SUSHIL KUMAR METHAversusGOBIND RAM BOHRA

                      SUSHIL KUMAR METHA
                                                                               A
                               v.
                       GOBIND RAM BOHRA

                         NOVEMBER 10, 1989

           [RANGANATH MISRA, P.B. SAWANT AND                                   B
                  K. RAMASWAMY, JJ.]

      Haryana Urban Rent Control Act, 1973-Section 13-Controller
has exclusive jurisdiction to order eviction Civil Court inherently lacks
jurisdiction to entertain suit for eviction.

     Code of Civil Procedure 1908: Section II and 47 Order 9, Rule             c
13-Jurisdiction determination of-Court without jurisdiction passing
decree-nullity \and non est-Does not operate as res judicata.

       The respondent had filed a suit before the Senior Sub Judge,
against the appellant for ejectment and recovery of arrears of rent and        D
damages for use and occupation of the shop, let out to him. The suit was
decreed ex parte on October 20, 1977. The application under Order 9,
Rule 13, C.P.C. to set aside the ex parte decree was dismissed on
January IO, 1979 and was confirmed on appeal on August 7, 1979 and
later in revision by the High Court.
                                                                               E
      When the respondent-landlord took out execution proceedings for
ejectment of the appellant-tenant, he objected under Section 47 of Code
of Civil Procedure contending that the decree passed by the civil court
was a nullity, as the premises in question was governed by the Haryana
Urban (Control of Rent and Eviction) Act 11of1973. According to him
the Controller under the Act was the competent authority regarding             F
claims for ejectment and by necessary implication, the civil Court was
divested of jurisdiction to take cognisance and pass a decree for eject-
ment. That objection was overruled and further revision to the High
Court also failed. Simultaneously the appellant had also filed a writ
petition under Art. 227 of the Constitution which was also dismissed.
Hence this appeal by the appellant-tenant by special leave.                    G

      Allowing the appeal, this Court,

       HELD: Normally a decree passed by a court of competent juris-
dicti11n after adjudication on merits of the rights of the parties, operates
as res judicata in a subsequent suit or proceedings and binds the parties      H

                                    149
    150         SUPREME COURT REPORTS                 [1989] Supp. 2 S.C.K

A   or the persons claiming right, title or interest from the parties. Its
    validity should be assailed only in an appeal or revision as tile case may
    be. In subsequent proceedings, its validity cannot be questioned. [162G]

        A decree passed by a court without jurisdiction over the subject
  matter or on other grounds which goes to the root of its exercis<' of
B jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A
  decree passed by such a court is a nullity and is non est. 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 or in collateral
  proceedings. The defect of jurisdiction strikes at the authority of the
  court to pass a decre.e which cannot be cured by consent or waiver of the
C party. [162H; 163AJ

        (See Kiran Singh & Ors. v. Chaman Paswan & Ors., [1955] 1,
  SCR 117: Ferozi Lal Jain v. Man Mal & Anr .. AIR 1979 SC 794:
  Bahadur Singh v. Muni Subrat Dass, [1969] 2 SCR 432; Smt.
  Kaushalya Devi & Ors. v. K.L. Bansal, AIR 1970 SC 838; Chandrika
D Misir & Anr. v. Bhaiya Lal, [1973] 2 SCC 474; Ledgard v. Bull, [1886]
  Law Report, 13 AC 134; Bartan v. Fincham, [1921] 2 K.B. Division,
  291 at 299; Peachery Property Corporation y. Robinson, ll966] 2 All
  E.R. 981, 983; Choudari Rama (dead) per L.R. Choudhary Ganapathi
  v. Qureshi Bee, [1983] 2 Andhra Law Times 133 approved;)

E         A question relating to jurisdiction of a court or interpretation of
    provisions of a statute cannot be deemed to have been lin~lly deter-
    mined by an erroneous decision of a court. Therefore the doctrine of res
    judicata does not apply to a case of decree of nullity. If the court inhe-
    rently lacks jurisdiction consent cannot confer jurisdiction. Where cer-
    tain statutory rights in a welfare legislation are created, the doctrine of
F   waiver also does not apply to a case of decree where the court Inherently
    lacks jurisdiction. TI63F-G I

          (See Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai N.B. Jee-
    jeebhey, [1970] 3 SCR 830; Tarini Charan Bhattacherjee's case I.L.R.
    56, Cal. 723).                                             .
G
          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. Thereby the civil court inherently lacks juri~diction to
    entertain the suit and pass a decree of ejectment. ll64AJ

H         (See Barrachlough v. Brown, [1897] A.C. 615; Doe v. Bridges,
           S.K. MEHTA v. G.R. BOHRA [K. RAMASWAMY, J.]                 151

[1831] 1, B & Ad, 847 at 859; Premier Automobiles v. K.S. Wadke,
                                                                              A
[1976] 1SCR427.               •

      Therefore in the instant case, though the decree was passed and
the jurisdiction of the court was gone into in issue Nos. 4 and 5 at the ex
parte trial, the decree thereunder is a nullity and does not bind the
appellant. Therefore it does not operate as res judicata. The court•          B
below have committed grave error of law in holding that the decree in
the suit operated as res judicata and the appellant cannot raise the same
point once againt at the execution. [164B]

     Hari Prashad Gupta v. Jitender Kumar Kaushik, [1982] Vol. 84,
Punjab Law Reporter, 150; Sadhu Singh v. District Board, Gurdaspur
& !inr., .[19621 Punjab Law Reporter, Vol. 64, l; Vasudev Dhanjibhai
                                                                              c
Modi v. Ka1abhai Rabdul Rehman & Ors., [1970] l SCC 670; Seth
Hiralal Patni v. Sri Kali Nath, [1962] 2 SCR 747; Phool Chand Sharma
&. Ors. v. Chandra Shankar Pathak & Ors., [1963] SCR Suppl. 2 828;
Mohan/a/ Goenka v. Benoy Krishna Mukherjee & Ors., [1953] SCR 377.
                                                                              D
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4599
of 1989.

     From the Judgment and order dated 16.9.1988 of the Punjab and
Haryana High Court in Review Application 22-CII of 1988 in Civil
Revision No. 2439 of 1980.                                                    E

      S.P. Goel, G.B. Singh and K.K. Mohan for the Appellant.

      S.M. Ashri for the Respondent.

      The Judgment of the Court was delivered by                              F

      K. RAMASWAMY, J. Special leave granted.

      This appeal under Article 136 arises against the order dated
Sept. 16, 1988 of the High Court of Punjab & Haryana refusing to
review the order dated August 11, 1988 made in Civil Revision No. G
2439/80 on its file. The facts leading to the decision are that the
respondent Govind Ram, the father of the respondents/landlord laid
the suit No. 118/77 (initially numbered as O.S. No. 276/75) on the file
of Sr. Sub Judge for ejectment and recovery of arrears of rent and
damages for use and occupation of the shop in Gurgaon, let out to the
appellant/tenant. The suit was originally laid in the Court of Sub H
    152         SUPREME COURT REPORTS              [ 1989] Supp. 2 S.C.R

A Judge, Hird Class, Gurgaon, which was transferred later to the Sr. Sub
  Judge, Gurgaon, which was decreed ex-parte on October 20, 1977.
  The application under Order 9 Rule 13 C.P .C. to set aside the ex-parte
  decree was dismissed on January 10, 1979, and was confirmed on
  appeal on August 17. 1979 and in revision by the High Court on
  October 15, 1979. When the landlord laid the execution application for
B ejectment the appellant objected under section 47 of C.P .C. contend-
  ing that the decree of the Civil Court is a nullity as the premises in
  question is governed by the Haryana Urban (Control of Rent & Evic-
  tion) Act 11of1973, for short 'the Act'. The Controllerunder the Act
  is the competent forum regarding claims for ejectment on fulfilment of
  any of the conditions enumerated under Section 13 thereof. The Civil
C Court is divested of jurisdiction to take cognisance and pass a decree
  for e jectment of the appellant. That objection was overruled and on
  further revision the High Court dismissed the revision by order dated
  March 19, 1980. Simultaneously he also filed Writ Petition under Arti-
  cle 227 which was dismissed on September 30, 1988. This appeal is
  directed against that order of dismissal.
D
        The contention raised by Shri S.P. Goel, the learned Sr.
  counsel for the appellant is that by operation of Section 13 of the Act
  the only authority to pass a decree of ejectment of the appellant tenant
  is the Controller under the Act and by necessary implication the
  jurisdiction of the Civil Court is ousted. The Civil Court lacked inhe-
E rent jurisdiction to take cognisance of the cause and to pass a decree.
  The decree is thus a nullity. The challenge to a decree on the ground of
  nullity can be raised at any stage and even in execution. The courts
  below have committed manifest error of law in not considering the
  legal question in its proper perspective. The shop consists of the origi-
  nal building belonging to the landlord, but a small part thereof in the
F frontside was constructed on municipal land. Tenancy of the building
  is governed by the Special Act and, therefore, the decree of the Civil
  Court is a nullity and is inexecutable. Shri Ashri, the learned counsel
  for the respondents refuted this contention. Firstly he argued that the
  leave application is barred by limitation. Secondly, he contended that
  the appellant had raised the plea of want of jurisdiction at the trial.
G Though he remained ex-parte; the trial court considered the objection
  under issue Nos. 4 and 5 and overruled the objection. The decree
  became final; thereby the decree operates as res judicata. He also
  further contends that the Act does not apply to the building in ques-
  tion. Under Section 3, municipal land is exempted from the provisions
  of the Act and thereby the only forum to lay the action is the Civil
H Court. The Ci\'il Court having jurisdiction has validly granted the
           S.K. MEHTA v. G.R. BOHRA IK. RAMASWAMY, J.]                153

decree. The decree having been allowed to become final, it is not open
to the appellant to ask the executing court to go behind the decree          A

      The question that emerges is whether the Civil Court lacked
inherent jurisdiction to entertain the suit for ejectment of the·
appellant-tenant and the decree so passed is a nullity. The Act was
enacted with the object of controlling the increase of rent of buildings     B
and rented lands situated within the limits of urban areas and "the
eviction of the tenants therefrom". Section 2( a) defines 'building' which
means any building or a part of a building let for any purpose whether
being actually used for that purpose or not, including any land
 ............. : .......... appurtenant to such building .......... -
 ......... but does not include a room in a hotel, hostel or boarding
house. Section 2(b) defines 'Controller' as any person who is                c
appointed by the State Government to perform the functions of a
Controller under the Act. Landlord has been defined under Section
2(c) and Section 2(f) defines rented lands to mean any land let sepa-
rately for the purpose of being used principally for business or crade.
'Tenant' has been defined under Section 2(h). Section 3 authorises the       D
State Government by notification to exempt any particular building or
rented fand or any class of building or rented lands from the applica-
tion of any or all the provisions of the Act. Section 13 contains the
provisions for eviction of tenants, Sub-s. (!)thereof reads:

            "Eviction of tenants-( .1) A tenal)t in possession of a build-   E
            ing or a rented land shall not be evicted therefrom except in
            accordance with the provisions of this section."

      Thr. other provisions are not necessary. The sole ground raised
by the landlord for eviction was that the appellant had committed
default in the payment of rent and thereby had became liable for             F
ejectment. Accordingly, he issued a notice under Section 106 of the
Transfer of Property Act determining the tenancy and laid this suit.
Section 13 gives the right to the landlord to seek eviction of the tenant
for default in the payment of rent. The Act provides the protection of
continued tenancy and remedy of ejectment for breach of covenants in
the lease and other statutory grounds as provided. It provides that the      G
remedy and the forum and the decree of ejectment passed by the
Controller or the appellate authority or the reyisional authority or
confirmation thereof either in appeal or revision is final under the Act.
Thereby the exclusive jurisdiction to take cognisance of the cause of
action for ejectment of the tenant from a building or rented land
situated in urban areas is governed by the provisions of the Act and is      H
    154        SUPREME COURT REPORTS               [ 1989] Supp. 2 S.C.R.

  exclusively to be dealt with under Section 13 of the Act. By necessary
A implication the jurisdiction of the Civil Court under Section 9 of
  C.P.C. is excluded. It is undoubtedly true that open land is a part of
  the frontage of the shop and belonged to the municipality which the
  landlord had taken on lease from the Municipality. As regards the
  municipal land, the landlord was a lessee of the Municipal Committee.
B But on construction of the building covering a portion of the municipal
  land the landlord became landlord and the appellant his tenant for the
  purposes of the Act. This view was held by the full Bench of the
  Punjab and Haryana High Court in Hari Parshad Gupta, v. Jitender
  Kumar Kaushik, [1982] Vol. 84, Punjab Law Reporter, 150. We agree
  with the view. Thereby though there is a notification issued by the
  State Government exempting the lands belonging to Gurgaon Munici'.
c pality from the provisions of the Act, the building of the respondent
  does not get exempted from the provisions of the Act. It is the finding
  of the forums below that the shop in question stands mainly on the
  land of the landlord and a small portion is located on municipal land.
  Therefore, we are of the view that the building was governed by the
q provisions of the Act and the exemption accorded by the Government
  under Section 3 was not attracted to the premises. In Sadhu Singh v.
  District Board, Gurdaspur & Anr:, [1962] PunjabLaw Reporter, Vol.
  64, 1 the question was whether to the reconstructed building governed
  by the provisions of East Punjab Urban Rent Restriction Act the
  exemption under Section 3 applied. It was held to be so by the Division
E Bench. But the present facts are different.

          In Barrachlough v. Brown, [1897] A.C. 615 the House of Lords
    held that when a special statute gave a right and also provided a forum
    for adjudication of rights, remedy has to be sought only under the
    provisions of that Act and the common law court has no jurisdiction.
F
          In Doe v. Bridges, [1831] 1 B & Ad. 847 at 859 the famous and
    oft quoted words of Lord Tenterdan, occur:

               "Where an Act creates an obligation and enf.;rces the
               performance in a specified manner, we take it to be a
G              general rule that performance cannot be enforced in any
               other manner."

          This statement of law was approved not only by the House of
    Lords in several cases, but also by this Court in Premier 'Automobiles
    v. K.S. Wadke, [1976] 1SCR427 where this Court was called upon to
H   consider whether the Civil Court can decide a dispute squarely coming
           S.K. MEHTA v. G.R. BOHRA [K. RAMASWAMY, J.]                 155

within the provisions of the Industrial Disputes Act. While considering
that question, this Court laid down four propositions and third of them       A
is relevant for consideration here. It is as follows:

            "(3) If the industrial dispute relates to the enforcement of
            a right or an obligation created under the Act, then the
            only remedy available to the suitor is to get an adjudication     B
            under the Act."

       Thus on construction of relevant provisions of the Act and in the
light of the position in law it mus\ be held that the provisions of Section
13 of the Act applies to the building leased out to the appellant by the
landlord and the Controller was the competent authority to pass a
decree of ejectment against the ap_pellant and the Civil Court lacked         c
inherent jurisdiction to take cognisance of the cause and to pass a
decree of ejectment therein. The next question is whether the
impugned decree is a nullity and whether the plea can be raised in
execution and further whether the decree in the suit does not operate
as res judicata.                                                              D

       In Kiran Singh & Ors. v. Chaman Paswan & Ors., [1955) 1 SCR
 117 = AIR 1954 SC 430 the facts were that the appellant had under-
valued the suit at Rs.2,950 and laid it in the court of the Subordinate
Judge, Monghyr for recovery of possession of the suit lands and mesne
profits. The suit was dismissed and on appeal it was confirmed. In the        E
second appeal in the High Court the Registry raised the objection as to
valuation under Section 11. The value of the appeal was fixed at
Rs.9,980. A contention then was raised by the plaintiff in the High
Court that on account of the valuation fixed by the High Court the
appeal against the decree of the court of the Subordinate Judge did not
lie to the District Court, but to the High Court and on that account the      F
decree of the District Court was a nullity. Alternatively, it was con-
tended that it caused prejudice to the appellant. In considering that
contention at page 121, a four Judge Bench of this Court speaking
through Vankatarama Ayyar, J. held that:

            "It is a fundamental principle well-established that a            G
            decree passed by a Court without jurisdiction is a nullity,
            and that its invalidity could be set up whenever and ·wher-
            ever it is sought to be enforced or relied upon, even at the
            stage of execution and even in collateral proceedings. A
            defect of jurisdiction, whether it is pecuniary or territorial,
            or whether it is in respect of the subject-matter of the          H
    156         SUPREME COURT REPORTS               [ 1989] Supp. 2 S.C.R.

               action, strikes at the every authority of the Court to pass
A              any decree, and such a defect cannot be cured even by
               consent of parties. If the question now under consideration
               fell to be determined only on the application of general
               principles governing the matter, there can be no doubt that
               the District Court of Monghyr was coram non judice, and
B              that its judgment and decree would be nullities."

          On merits it was held that since the appellant himself had
    invoked the jurisdiction of the Civil Court with under valuation, the
    objection as to jurisdiction was not available by operation of Section
    99 of the Code and as to the territorial jurisdiction he was precluded by
    operation of Section 21 of C.P.C.; and on such premise it was held that
c   the decree of the District Court could not be treated to be a nullity and
    person who invoked the jurisdiction cannot plead prejudice to himself
    by his own act.

          This Court has held that it is a well established principle that a
D   decree passed by a court without jurisdiction is a nullity and the plea
    can be set up whenever and wherever the decree is sdught to be
    enforced or relied upon, and even at the stage of execution or in
    collateral proceedings.

           In the case of Ferozi Lal Jain v. Man Mal & Anr., AIR 1979 SC
E   794 the facts were that the appellant was the owner of a shop. One of
    the covenants under the lease was that the lessee respondent should
    not sub-let the shop. On the ground that the respondent had sub-let
    the shop, a suit was laid for eviction under Section 13 of the Delhi and
    Ajmer Rent Control Act, 1952. The matter was compromised and a
    compromise decree was passed. Twice time was given for delivery of
F   the .vacant possession by the respondent. On his failure to deliver
    vacant possession the appellant filed execution to recover possession.
    The tenant raised the objection that unless any one of the grounds
    prescribed under Section 13 of the Rent Control Act was satisfied, the
    decree even on compromise was a nullity, and therefore, he could not
    be evicted. This Court held that the order made did not show that it
0   was satisfied that the sub-letting complained of had taken place, nor
    was there any other material on record to show that it was so satisfied.
    It is clear from the record that the Court had proceeded solely on the
    basis of the compromise arrived at between the parties. That being so
    there was hardly any doubt that the Court was not competent to pass
    the impugned decree. Hence the decree under execution must be held
    to be a nullity. On that basis it was held that the objection could be
           S.K. MEHTA v. G.R. BOHRA [K. RAMASWAMY, J.[                157

raised even at the execution stage. Ultimately, the decree·was held to
be void.                                                                      A

       In Bahadur Singh v. Muni Sub rat Dass, [1969] 2 SCR 432 the
decree under execution was made on the basis of an award and it was
held that the decree was passed in contravention of section 13(1) of the
Rent Control Act. Thereby the decree was held to be void and hence            B
no execution could be levied on the basis of the void decree. A similar
view was also taken by this Court in Smt. Kaushalya Devi & Ors. v.
K. L. Bansal, AIR 1970 SC 838. This was also a case under the Delhi
and Ajmer Rent Control Act and was on the basis of a compromise. It
was held that the decree passed on the basis of the award was in
contravention of Section 13(1) of the Act as the Court had passed the
decree without satisfying itself that any good ground of eviction exis-       c
ted. Therefore, the decree for delivery of possession was held to be a
nullity and could not be executed. This is also a decision by a Bench of
three Judges speaking through Sikri, J. as he then was.

      In Chandrika,Misir & Anr. v. Bhaiya Lal, [1973] 2 SCC 474               D
Palekar J. speaking for a Bench of two Judges held that the decree
passed by the Civil Court in relation to matters governed by U.P.
Zamindari Abolition and Land Reforms Rules, 1952 for possession
was a nullity and in the appeal it was for the first time permitted to be
raised in this Court and the decree was declared to be a nullity.
                                                                              E
      In Ledgard v. Bull, [ 1886] Law Report, 13 AC, 134 the Privy
Council laid down that where the original Court in a suit was inhe·
rently lacking jurisdiction, and was incompetent to try the same, on its
transfer by consent of parties, to a Court with jurisdiction such consent .
did not operate as a waiver of the plea of want of jurisdiction.
                                                                              F
      In Bartan v. Fincham, [1921] 2 Kings Bench Division, 291at299
it was held that:

           "Parties cannot by agreement give the Courts jurisdiction
           which the Legislature has enacted they are not to have
                                                                              G
           The Court cannot give effect to an agreement whether by
           way of compromise or otherwise, inconsistent with the pro·
           visions of the Act."

     In Peachery Property Corporation v. Robinson, [1966] 2 All Eng.          H
    158           SUPREME COURT REPORTS            [ 1989) Supp. 2 S.C.R.

A Report 9lH at 983 Winn, Lord J. took the same view.

        In Choudari Rama (dead) per L. R. Choudhary Ganapathi v.
  Qureshi Bee, [1983] 2 Andhra Law Times 133 one of us Ramaswamy,
  J. was called upon to consider the question on a set of similar facts.
  Therein the petitioner who died subsequently was protected under
B A.P. (Telangana Area) Tenancy and Agricultural Holdings) Act,
  1950. The protected tenant was given possession in exercise of statu-
  tory power under Section 38-A of that Act. That was done during the
  pendency of the suit for partition between the co-sharers. the tenant
  was impleaded co-nominee defendant to the suit. A preliminary
  decree for partition and for possession was passed. A final decree
  followed. The decree became final and execution was levied for pos-
e session. Objection was taken that since the tenant was a ,protected
  tenant under the Act, the decree was a nullity and could not be
  executed against the legal representatives. After considering the scope
  of relevant provisions of the Act, it was held that the Civil Court
  cannot go into the legality or correctness of the Exhibit B-1, issued by
D the Tehsildar. The revenue authorities constituted under that Act
  were competent to go into the validity thereof. Civil Court inherently
  lacked jurisdiction and the decree of ejectment of the protected tenant
  from the lands covered by the protected tenancy was a nullity because
  of the provisions of Chapter IV of the Act. The plea can be set up even
  at the stage of execution, as was rightly done in that case. Otherwise it    '
E would have the effect of nullifying the operation of the statutory provi-
  sions in Chapter IV of the Act and deprived the protected tenant of his
  vested interest in the land created in his favour under the tenancy
  certificate (Ex. B-1). It was also held in paragraph 64 that "Its validity
  can be assailed in the execution proceedings." We approve the view of
  the High Court.
F
         In Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai N.B. Jee-
   jeebhey, [1970) 3 SCR 830 the Bench consisting of Shah, CJ., Hegde
   and Grover, JJ. was called upon to consider whether a decree passed
   without jurisdiction operates res judicata. The facts therein ~ere that
   the respondent leased out the land for construction of a building to the
G appellant, which was duly constructed. The tenant applied for fixation
   of the standard rent. The Civil Court rejected the prayer holding that
   the Bombay Rents, Hotel and Lodging House Rates Control ~ct, 1947
   does not apply to the open land let out for construction. But later the
   High Court reversed that view in another decision and held that the
   Act applied to the oeen land leased out. Relying upon that judgment,
H an application was again filed for fixation of the standard rent of the
          .   .                                                    '
                   S.K. MEHTA v. G.R. BOHRA !K. RAMASWAMY, J.]                   159

       premises. Objection was raised that the earlier rejection operated as
                                                                                       A
       res judicata. In that context, in negating the contention, this Court
       held that the doctrine of res judicata belongs to the domain of proce-
       dure. It cannot be exalted to the status of a legislative direction bet-
       ween the parties so as to determine the question relating to the
       interpretation of enactment affecting the jurisdiction of a Court finally
       between them, even though no question of fact or mixed question of              B
       law and fact relating to the right in dispute between the. parties has
       been determined thereby. A decision of a competent Court on a mat-
       ter in issue may be res judicata in other proceedings between the same
       parties. The matter in issue may be an issue of fact. The fact decided
       by a competent Court is final determination between the parties and
       cannot be re-opened between them in another proceeding~ The pre-
       vious decision on a matter in issue alone is res judicata. The reasons for      c
       the decision are not res judicata. A matter in issue between the parties is
       the right claimed by one party and denied by the other. The claim of
       right from its very nature depends upon proof of facts and application
-\ .   of the relevant law thereto. A pure question of law unrelated to facts
       which give rise to a right, cannot be deemed to be a matter in issue.           D
       When it is said that a previous decision is res judicata, it is meant that
       the right claimed has been adjudicated upon and cannot again be
       placed in contest between the same parties. A previous decision of a
       competent Court on facts which are the foundation of the right and the
       relevant law applicable to the determination of the transactions which
       is the source of t)le right is res judicata. A previous decision on a           E
       matter in issue is a composite decision; the decision of law cannot be
       dissociated from the decision on facts on which the right is founded. A
       decision on an issue of law will be res judicata in a subsequent proceed-
       ing if it be the same as in the previous proceeding, but not when the
       cause of action is different, nor when the law has since the earlier
       decision been altered by a competent authority, nor when the decision           F
       relates to the jurisdiction of the Court to try the earlier suit nor when the
       earlier decision declares valid a transaction which is prohibited by law:

                   "A question of jurisdiction of the Court, or of procedure,
                   or a pure question of law unrelated to the right of the
                   parties to a previous suit, is not res judicata in the subse-       G
                   quent suit. Rankin, CJ., observed in Tarini Charan Bhat-
                   tacherjee's I.LR. 56 Cal. 723 case:-

                         "The object of the doctrine of res judicata is not to
                         fasten upon parties special principles of law as applic-
,.                       able to them inter se, but to ascertain their rights and      H
    160         SUPREME COURT REPORTS                [1989] Supp. 2 S.C.R.

                      the facts upon which these nghts directly and substan-
A
                      tially depend; and to prevent this ascertainment from
                      becoming nugatory or precluding the parties from
                      reopening or recontesting that which has been finally
                      decide.ct."

B                "A question relating to the jurisdiction of a Court cannot be
                deemed to have been finally determined by an erroneous
                decision of the Court. If by an erroneous interpretation of
                the statute the Court holds that it has no jurisdiction, the
                question would not, in our judgment, operate as res
                judicata. Similarly, by an erroneous decision if the Court
                assumes jurisdiction which it does not possess under the
c               statute, the question cannot operate as res judicata between
                the same parties, whether the cause of action in the subse-
                quent litigation is the same or otherwise."
                                                          (Emphasis supplied)

D         In that case it was held that since it relates to the jurisdiction of
    the Court as per law declared by the legislature, it does not operate as
    res judicata.

         In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors.,
  [ 1970] 1 SCC 670 a Bench of three Judges of this Court consisting of
E Shah, J., as he then was, Hegde and Grover, JJ. was considering the
  question of nullity of a decree. The facts therein were that the appel-
  lant, owner of the plot of land, leased out the same to the respondent
  at an annual rental of Rs.411. The suit was dismissed and on appeal it
  was reversed and suit was decreed. On revision it was confirmed by the
  High Court. Special leave petition filed in this Court was also dismis-
F sed. In the execution the contention was raised that the Small Causes
  Court had no jurisdiction to entertain the suit. It was contended that
  the decree was a nullity on the ground that Bombay Rents Hotel and
  Lodging House Rates (Control) Act 57 of 1947 applied to the facts in
  that case. In that context Shah, J., as he then was, speaking for the
  Court held that challenge to a decree which is a nullity can be raised at
G any time, but the Court executing the decree cannot go behind the
  decree between the parties or on their representation it cannot enter-
  tain any objection that the decree was incorrect in law or pn facts,
  unless it is set aside by an appropriate proceeding in appeal or revi-
  sion. A decree even if it be erroneous is still binding between the
  parties. In that context it was held that the question whether the Court
H of Small Causes had jurisdiction to entertain the Suit depended upon
                                                                                  "
            S.K. MEHTA v. G.R. BOHRA [K. RAMASWAMY, J.)                   161

the interpretation of. the terms of the agreement of lease, and the use
                                                                                 A
to which the land was put at the date of the grant of the lease. These
questions cannot be permitted to be raised in an execution proceedings
so as to displace the jurisdiction of the Court which passed the decree.
It was further held that for the purpose of determining whether the
Court which passed the decree had jurisdiction to try the suit, it is
necessary to determine facts relevant to the issue on which the ques-            B
tion depends, and the objection does not appear on the face of the
record, the executing Court cannot enter upon an enquiry into those
facts. It is seen that on the facts in that case it is for the first time the
executing Court is to adjudicate upon the terms of the lease whether
the Court of Small Causes had jurisdiction to entertain that suit. It is
not a case of interpretation of the statutory provisions or inherent lack
of jurisdiction. It is already seen that in fact for the first time this Court
                                                                                 c
in Chandrika Misir's case (supra) had to go into the statutory provi-
sions though no case in that regard had been setup   ' in the courts below
and held that the Civil Court lacked inherent jurisdiction to pass the
deqee. Therefore, the ratio in this case is not in conflict with the.view
taken by this Court.                                                             D

       It is no doubt true that in Seth Hiralal Patni v. Sri Kali Nath,
[ 1962] 2 SCR 747 the facts· were that the suit was instituted on the
original side of the Bombay High Court against the appc:lant for
recovery of certain arrears out of transactions taking place at Agra.
The dispute was referred to arbitration. The arbitrator gave his award
in favour of the respondent which was upheld on appeal by the High
Court. In execution proceedings an objection was raised by the appel-
lant that the Bombay High Court has no jurisdiction to entertain the
suit to. make the award a decree of the Court as no part of the cause of
action had arisen within its territorial jurisdiction. Therefore, the
decree was without jurisdiction. It was held that since the parties had          F
agreed to refer the matter to arbitration through Court, which had
jurisdiction, he would be deemed to have waived the objection as to
the territorial jurisaiction of the Court. Therefore, it is not a nullity
and the appellant was held to be-estopped from challenging the juris-
diction of the Bombay High Court. The ratio therein does not apply to
the facts of this case.                                                          G

     The case ·of Phool Chand Sharma & Ors. v. Chandra Shanker
Pathak & Ors.; [1963] SCR Suppl. 2 828 also does not help the respon-
dent. It was a case where the suit was decreed and possession was
taken thereunder. On appeal by the respondent it was dismissed. On
Second Appeal before the Board of Revenue the matter was com-                    H
    162         SUPREME COURT REPORTS                [1989] Supp. 2 S.C.R.

    promised, whereuncler Ramprasad was recognised as a ten~nt of the
A
    land in dispute and the order of eviction was thus nullified. When he
    made an application under Sec. 144 C.P.C. for restitution it was
    resisted by the tenants subsequently inducted on the ground that the
    respondent was inducted as tenant by the decreeholder, and the decree
    does not bind them. This was upheld by the trial court and on appeal.
B   A writ petition was also dismissed on merits. The decree became final.
    The order of the High Court under Art. 227 became final. Then
    against the order of the Board of Revenue an appeal under Art. 136
    was filed in this Court. A preliminary objection was raised that the
    decision of the High Court under Art. 227 operated as res judicata. In
    that context it was held by this Court that the appeal was barted by res
C   judicata as the decision ot the High Court was on merits and would
    bind the parties unless it was modified or reversed in appeal or by
    other appropriate proceedings. The facts are clearly distinguishable.

          The case of Mohan/al Goenka v. Benoy Krishna Mukherjee &
    Ors., [ 1953] SCR 377 is also of little assistance to the respondent. The
D   decree passed by the Calcutta High Court on its original side was
    transferred for execution to the Court of Subordinate Judge of
    Asansol with proper certified copy of the decree and order o~ transmis-
    sion. The execution application was dismissed for default and a certifi-
    cate was sent under Sec. 41 C.P.C. stating that the execution case was
    dismissed for default without transmitting the decree or the covering
E   iettcr s~nt by the High Court. The decree-holder again applied for
    execution. It was accordingly executed. Then an application to set
    aside the sale was made under Order 21Rule90 C.P.C. on the ground
    that the decree is a nullity and the Court had no jurisdiction to execute
    the decree. While negating the contention it was held that since the
    decree sent was not transmitted it would be regarded as a fresh appli-
F   cation for execution and, therefore, the executing Court had jurisdic-
    tion and the decree was not a nullity. That case also is rtot one of
    inherent lack of jurisdiction.

          Thus it is settled law that normally a decree passed by a Court of
    competent jurisdiction, after adjudication on merits of the rights of the
G   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 over the
    subject matter or on other grounds which goes to the root pf its exer-
H   cise or jurisdiction, lacks inherent jurisdiction. It is a comm non
                S.K. MEHTA v. G.R. BOHRA (K. RAMASWAMY, J.)              163
't
     judice. A decree passed by such a Court is a nullity and is non est. Its
     validity can be set up whenever it is sought to be enfored or is acted .A
     upon as a foundation for a right, even at the stage of execution or in
     collateral proceedings. The defect of jurisdiction strikes at the autho-
     rity of the Court to pass a decree which cannot be cured by consent or
     waiver of the party. If the Court has jurisdiction but there is defect in
     its exercise which does not go to the root of its authority, such a defect B
     like pecuniary or territorial could be waived by the party. They could
     be corrected by way of appropriate plea at its inception or in appellate
     or revisional forums, provided law permits. The doctrine of res
     judicata under Sec. 11 C.P. C. is founded on public policy. An issue of
     fact or law or mixed question of fact and law, which are in issue in an
     earlier suit or might and ought to be raised between the same parties or
     persons claiming under them and was adjudicated or allowed uncon- c
     tested becomes final and binds the parties or persons claiming under
     them. Th.us the decision of a competent Court over the matter in issue
     may operate as res judicata in subsequent suit or proceedings or in
     other proceedings between the same parties and those claiming under
     them. But the question relating to the interpretation of a statute touch- D
     ing the jurisdiction of a Court unrelated to questions of fact or law or
     mixed questions does not operate as res judicata even between the
     parties or persons claiming under them. The reason is obvious; a pure
     question of a law unrelated to facts which are the basis or foundation
     of a right, cannot be deemed to be a matter in issue. The principle of
     res judicata is a facet of procedure but not of substantive law. The E
     decision on an issue of law founded on fact in issue would operate as
      res judicata. But when the law has since the earlier decision been
      altered by a competent authority or when the earlier decision declares
      a transaction to be valid despite prohibition by law it does not operate
     as res judicata. Thus a question of jurisdiction of a Court or of a
     procedure or a pure question of law unrelated to the right of the F
     parties founded purely on question of fact in the previous suit, is not
     res judicata in the subsequent suit. A question relating to jurisdiction
     of a Court or interpretation of provisions of a statute cannot be
     deemed to have been finally determined by an erroneous decision of a
     Court. Therefore, the doctrine of res judicata does not apply to a case
     of decree of nullity. If the Court inherently lacks jurisdiction consent G
     cannot confer jurisdiction_ Where certain statutory rights in a welfare
     legislation are created, the doctrine of waiver also does not apply to a
     case of decree where the Court inherently lacks jurisdiction.

          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       H
     164         SUPREME COURT REPORTS                [ 1989] Supp. 2 S.C.R.

A    the appellant in execution. It is 'lllready held that it is the Controller
     under the Act that has exclusive juridiction to order ejectment of a         '
     tenant from a building in the urban .area leased out by the landlord.
     Thereby the Civil Court inherently lacks jurisdiction to entertain the
     suit and pass a decree of ejectment. Therefore, though the decree was
     passed and· the jurisdiction of the Court was gone into in issue Nos. 4
·B   and 5 at the ex-parte trial, the decree thereunder is a nullity, and does
     not bind the appellant. Therefore, it does not operate as a resjudicata.
     The Courts b~low have committed grave error of law in holding that
     the decree in the suit operated as res judicata and the appellant cannot
     raise the same point once again at the execution.

C        It is seen from the dates mentioned that there is no delay in filing
  the. leave application. The leave application was filed within the limita-
  tion from the date of original order of dismissal of the revision or on a
  later date dismissing the review applicatio!l. It is true that the writ
  petition was filed against the order in revision, but it does not preclude
  the appellant to contest its invalidity in the appeal under Art. 136. The
D decree was executed pending the special leave petition. This Court
  would relieve the party from injustice in exercise of power under Art.
  136 of the Constitution when this Court notice grave miscarriage of
  justice. It is always open to the appellant to take aid of Sec. 144 C.P.C.
  for restitution. Therefore, merely because the decree has been ex-
  ecuted, on the facts when we find that decree is a nullity, we cannot
E decline to exercise our power under Art. 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.

     Y. Lal                                                  Appeal allowed.