003] I S.C.R.

A by the civil court hP:ving no jurisdiction to do so. In Dr. Suresh Chandra
Verma and Ors. (supra) this Court held:

"The second contention need not detain us long. It is based primarily
on the provisions of Section 57(5) of the Act. The contention is that
since the provisions of that section give power to the Chancellor to
B terminate the services of a teacher only if he is satisfied that the
appointment "was not in accordance with the law at that time in
· force" and since the law at that time in force, viz. On March 30, 1985
when the appellants were appointed, was the law as laid down in
Bhakre case which was decided on December 7, 1984, the termination
c of the appellants is beyond the powers of the Chancellor. The argument
can only be described as nave. It is unnecessary to point out that
when the court decides that the interpretati.on of a particular provision
as given earlier was not legal, it in effect declares that the law as it
stood from the beginning was as per its decision, and that it was
never the law othel"Wise. This being the case, since the Full Bench
D and now this Court has taken the view that the interpretation placed
on the provisions of law by the Division Bench in Bhakre case was
erroneous, it will have to be held that the appointments made by the
University on March 30, 1985 pursuant to the law laid down in Bhakre
case were not according to law. Hence, the termination of the services
E of the appellants were in compliance with the provisions of Section
57(5) of the Act."

In Sar/a Mudgal (Smt.) President, Kalyani and Ors. v. Union of India
and Ors., [1995) 3 SCC 635, this Court considered the validity of the second
marriage of a Hindu husband after conversion to Islam without having the
F first marriage dissolved under the law. It was held that such a marriage would
be void in terms of the provisions of Section 494, IPC and the husband would
be guilty of the offence under Section 494, IPC. It was held:

"Answering the questions posed by us in the beginning of the
judgment, we hold that the second marriage of a Hindu husband after
G
conversion to Islam, without having his first marriage dissolved under
law, would be invalid. The second marriage would be void in terms
of the provisions of Section 494 !PC and the apostate-husband would
be guilty of the offence under Section 494 IPC."

H In lily Thomas and Ors. Case (supra) while rejecting the contention
SAR WAN KUMAR v. M.L. AGGARWAL [ASHOK BHAN. J.] 927

that the law declared in Sar/a Mudga/'s case (supra) could not be applied to A
persons who had solemnised marriages in violation of the mandate of law
prior to the date of the judgment. this court held:

··we are not impressed by the arguments to accept the contention that
the law declared in Sar/a Mudgal case cannot be applied to persons
\Vho have solemnised marriages in violation of the mandate of Ja,v B
prior to the date of judgment. This Court had not laid down any new
law but only interpreted the existing law which was in force. It is a
settled principle that the interpretation of a provision of law relates
back to the date of the law itself and cannot be prospective from the
date of the judgment because concededly the court does not legislate
but only gives an interpretation to an existing law. We do not agree
c
..:~ with the arguments that the second marriage by a convert male Muslim
has been made an offence only by judicial pronouncement. The
judgment has only interpreted the existing Jaw after taking into
consideration various aspects argued at length before the Bench which
pronounced the judgment. The review petition alleging violation of D
Article 20(1) of the Constitution is without any substance and is
liable to be dismissed on this ground alone."

Invocation of the doctrine of prospective overruling relying upon
Bharmappa Nemanna Kawale 's case (supra) by the High Court is misplaced.
In Bharmappa Nemanna Kawale 's case (supra) civil court passed a decree
E
for eviction against the tenant holding that he was not a tenant which decree
became final. When the plea of jural relationship of landlord and tenant was
negatived by the executing court the landlord filed a writ petition in the High
Court i.n which the High Court directed the executing court to go into that
question. On these facts this Court over-turning the decision of the High F
Court held:

"Shri Bhasme, the learned counsel for the respondents, contended
that in view of the specific language employed in Section 85-A of the
Bombay Tenancy and Agricultural Lands Act, 1948 (67 of 1948) the
only competent authority that has to go into the question is the revenue G
authority under the Act and the civil court has no jurisdiction to go
II. • into the question whether the appellant is a tenant or not. Therefore,
the High Court was right in directing the executing court to go into
the question. It is rather unfortunate that the respondent has allowed
the decree holding that he is not a tenant to become final. Having H
928 SUPREME COURT REPORTS r2003} 1 S.C.R.

A allowed it to become final, it is not open to hirit to contend that he
is still a tenant under die Act and therefore the decree is a nullity.
Under those circumstances, the executing court was right in refusing
to entertain the objection for executing the decree. The High Court
was not justified, in the circumstances. in directing the executing
court to consider the objection."
B
This Court neither considered the doctrine of prospective overruling nor did '( ..
it go into the question of executability of a decree passed by a court having
no jurisdiction. This court overruled the view taken by the High Court because
the tenant let the earlier civil court decree to the effect that he was· not a
C tenant became final. The decree passed by civil court under the circumstances
was perfectly valid. Question of jural relationship of landlord and tenant
could not be gone into by the executing court afresh. It was a short judgment
and no other point was considered by this Court in the said judgment.

For the first time this Court in Go/ak Nath v. State of Punjab, AIR
D (1967) SC 1643 accepted the doctrine of "prospective overruling". It was
held:

"As this Court for the first time has been called upon to apply the
doctrine evolved in a different country under different circumstances',
we would like to move warily in the beginning. We. would lay <iuwn
E the following propositions: (I) The doctrine of prospective overruling
can be invoked only in matters arising under our Constitution; (2) it
can he applied only by the highest court of the country, i.e., the
Supreme Court as it has the constitutional jurisdiction to declare law
binding on all the courts in India; (3) the scope of the retroactive
F operation of the law declared by the Supreme Court superseding its
"earlier. decisions" is left to its discretion to be moulded in accordance
with the justice of the cause or matter before it."

The doctrine of "prospective overruling" was initially made applicable to the
matters arising under the Constitution but we understand the same has since
G been made applicable to the matters arising under the statutes as well. Under
the doctrin~ of"prospective overruling" the law declared by the Court applies .,.:
to the cases arising in future only and its applicability to the cases which have
attained finality is saved because the repeal would otherwise work hardship •
to those who had trusted to its existence. Invocation of doctrine of "prospective
H overruling" is left to the discretion of the court to mould with the justice of
SAR WAN KUMAR v. M.L. AGGARWAL IASHOK BHAN. I.) 929

the cause or the matter before the court. This Court while deciding the Gian A
Devi Anand's case (supra) did not hold that the law declared by it would be
prospective in operation. It was not for the High Court to say that the law laid
down by this Court in Gian Devi Anand's case (supra) would be prospective
in operation. If this is to be accepted then conflicting rules can supposedly
be laid down by different High Courts regarding the applicability of the law B
laid down by this Court in Gian Devi Anand's case (supra) or any other case.
"). Such a situation cannot be permitted to arise. In the absence of any direction
by this Court that the rule laid down by this Court would be prospective in
operation the finding recorded by the High Court that the rule laid down in
Gian Devi Anand's case (supra) by this Court would be applicable to the
cases arising from the date of the judgment of this Court cannot be accepted C
being erroneous.

This Court in Sushi/ Kumar Mehta v. Govind Ram Bohra, (1990] I
sec 193 after referring to and exhaustively dealing with and following various
judgments of this Court held that a decree passed by a civil court in a rent
matter, the jurisdiction of which was barred by the Haryana Urban (Control D
of Rent & Eviction) Act, 1973, having been passed by a court lacking inherent
jurisdiction to entertain the suit for ejectment was a nullity and the judgment·
debtors successfully could object to the execution of the said decree being a
nullity.

The facts of the said case were almost identical to the facts of the E
present case. The facts which led to the decision in that case were: landlord
filed a suit in the court of Senior Sub Judge for ejectment and recovery of
arrears of rent and damages for use and occupation of a shop at Gurgaon, let
out to the tenant. An ex parte decree was passed. Issue regarding jurisdiction
of the civil court was framed and the same was decided against the tenant. F
Application under Order 9 Rule 13 to· set aside the ex parte decree was
dismissed. It was confirmed on appeal. Revision was dismissed by the High
Court. When the landlord filed the application for execution of the decree to
obtain possession, the tenant objected under section 47 of CPC contending
that the decree of the civil court was a nullity as the premises in question G
were governed by the Rent Act. The Controller under the Act was the only
competent forum for claims of ejectment on fulfillment of the conditions
+ enumerated in the Rent Act. That the civil court was divested of jurisdiction
to take cognizance and pass a decree for ejectment of the tenant. The objection
was overruled by the executing court and further the revision filed by the
tenant was dismissed by the High Court. Simultaneously, he also tiled a writ H
930 SUPREME COURT REPORTS [2003) I S.C.R.

A petition under Article 227 which was also dismissed. Against the dismissal
of the writ petition under Article 227 the appeal was filed in this Court. It
may be mentioned that a issue regarding the jurisdiction of the civil court to
try a suit for ejectment was framed and decided in favour of the landlord in
the civil suit. Tenant had also been divested of the possession in execution
B of the decree passed by the civil court. This Court after exhaustively referring
to the number of previous judgments of this court held that to a building let
out and governed under the Rent Act the only competent authority to pass the ~.
decree for ejectment was the Rent Controller constituted under the Rent Act
and the civil court lacked the inherent jurisdiction to take cognizance of the
cause and pass a decree of ejectment therein. It was further held that objection
C to the execution of the decree being a nullity having been passed by a court
lacking inherent jurisdiction could be raised in execution proceedings and the
finding recorded in decree that the civil court had the jurisdiction would not
operate as res judicata. It was held:

"Thus it is settled law that normally a decree passed by a court of
D competent jurisdiction, after adjudication on merits of the rights of
the parties, operates as res judicata in a subsequent suit or proceedings
and binds the parties or the persons claiming right, title or interest
from the parties. Its validity should be assailed only in an appeal or
.revision as the case may be. In subsequent proceedings its validity
cannot be questioned. A decree passed by a court without jurisdiction
E
over the subject matter or on other grounds which goes to the root
of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram
non jz~dice. A decree passed by such a court is a nullity and is nonest.
Its invalidity can be set up whenever it is sought to be enforced or is
acted upon as a foundation for a right, even at the stage of execution
F or in collateral proceedings. The defect ofjurisdiction strikes at the
authority of the court to pass a decree which cannot be cured by
consent or waiver of the party.." [Emphasis supplied] {Para 26}

In para 27, it was further observed:

G "In the light of this position in law the question for determination is
whether the impugned decree of the civil court can be assailed by the
appellant in execution. It is already held that it is the Controller
under the Act that has exclusive jurisdiction to order ejectment of a
tenant from a building in the urban area leased out by the landlord.
H Thereby the civil court inherently lacks jurisdiction to entertain the
SAR WAN KUMAR v. M.L. AGGARWAL [ASHOK BHAN. J.] 931

suit and pass a decree of ejectment. Therefore, though the decree was A
passed and the jurisdiction of the court was gone into in issue Nos.
4 and 5 at the e.t parte trial, the decree thereunder is a nullity, and
does not bind the appella/1/. Ther~fore. it does not operate as a res
judicata. The courts below have commi11ed grave error of law in
holding that the decree in the suit operated as res judicata and the B
appellant cannot raise the same point once again at the execution."

[Emphasis supplied]

Appeal was allowed. Since the possession had already been taken in
execution of the decree the Court ordered restoration of the possession to the
tenant and thus observed: C
"This Court would relieve the party from injustice in exercise of
power under Article 136 of the Constitution when this Court noticed
grave miscarriage of justice. It is always open to the appellant to take
aid of Section 14.4 CPC for restitution. Therefore, merely because the D
decree has been executed, on the facts when we find that decree is a
nullity, we cannot decline to exercise our power under Article 136 to
set at nought illegal orders under a decree of nullity. The appeal is
accordingly allowed. But in the circumstances parties are directed to
bear their own costs."
E
This decision was later on followed by this Court in Urban Improvement
Trust v. Gokul Narain, [1996] 4 SCC 178. We need not refer to the earlier
decisions of this Court taking the same view which have been referred to and
find mentioned in Sushi/ Kumar Mehta 's case (supra).

In the present case because of the operation of Section 14 of the Act F
the only authority to pass a decree for ejectment of the tenanted premises is
the Rent Controller appointed under the Act and Section 50 of the Act
specifically bars the jurisdiction of the civil court to entertain any suit or
proceeding in so far as it relates to the eviction of any tenant from the
premises which· were covered by the Delhi Rent Control Act. The civil court
lacked the inherent jurisdiction to take cognizance of the cause and to pass G
a decree. Challenge to such a decree on the ground of nullity could be raised
at any later stage including the execution proceedings. Tenancy of the building
was governed by a special Act and therefore the decree passed by the civil
court was a nullity and therefore inexecutable. Judgment-debtors had not
filed their written statement in the civil court and no issue regarding the H
932 SUPREME COURT REPORTS [2003) I S.C.R.

A ,jurisdiction of the civil court to try the suit was fn1med. Tenant in the special
leave petition in this Court raised the contention that the eviction decree
passed by the civil court could not be executed against. them. This Coun
refused to go into that question as it was not the subject matter of the order
under appeal. It was left open to the judgment-debtors to raise this ground
B before the appropriate forum, if available to them under law. The only forum
where the judgment-debtors could raise the objection regarding the
executability of the decree was in the exe~ution proceedings which they did.
Since the jurisdiction of the civil court was barred, the decree passed by it
was a nullity and the judgment":'debtors could successfully raise objection
regarding the executability of such a decree. The executing court erred in
C holding that judgment-debtors could not raise the objection to the executability
of the decree being nullity having been passed by a court lacking inherent
jurisdiction to do so. This Court in Gian Devi Anand's case (supra) did not
lay down any new Jaw but only interpreted the existing law which was in
force. As was observed by this Court in Lily Thomas 's case (supra) the
interpretation of a provision relates back to the date of the law itself and
D cannot be prospective of the judgment. _When the court decides that the
interpretation given to a particular provision earlier was not legal, it declares
the law as it stood right from the beginning as per its decision. In Gian Devi
Anand's case (supra) the interpretation given by the Delhi High Court that
commercial tenancies were not heritable was overruled being erroneous.
E Interpretation given by the Delhi High Court was not legal. The interpretation
given by this Court declaring that the commercial tenancies heritable would
be the law as it stood from the beginning as per the interpretation put by this
Court. It would be deemed that the law was never otherwise. Jurisdiction of
the civil court has not been taken away by the interpretation given by this
Court. This Court declared that the civil court had no jurisdiction to pass such
F a decree. It was not a question of taking away the jurisdiction it was the
declaration of law by this Court to that effect. }"he civil court assumed the ·
jurisdiction on the basis of the interpretation given by the High Court in Gian
Devi Anand's case, wh!ch was set aside by this Court.

G For the reasons stated above, the appeal is accepted. The order passed
by the High Court as well as the executing court regarding the executability
of the decree passed by the civil court are set aside. It is ~eld that the · ·
jurisdiction of the civil court to pass the decree for ejectment was barred: A
decree passed by a Court having no jurisdiction over the subject matter
would be a nullity and the judgment-debtor can object to the execution of
H such a decree being a nullity and non est. Its invalidity can be set up whenever
SARWAN KUMAR v. M.L. AGGARWAL [ASHOK BHAN,J.} 933

it is sought to be enforced including the stage of execution of the decree or A
11ny other collateral proceedings. We are conscious of the fact that it would
work a great hardship on the respondent-decree holder who would not be
able to reap the benefit of the decree passed in his favour having won at all
the stages but the vagaries of law cannot be helped. Accordingly, appeal is
accepted. Orders of the High Court and the executing court are set aside. It B
is held that the decree obtained by the decree-holder cannot be executed
being a nullity and non est. The parties are directed to bear their own costs.

N.J. Apeal allowed.
·.

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