SMT. ISABELLA JOHNSONversusM.A. SUSAI

                          SMT. ISABELLA JOHNSON
                                                                                      A
                                           V.
                                    M.A. SUSAI

                                OCTOBER 9, 1990

                     [M.H. KANIA AND N.D. OJHA, JJ.]                                  B

         Rent Control and Eviction: Andhra Pradesh Rent Control Act,
    1960: Section 3-Eviction suit-Jurisdiction of Courts-Res judicata
    and Estoppel-Whether applicable.

        Civil Procedure Code, 1908: Section ] ]-Jurisdiction of Courts
    -Pure question of law-Res judicata-Applicability of          ·                    c
         Evidence, Act, 1872: Section 115-Estoppel-Applicability of in
    regard to jurisdiction of Courts.

          The Respondent-landlord filed a suit under the Andhra Pradesh               o
    Rent Control Act for recovery of possession and for mesne profits. The
    appellant-defendant raised a preliminary objection that the City Civil
    Court had no jurisdiction to entertain the suit. In the two eviction
    petitions filed earlier by the appellant, the Respondent took the plea
    that since the alleged tenancy was hit by Section 3 of the A .P. Rent
    Control Act, eviction snit was not entertainable by the Rent Controller.          E

          Decreeing the suit in favour of the appellant, the trial Court held
    that it was not open to the Respondent to take such inconsistent plea
    regarding jurisdiction; that he cannot be allowed to approbate and
    reprobate and he was estopped from doing so. On appeal hy respon-
    dent, the decision was upheld by the First Appellate Court. On a second           F
    appeal preferred by the respondent, the High Court reversed the trial
    court's order.

          Aggrieved by.the decision of the High Court, the appellant prefer-
    red this appeal, by special leave, contending that the principles of Res
    Judicata and estoppel were applicable.                                            G

          Dismissing the appeal, this Court,

            HELD: .1 •.A court which has no jurisdiction in law cannot be
    conferred with the jurisdiction by applying principles of res judicata. It
    is well settled that there can be no estoppel on a pure question of law. [217F]   H


I                                        213
    214         .SUPREME COURT REPORTS                [ 1990] Supp. 2 S.C.R.

          Mahtura Prasad Bajoo Jaiswal and Ors. v. Dossibai N.B.
A   Jeejeebhoy, [1970] 3 SCR 830; Sushi! Kumar Mehta v. Gobind Ram
    Bohra (dead) thro' his Lrs., [199011SCC193; relied on.

          Avtar Singh, and Ors. v. Jagjit Singh and Anr., [1979] 4 SCC 83;
    referred to.
B
          2; In the instant case, the question of jurisdiction is a pure ques-
    tion of law. The High Court was right in its conclusions tllat in molten
    of jurisdiction to entertain the suit, doctrine of estoppel could not be
    invoked; and that the City Civil Court had no jurisdiction to entertain
    the suit, as it lay exclusively within the jurisdiction of the Rent
    Controller. [216A-B I
c
          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2771
    of 1981.

         From the Judgment and Order dated 5.2.1980 of the Andhra
D   Pradesh High Court in S.A. No. 526 of 1977.

          Jagdish K. Agarwal (N.P.) for the Appellant.

          A Sobba Rao for the Respondents ..

E         The Judgment of the Court was d~livered by
                                            .......
          KANIA, J. This is an appeal by special leave from the decision
    of a learned Single Judge of the Andhra Pradesh High Court in Second
    Appeal No. 526 of 1977.

F         As we are, with respect, in agreement with the conclusions
    arrived at by the learned Single Judge of the High Court, we pro-
    pose· to set out only the bare facts essential for the purposes of our
    judgment.

          The appellant was the plaintiff and the respondent was the
G   defendant in Suit. O.S. No. 789 of 1973 filed in the Court of the Third
    Assistant Judge, City Civil Court, Hyderabad. The appellant prayed
    for a decree for recovery of possession of the suit premises from the
    respondent and for mesne profits till the delivery of possession of the
    premises. The case of the appellant was that she was the owner of the
    suit premises and the respondent was in the occupation of the said
H   premises on payment of Rs.30 per month. The respondent had been              I
                    SMT. ISABELLA v. M.A. SUSA! [KANIA, J.l               215

     irregular in the payment of the said rent and had been a source of A
     perpetual nuisance. It was on this ground that the eviction of the
     premises was sought by the appellant. In his written state.men! the
     respondent took a preliminary objection that the City Civil Court had
     no jurisdiction to entertain the suit as the suit fell within the jurisdic-
     tion of the Rent Controller at Hyderabad. Two petitions had earlier
                                                                                 B
     been filed by the appellant before the Rent Controller for eviction of
     the respondent and the Rent Controller had rejected the same on the
     ground that the purported tenancy of the respondent was hit by section
    3 of the A.P. Rent Control Act and hence, the ·eviction suit was not
    entertainable by the Court of Rent Controller. This conclusion was
    arrived at on a plea to the said effect taken by the respondent. In the
    Court of learned Third Assistant Judge of the City Civil Court at c
    Hyderabad the respondent took up the plea that the suit fell exclu-
    sively within the jurisdiction of the Rent Controller and hence the City
    Civil Court had no jurisdiction to entertain the suit. Certain pleas were
    made regarding amendments in the law with which we are not con-
    cerned in this appeal. What is material to note for our purposes is that
    the learned Assistant Judge took the view that as the re"spondent had, D
    before the Rent Controller, taken up the plea that it was not the Rent
    Controller but the City Civil Court which had the jurisdiction to enter-
    tain the eviction petition against him, and the said plea was upheld, it
    was not open to the respondent to take up the inconsistent plea before
    the City Civil Court that it was the Rent ControHer and not the City
    Civil Court which had jurisdiction to entertain the proceedings. It was E
    held that the respondent could not be allowed to approbate and repro-
    bate and that he was estopped by way of pleading to take up an incon-
    sistent plea regarding jurisdiction.

            On the basis of this conclusion, and other conclusions with which
    we are not concerned, the suit was decreed by the learned Assistant         F
    Judge in favour of the appellant. The decision of the learned Assistant
    Judge was upheld in an appeal filed by the respondent in the Court of
    the learned Additional Chief Judge of the City Civil Court at
    Hyderabad. On a second appeal preferred by the respondent, the
    learned Single Judge of the High Court took the view that in matters of
    jurisdiction the question of estoppel does not arise. If the City Civil     G
    Court has no jurisdiction to entertain the suit, the doctrine of estoppel
    could not be invoked so as to confer jurisdiction on the Court of City
    Civjl Court. On the question of jurisdiction the learned Judge took the
    view that the City Civil Court had no jurisdiction to entertain the suit
    as it lay exclusively within the jurisdiction of the Rent Controller.
                                                                                H



'
    2i6         SUPREME COURT REPORTS                [ 1990] Supp 2 S.C.R.

         Learned counsel for the appellant submitted that the learned
A
  Judge of the High Court was in error, as the earlier decisions of the
  Rent Controller to the effect that it was the City Civil Court and not
  the Rent Controller who had the jurisdiction to entertain the suit for
  eviction filed by the appellant against the respondent, constituted res ·
  judicata between the parties on the question of jurisdiction. It was
B submitted by him that, even if that decision was wrong, the issue of
  jurisdiction was finally decided between the parties and.that decision
  was that it was the Civil Court and not the Rent Controller that had the
  jurisdiction to entertain and dispose of the suit for eviction. He further
  submitted that the respondent could not be permitted to take inconsis-
  tent pleas as he was barred by the principles of estoppel from taking up
  the plea before the Civil Court that it was the Rent Controller who had
c the exclusive jurisdiction to e"'lertain the suit. He placed reliance on a
  decision rendered by a Division Bench comprising two learned Judges
  of this Court in Avtar Singh and Others v. Jagjit Singh and Another,
  [ 1979] 4 SCC 83 which took the view that the Civil Court's decision
  regarding lack <?f jurisdiction will operate as res judicata in a subse-
D quent suit. In that case the Civil Court declined jurisdiction. The Civil
  Court took the view that it had no jurisdiction to try the suit in ques-
  tion and directed the return of the plaint for representation to the
  appropriate Revenue Court. When the claim was filed in the Revenue
  Court, the Court took the view that it had no jurisdiction to try the
  claim. Thereupon, a suit was again instituted in the Civil Court for the
E same relief. This suit failed throughout on the ground of res judicata.
  The High Court affirmed the dismissal and the Division Bench of this
  Court took the view that the High Court was right in taking the view
  that the principles of res judicata were applicable to the issue of jurisdic-
  tion. Jn our opinion, the contention of learned counsel for the appel-
  lant cannot be upheld. We find that in Mathura Prasad Bajoo Jaiswa/
F and Others v. l).ossibai N.B. Jeejeebhoy, I 1970] 3 SCR 830 at p. 836 a
  Bench comprising three learned Judges of this Court has taken the
  view that a decision on the question of jurisdiction of the court or a
  pure question of law unrelated to the right of the parties to a previous
  suit, is not res judicata in the subsequent suit. The Court observed:
                     '
                 "It is true that in determining the application of the rule of
G
                 res judicata the Court is not concerned with the correctness
                 or otherwise of the earlier judgment. The matter in issue, if
                 it is one purely of fact, decided in the earlier proceeding by
                 a competent court must in a subsequent litigation between
                 the same parties be regarded as finally decided and cannot
H                be reopened. A mixed question of law and fact determined
                                                                                  I
                   SMT. ISABELLA v. M.A. SUSA! [KANIA, J.]                217

                in the earlier proceeding between the same parties may A
                not, for the same reason, be questioned in a subsequent
                proceeding between the same parties. But, where the deci-
                sion is on a question of law, i.e. the interpretation of a
                statute, it will be res judicata in a subsequent proceeding
                between the same parties where the cause of action is the
                same, for the expression ''the matter iii issue" in s.·   11 of B
                the Code of Civil Procedure means the right litigated bet-
                ween the parties, i.e. the facts on which the right is claimed
                or denied. and the law applicable to the determination of.
                that issue. Where, however, the question is 'one purely of
                law and it relates to the jurisdiction of the Court or a deci-
                sion of the Court sanctioning something which is illegal, by C
                resort to the rule of· res judicata a party affected by the
                decision will not be precluded from challenging the validity
                of that order under the rule of res judicata, for a rule of
                procedure cannot supersede the law of the land."

          The same view bas been reiterated by a Bench comprising three D
    learned Judges of this Court in Sushi/ Kumar Mehta v. Gobind Ram
     Bohra (dead) through his Lrs., [1990) I SCC 193. We find that the
    decision of three learned Judges of this Court in Mathura Prasad Bajoo
    Jaiswal and Others v. Dossibai N.S. Jeejeebhoy, bas not been noticed at
    all by the Division Bench comprising two-learned Judges of this Court
    which delivered the judgment in A vtar Singh and Others v. Jagjit Singh E
    and Another, and hence, to the extent, that the judgment in Avtar
    Singh's case takes the view that the principle of res judicata·is applic-
    able to an erroneous decision on jurisdiction, it cannot be regarded as
    good law. In our opinion a court which has no jurisdiction in law
    cannot be conferred with the jurisdiction by applying principles of res
    judicata. It is well settled that there can be no estoppel on a pure F
    question of Jaw and in this case the question of jurisdiction is a pure
    question of Jaw.

          In our view, therefore, the High Court was, with respect, right in
    its conclusions arrived at and the appeal must be dismissed.
                                                                                G
          The appeal is dismissed. Looking to the facts and circumstances
    of the case there will be no order as to costs.

    G.N.                                                 Appeal dismissed.


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