P. DASA MUNI REDDY v. P. APPA RAO September 10, 1974 [A. N. RAY, C.J. AND v. R. KRISHNA IYER, J.] A11<tlira Pradesln Bulldillg.r (Lease, Rent and Ev.ictio11 Control) Ad( (A.P. Act 15 of :1960)-Not app/ic1ible to build!ngs co11structed ';lit.er August 1957-Appllca- tion for eviction to rent controlled with respect to bur/ding constructed after 1958 -Dismissal and subsequent .lllit in Cil'i! Court-WhPther landlord precluded by waiver res;udicata or estoppe/.
The Andhra Pradesh Bui'ldings (Lease, Rent and Eviction Control) Act, 1960, doe.s not apply to any building constructed after August !957. The appellant was the owner of a bc.ilding which was constructed in 1953 and the resP<>ndent was the tenant. The appellant. by mistake, tued an applica- tion before the Rent ControUer for .evktion of th•~ respondent on the ground of default in payment of. rent. The petition was dismissed by Rent Controller and by the appella~ authority. Thereafter, the appellant instituted a suit in tile Civil Court for eviction of the. re~pondent. The trial court apd the first appellate court decreed the suit, but th1: High Court set aside the decree in favour of the appellant on the ground that the appellant \Vas precluded by the principle of waiver from claiming any relief
Allowing the appea!I to thi's Couri, HELD : The appellant was not disentitlecl to relief on the grounds of waiver, res iudicata or estoppet. [36F] (1) Waiver is an intentional reli11qui~e111 of a kriown right or advantage, benefit, claim or privile~ which, eJlicept for such waiver. the party would have enjoyed and is based on the rule of judicial po!>~y that a person will not be a11owed to take inconsistent positions to gain advantage through courts. Volun- tary cho.ico is the essence of waiver, that is, there should be an opportunity for choice between relinquishment and an enforcement of the right in question. Jt is.·consensual in natu!ll and implies a meeting of the minds and is a· matter of .mutual intention. It cannot be· held that there has been a waiver of valuable rights whr.re th" circumstances show that what was done wa~ involuntary, and, there cam be no waiver of a non-existent right. One cannot waive that which is not one's as a right at the time of waiver.
Some mistake or misapprehension as to some ot the facts which comtitute the underlyinll assumption, without which . the partiee would not have made the contract may b~ sufficient to justify the court in Saying that there was no consent. As one cannot. confer jurisdiction by con- sent, similarly, one cannot by agre·!ment waive jurisdiction of Courts. f35F-36C] Lachoo Mal v. Radh~y Shyam. [197 J] 3 S.C.R. 693, explained. (2) The Rent Controllei· had. no jurisdiction ·in respect of the building because of the date of its construction. and only the civil court had jurisdiction. The decree in the suit before the Rent Controller cannot be pleaded as res judicalll · because the Rent Controller had no jurisdiction to try and decide not only the particular matter in the suit but also the subsequent siiit in which the issue was raised. l'he date of .constn:iction wai not before the Rent Controller Under
s. _44 the Evidence Act also the a.ppel!ant could show that the judgment in the suit before the Rent Controller was delivered by a Court not competent to deliver it. [35C.EJ Gokul Mancla.r v. P11dmanu11cl, 29 I.A. 196, referred to.
(~) The foundation of tli1e doctrine of esto~I i• tbat there is representation of ex1st111g facts. A status of control of premises under the Rent Control Acts c P. D. MUNN! REDDY v. P. APPA RAO (Ray, C.J.)
·cannot be· acqu(red either by estoppel or by res judicata. The principle Is thac neither estoppel nor res judicata can give the court jurisdiction under the Acts which those Acts say it is not to have. The Rent Control Acts operate in rem. They give a status to the house from which certain legal consequeno."5 follow. [36C-E]
Dawson's Bank Ltd. v. Nippo11 M. K. Kaisha, 62 I.A. JOO, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No.· 1228 of 1973. _ Appeal by Special Leave from the Judgment and Order dated the 5th September, 1972 of the Andhra Pradesh High Court in Second Appeal No. 256 of 1972:
P. Ramachandra Reddy, P. P. Rao, T.V.S.N. Chari and A. K. c · Ganguli, for the appellant. K. Jayaram, for the respondent. The Judgment of the Court was delivered by RAY, C.J. This is an appeal by special leave from the judgment dated 5 September, 1972 of the Andhra Pradesh High Ccltlrt dismissing the appellant's suit against the respondent for possession of the building in occupation ot the respondent.
The appellant is the owner of the ·building in question. The build- ing was constructed sometime in 1958. The appellant on 1 NciVem- ber, 1958 let out the building to the respondent on a lease for three years.
The. lease was on monthly basis. ·The lease expired on 31 October, 1961. The appellant filed an application before the Rent Controller, Chandragiri for eviction of the respondent from · the building. The application was under section 10(2)(i) read with section 3 (1 )(a) of the Andhra Pradesh Buildings (Lease, Rent . and Eviction Control} Act, 1960 hereinafter referred to as the Act. On 30 September, 1963, the Rent Controller dismissed the application for eviction. On 7 October, 1963 the appellant gave a notice to the respcndent determining the lease and asked for possession. The appellant stated in the notice that the building was constructed after 26 August, 1957 and therefore, the Act did not apply to the building in question. On 21 October,· 1963 ·the respondent replied and denied that the building was constructed after 26 August, 1957.
The appellant preferred an appeal to the Appellate Authca:ity under the Act against the order of the Rent Controller dated 30 September, 1963. On 17 December, 1965, the appeal was dismissed by the Appellate Authority.
On 20 November, 1967 the appel!ant instituted a suit in the Court of the District Munslff; Tirupathi for eviction of the respondent. The cause of action was that the respondent did nett surrender possession of the building on the expiry of the lease. Further allegations were · that the respondent committed default in payment of rent. The appel~ !ant referred to the proceedings before the Rent Controller resulting iTh . 4-251 Sl.!P .. CI/'15
SUPREME COURT REl.'ORTS dismissal of the appellant's applicaticin before the Rent Controller for eviction of. the respondent. The appellant also alleged that the provi- sions of the Ac:t did not apply to the building in question because it was constructed after 26 August, 1957.
On 26 March 1969 the appellant's suit was decreed. The respon- dent preferred an appeal. The Subordinate Judge on 24 February 1972 dismissed the appeal and confirmed the decree. The High CclUrt on 5 September 1972 reversed the decree of the Subordinate Judge and set aside the decree.
The High Court held that the appellant was precluded by the principle of waiver from daill!-ing any relief in the suit. The High Court relied on the decision of this Court in Lachoo Mal v. Radhev Shyam.(1)
The appellant there Wls a tenant. The landlord wanted to demolish the house and construct a new· building. The landlc1rd and the tenant entered into an agreement. The agreement was that the tenant would vacate the shop on condition that after the comple- tion of the construction of the house. the tenant would resume the possession •of the shop. The agreement further provided that the landlord would not be entitled to derive benefits from the Rent Con- tml and Eviction Act. Section 1-A of the U.P. Rent Control and Eviction Act provided that the buildings constructed after 1 January 19 51 were exempted from the operation of 'the Act. The section said that nothing in the Act shaU apply to any building or part of a build- ing which was under erect_ion or was constructed on Cil' after I . J anu- arv 1951.
The. tenant resumed possession of the shop after 'its COil· – struction. The cenant offered rent to the landlord. The landlord did · not accept the same. The tenant thereafter deposited the rent. The .landlord gave a notice to determine the tenancy. The Trial Court dis- missed the suit holding that the tenant was entitled to the protection conferred by secti-on 3 of the Act. ,The District Judge took a contrary view and decreed the suit of the landlord. The High Court held that the landlord was entitled to rely on secticln 1-A of the Act which took away from the operatiort of the Act buildings constructed on or after 1 January,. 1951.
This Court in Lachoo Mal's case(supra) said that the questio11 was whether it was open to the Jandlcl!"d to give up the benefit of the provi- sions or waive the same by 'o/ans of an agreement of the nature which was entered into between the appellant and the landlord. This Court held that every one has a right to waive and to agree to waive the advantage of a law or rule. This Court held that in case a particular cr.vner did not wish to avail the benefit of sectio111 1-A of the Act, there was no bar created by the Act in the way of his waiving or giving up or abandoning the advantage of the benefit. On tJtat reasoning, this Court set aside the judgment of the High Court and restored the decree of the trial Cour.t dismissing the suit in Lachoo Mal's case (supra). Lachoo Mal's case (supra) has no application to the present case which raises the question as to whether the appellant has waived the —(l)[i1111} 3 s. c:R: 693·A. r. R. 1911 s. c. 221~.
. A c P. D. MUNNI REDDY v. P. APPA RAO (Ray, C.J.) jurisdiction of the Court to entertain the suit for eviction of the· res- pondent. In the present case the issue in the suit under appeal as framed in the trial Court was whether the appellant became estopped from pleading that the Rent Control Act cc!llld not apply to the building. The concurrent finding of the trial Court and the First Appellate Court is that the building was.constructed in the year 1958. The Act would not apply to any building constructed subsequent to the month of August, 1957. The Civil Court and not the Rent Cci!ltroller would have jurisdiction in "respect of such buildings. The First Appellate Court held that the appellant sought eviction before the Rent Con- troller on the ground that there was default in payment of rent. The date of construction' cd' the building was not in question before ' the Rent Controller. The First Appellate Court came to the conclusion that the appellant's ~uit was barred neither by res judicata nor by any principle of es~oppel.
It is indisputable that the Rent Controller could have no jurisdic- tici!l in respect o'f the building in question because of the date of con- struction of the building. The decree in the suit before the Rent Con- troller cannot be pleaded as res judicata because the Rent Controller ..yould have no jurisdiction to try and decide not only a particular· matter in the suit but also the subsequent suit in which the issue is raised. See Gokul Mandar v. Pudmanund('). Section 44 of the Evi- dence Act also supports the appellant to show that the judgment in the suit before the Rent Controller is delivered by a Court not compe- tent to deliver it. Want of jurisdiction must be distinguished from· irregular or errcjneous exercise of jurisdiction. If there is want of jurisdiction the whole proceeding is coram non judice.
The absence of a condition necessary to found the jurisdiction to make an order or' give a decision deprives the clt'dei or decision of any conclusive effect. (See Halsbury's Laws of England, 3rd F.d. Vol. 15 para 384). Abandonment of right is much more than mere 'waiver, acquies· cence or !aches. The decision of the High Court fa the present case is that the appellant has waived the right to evict the respondent. Waiver is an intentional relinquishment of a known right or advan- tage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be ·a voluntary surrender of a right. The Doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of breach of some con· dition in the contract cd' tenancy. The doctrine which the courts oi law will recognise is a rule of judicial policy that a person will not be' allowed to .take inconsistent positions to gain advantage through the aid of courts. Waiver sometimes partakes of the nature of an elec· tion. Waiver 'is consensual in nature. It implies a: meeting of the minds. It is a matter of mutual intention. The doctrine does not depend on misrepresentation.
Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the (I) 29 J. A. 196.
[1975] 2 · s.c.R. other. The essential element of waiver is that there must be a volun- tary and intentional relinquishment of a right. The volun!llry choice is the essence of waiver. There should exist an
opportunity . for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has, been a waiver of valuable tights where the circumstances show that what was done was involuntary.
There can be no waiver of a non-existent right. Similarly, one cannot waive that which is not one's as a right at the time of waiver. Some mistake or misapprehension as to some facts
:Which constiMe the u111de.rlyingj assumptihn without whidh parties would not have made the contract may be sufficient to justify the court in saying that theri~ was no consent. Just as the courts normally do not permit contracting out of the Acts so there can be no contracting in.
A status of control of pre- mises under the Rent Control Acts cannot be acquired either by estoppel or by res judicata. The principle is that neither estoppel nor res judicata can give the court jurisdiction under the Acts which those Acts say it is not to have.
The Rent Control Acts operate in rem. These Acts give a status to the house from which certain legal consequences follow. In the present case, the building in question is beyond doubt out- side the protection of Rent Control Acts. The foundation of the doc- trine of ·estoppel is that the representation must be of existing facts and not of mere intention (See Dawson's Bank Ltd. v. Nippon.M. K. Kaisha(!). There must be a statement of fact and not a mere promise to do something in future.
The appellant proved that the appellant made a mistake of fact in regard to the building being outside the mischief of the Act. The appellant instituted the suit before the Rent Controller in mistake about the underlying and fundamental fact that the building was out- side the ambit of the Act.
The Civil Court has jurisdiction in the subsequent suit which is the subject of .this appeal. The appellant is not disentitled to any relief on the grounds of res judicata or estoppel or waive.r. As one cannot confer jurisdiction by 1~onsent similarly one cannot by agreement waive exclusive jurisdiction of courts. The Civil Court and not the Rent Control possesses jurisdiction over the build- ing in question.
For these reasons the judgment of the High Court is set aside. The decree in favour of the appellant passed by the trial Court and confirmed by the First Appellate Court is restored. The respondent wanted time to quit and vacate the building in question. The respon- dent is given time till 30 June, 1975 to vacate and deliver vacant possession to the appellant.
The appellant will be entitled to costs of the trial Court, the First · Appellate Court. and the High Court. Parties will pay and bear their own costs in this Court. V.P.S. Appeal allowed.
(I) 62 I. A. 100. c