TaxTMI 
TaxTMI 
2004 (8) TMI 689
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....o the landlord. It was the case of the landlord that the tenant did not pay rent regularly and was in arrears of rent from November 01, 1963 to October 31, 1976 i.e. for 13 years. Since Papamiya died, proceedings were initiated against heirs of deceased Papamiya. According to the appellants, a notice was issued to heirs and legal representatives of Papamiya terminating the tenancy by a registered post but the heirs could not be served and the notice came back. Again, a notice was sent under certificate of posting which h d not come back. Thus, there was a presumption of service of notice. It was also the case of the appellants that on the outer-door of the suit premises, a copy of the notice was affixed. On 4th April, 1977, a suit for possession was filed by the plaintiffs-appellants against heirs and legal representatives of deceased Papamiya in the Court of Small Causes, Bombay, being RAE Suit No. 1992 of 1977. On 25th March, 1980, the case was listed for recording evidence. One Mr. G.R. Singh, advocate was appearing for the defendants. On that day, evidence of plaintiff No. 2 was recorded. He stated that deceased Nagendra Vishwamitra was his father and the plaintiffs were owner....
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....d party, i.e. respondents herein. An application was, therefore, filed by the plaintiffs-decree holders for removal of obstructions. The executing court, by an order dated 13th July, 1986, held that the decree holders were entitled to execute the decree and they were allowed to recover the possession of the property. The obstructionists were ordered to pay an amount of Rs. 5,000 towards costs. It may be stated that the obstructionists-respondents herein, filed an appeal against the decree passed by the trial court being Appeal No. 830 of 1984 as also against the order passed in the Obstruction Notice No. 293 of 1980. The appellate bench of the Small Causes Court, Bombay, by a judgment and order dated 14th July, 1986, dismissed the appeal with no order as to costs. At the request of obstructionists, the execution of warrant of possession was stayed for a period of one month. Aggrieved by the said order, the obstructionists approached the High Court by filing Civil Writ Petition No. 3384 of 1986, which was allowed by the learned single Judge holding the decree to be void ab initio. The said order is challenged by the appellants in the present appeal. On September 27, 1999, Special ....
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....the other hand, supported the order of the High Court. According to him, the respondents were never joined as party defendants in the suit before the Small Causes Court, Bombay. No notice was issued to them. They were never made known about the proceedings and hence the decree said to have been passed against the heirs and legal representatives of Papamiya would not bind them. It was also submitted that the notice was not issued by the plaintiffs to named heirs and legal representatives of Papamiya. The notice was issued to the heirs and legal representatives of Papamiya without disclosing the names, addresses and other details which ought to have been mentioned in the notice. The notice was, therefore, not a valid notice and no proceedings could have been legally instituted against the heirs and legal representatives of deceased Papamiya. A decree passed without proper notice and without joining necessary parties would not bind the heirs and legal representatives of deceased Papamiya. In any case, the respondents who are not claiming through heirs and legal representatives of Papamiya, but from Papamiya directly, cannot be made to suffer. The learned single Judge of the High Court....
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....rect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings. Before five decades, in Kiran Singh & Ors. v. Chaman Paswan & Ors., [1955] l SCR 117 this Court declared; "It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up wherever and whenever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction......strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by ....
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....lativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results.' (Administrative Law, Wade and Forsyth, 8th Edn., 2000, p. 308). Secondly, there is a distinction between mere administrative orders and the decrees of courts, especially a superior court. 'The order of a superior court such as the High Court must always be obeyed no matter what flaws it may be thought to contain. Thus, a party who disobeys a High Court injunction in punishable for contempt of court even though it was granted in proceedings deemed to have been irrevocably abandoned owing to the expiry of a time-limit.' (ibid., p. 312) A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal pro....
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....ror of law, or at the highest, a wrong decision which can be corrected in appellate proceedings and not by the executing court which was bound by such decree." As already stated hereinabove, proceedings were initiated against the heirs and legal representatives of deceased Papamiya and a decree was passed by competent court having jurisdiction over the subject-matter of the suit.' From the record, it is clear that the plaintiffs tried their best to get the names, addresses and other Information regarding heirs and legal representatives of Papamiya. For the said purpose, notices were sent to heirs and legal representative of the deceased by registered post which had come back. A notice under certificate of posting did not come back. A notice was, therefore, affixed on the suit premises. An attempt was also made to get names and addresses of heirs of the deceased Ahmed who was said to be staying at Bhandup, but no such Information was received by the plaintiffs. From the record, it is also clear that defendants were aware of the proceedings and they had engaged Mr. G.R. Singh, advocate who was appearing in the matter. On 25th March, 1980, he was present when plaintiff No. 2 was ....
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....at the decree which was passed by a competent court could not be executed against the respondents herein. It was contended by learned counsel for the respondents that the respondents were not made party defendants in the suit and hence no decree could have been passed nor could be executed against them. We are afraid we cannot uphold the contention. It is the case of the plaintiffs that the property was let to Papamiya. It is not even the case of the respondents that they were the tenants of the plaintiffs. They are claiming through Papamiya, At the most, therefore, they can be said to be sub-tenants i.e. tenants of Papamiya. There was no privity of contract between the landlord and the respondents. In our opinion therefore, it was not necessary for the plaintiffs to join respondents as defendants in the suit nor to give notice to them before initiation of the proceedings. The respondents cannot be said to be "necessary party" to the proceedings. As held by this Court in Udit Narain Singh Malpaharia v. Addl Member, Board of Revenue, Bihar, [1963] Supp l SCR 676, there is a distinction between "necessary party" and "proper party" In that case, the Court said: "The law on the subj....