Mohd. Hussain & Another v. Syed Raheemuddin.

Andhra Pradesh High Court

Nov 1, 1977

1. The defendants having lost before both the courts below preferred this
appeal under section 100 of the Code of Civil Procedure, aggrieved by
the judgment and decree dated 29th August 1975, passed by the Additional
Chief Judge (Temporary) City Civil Court Hyderabad in A.S No. 198 of
1973, whereby the learned Judge dismissed the appeal and confirmed the
judgment and decree dated 25-9-1973 passed in O.S No. 246 of 1968.

2. The suit giving rise to the above Second Appeal was instituted by the
respondent herein against the 1st appellant for declaration of his title to
and for recovery of possession of the mulgi bearing No. 1-6-260/2 situate
at Agapura, Hyderabad and for damages for the use and occupation. The
case for the plaintiff is that the plaint schedule property originally
belonged to one by name Haji Mohd. Abdul Waheb. The 1st defendant
was stated to be the tenant of the said owner on a monthly rent of Rs. 12/-.
The respondent plaintiff purchased the property from the owner under a
registered sale-deed dated 30.10.64 The vendor informed the 1st defendant
to pay the rents to the plaintiff from 1-11-1964 onwards. As the 1st
defendant did not either pay the rent or execute the lease-deed in favour of
the plaintiff, the respondent-plaintiff issued a notice to the first appellant-
defendant, requiring him to vacate the premises. As no reply was given,
the above suit was instituted.
3. The 1st defendant filed a written statement stating that one Syed Ahmed
filed a suit against the vendor of the respondent on 20-3-1964, seeking the
recovery of certain amounts due to him, in O.S No. 68/64 on the file of the
3rd Assistant Judge, City Civil Court Hyderabad, and obtained an
attachment before the judgment of the plaint schedule property on 25-3-
1964, and the suit was subsequently decreed on 16-3-1965. The 1st
defendant therefore contended that the sale in favour of the plaintiff during
the subsistence of the attachment was void and it did not confer any title or
right upon the respondent-plaintiff.

4. It is further alleged in the written statement that the decree-holder, Syed

Ahmed transferred the decree to one Putli Begum, who got herself
subsequently impleaded in the suit as the 2nd defendant. She filed E.P No.
37/1965 and brought the property to sale in execution of that decree. Haji
Mohd. Abdul Waheb, the vendor of the respondent, executed a registered
sale-deed dated 3-1-1966 in her favour for consideration of the decretal
amount. Therefore, according to the 1st defendant, it is the 2nd defendant
that is the real owner of the property and not the plaintiff. It is lastly
asserted that there is no relationship of landlord and tenant between him
and the respondent.

5. The 2nd defendant contended that she is the owner of the property on
account of the purchase made in her favour on 3-1-1966, and the sale-deed
executed by her judgment-debtor in favour of the plaintiff during the
subsistence of the attachment was void and it did not bind her.

6. The Assistant judge, after having framed the relevant issues, held that
the attachment before judgment was not properly effected and was
therefore not valid and consequently the plaintiff's sale deed was not
vitiated. So observing, the lower court decreed the suit declaring the
plaintiff's possession and title and directing payments of subsequent
damages for use and occupation.

7. The defendants thereafter carried the matter in appeal, A.S No. 51 of

1971 on the file of the Chief Judge, City Civil Court Hyderabad,
contending that the attachment did not take place under proper form and
therefore it was invalid. The learned counsel for the defendants contended
that the forms of attachment before judgment are the forms prescribed by
the Civil Procedure Code which were in vogue in the City Civil Court,
Hyderabad, even at the time of erstwhile Hyderabad, State, and that the
correct form No. 7-A of Schedule-F introduced by the Madras
Government, was not being used in Hyderabad State at all. He therefore
contended that the plaintiff should not be permitted to raise the plea of
invalidity of the attachment on the ground of incorrect use of forms. The
learned counsel for the plaintiff also requested the court to permit him to
let in further evidence to prove the sale-deed as it felt that the sale-deed
required proof of attestation.

8. It is under these circumstances, the matter was remanded to the lower

court by the appellate court with the following observation:—

“…….The lower court did not consider whether the City Civil Courts were
continuing unamended forms prescribed by Civil Procedure Code for
effecting attachment before the judgment. The form was amended only in
Madras and it was not brought into use in the former State of Hyderabad
which was using the original forms prescribed in the Civil Procedure Code
under which circumstances how far the decision in A.I.R 1956 Andhra
59 applies also has to be considered. The lower court also will send for the
original warrant of attachment before the judgment and also for
information from the City Civil Court, as what forms are in vogue both
before and after formation of Andhra Pradesh”.

9. Subsequent to the remand, the defendants sent for the forms prevalent in
the courts for effecting attachment before judgment. On a consideration of
the material placed before the appellate court, the appellate court decreed
the suit holding that the attachment of the property was void and that
consequently the plaintiff established title to the suit property. Aggrieved
by that decision, the defendants preferred an appeal A.S No. 198/1973 on
the file of the court of the Addl. Chief Judge City Civil Court, Hyderabad
in which agreeing with the finding of the Assistant Judge, it was held that
the attachment was not valid and that therefore the plaintiff, who has
purchased the property, gets title to the property. The learned Additional
Chief Judge dismissed the appeal with costs confirming the judgment and
decree of the lower court. Hence the Second Appeal.

10. Shri Bankatlal Mandhana, the learned counsel for the appellants,
contended that the attachment before the judgment effected in this case
was quite in conformity with Form No. 5 of Appendix ‘F’ in vogue here at
Hyderabad, and therefore, the sale effected in favour of the plaintiff
contrary to the attachment is bad.

11. Shri Upendraial Waghray, the learned counsel appearing for the
respondent, on the other hand, contended that the attachment order is bad
in law as it provides for no prohibition against alienation of the property
attached and, therefore, the alienation of the immovable property by way
of sale in favour of the plaintiff is valid.

12. The point therefore that arises for determination in this case is whether
the sale of immovable property subject to an attachment before judgment
providing for no prohibition against alienation of the property attached is
invalid.

13. The solution to the aforesaid problem consists in examining or

scrutinising the scheme of the code in so far as it relates to the attachment
before judgment.

14. section 64 of the Code of Civil Procedure, which deals with private
alienation of property after attachment to be void, provides, that where an
attachment has been made, any-private transfer or delivery, of the property
attached contrary to such attachment, shall be void as against all claims
enforceable under the attachment.

15. Order XXXVIII of the Code of Civil Procedure deals with arrest and
attachment before Judgment, Rule 5(1) of which provides that where, at
any stage of a suit the court is satisfied, by affidavit or otherwise, that the
defendant, with intent to obstruct or delay the execution of any decree that
may be passed against him, (a) is about to dispose of the whole or any part
of his property, or (b) is about to remove the whole or any part of his
property from the local limits of the jurisdiction of the court, the court may
direct the defendant, within a time to be fixed by it, either to furnish
security, in such sum as may be specified in the order, to produce and
place at the disposal of the court, when required the said property or the
value of the same or such portion thereof as may be sufficient to satisfy the
decree, or to appear and show cause why he should not furnish security.
As per sub-rule (2) thereof, the plaintiff shall, unless the court otherwise
directs, specify the property required to be attached and the estimated
value thereof. The court may, under sub-rule (3), thereof also in the order
direct the conditional attachment of the whole or any portion of the
property so specified. Under rule 6(1) of the aforesaid order, where the
defendant fails to show cause why he should not furnish security, or fails
to furnish the security, required within the time fixed by the court, the
court may order that the property specified or such portion thereof as
appears sufficient to satisfy any decree which may be passed in the suit, be
attached.

16. Rule 7 of Order XXXVIII provides for the mode of making attachment
and reads thus:—

“7. Save as otherwise expressly provided, the attachment shall be made in

the manner provided for the attachment of property in execution of a
decree”.

17. The property in the present case is immovable property.

18. Then, Order XXI of the Code of Civil Procedure, by rule 54 provides
for the attachment of immovable property, which, in so far as it material,
reads thus:—

“54(1). where the property is immoveable, the attachment shall be made

by an order prohibiting the judgment-debtor from transferring or charging
the property in any way, and all persons from taking any benefit from such
transfer or charges”.

19. As per sub-rule (2) of the aforesaid rule 54, the order shall be
proclaimed at some place on or adjacent to such property by beat of drum
or other customary mode. A copy of the order shall be affixed on a
conspicuous part of the property and on conspicuous part of the court
house. The rest of the rule deals with the method and the manner of fixing
such notice.

20. Under Section 121 of the Code, the rules in the first Schedule shall
have effect, as if enacted in the body of the Code until annulled or altered
in accordance with the provisions of Part X.

21. Order XLVIII by Rule 3 C.P.C provides that the form given in the
appendices, with such variation as the circumstances of each, case may
require, shall be used for the purposes therein mentioned.

22. Form No. 5 in Appendix ‘F’ provides for the attachment before
judgment, with order to call for security for fulfilment of decree, under
order 38, Rule 5 C.P.C and provides for the attachment under the
conditions stated both in that Order 38 Rule 5 as well as in that form No.
5. This was the form that was adopted in the present case while effecting
the order of attachment before judgment of the immovable property in
question.

23. Form No. 7-A deals with an attachment of immoveable property before
judgment. It contains, in the circumstances stated therein, a direction by
which the defendant is prohibited and restrained, until further orders of the
court, from transferring or charging the properties described in the
schedule annexed thereto, by sale, gift or otherwise and that all persons be,
and that they are thereby prohibited and restrained from receiving the same
by purchase, gift or otherwise. This form was admittedly not used in this
case.

24. We shall, then, refer to Form No. 24 in Appendix ‘E’, dealing with
attachment in execution, prohibitory order, where the property consists of
immoveable property. This form refers to Order 21, Rule 54. The form is
addressed to the defendant, stating that the defendant is prohibited and
restrained, until further orders of the court, from transferring or charging
the property specified in the schedule annexed thereto, by sale, gift or
otherwise and that all persons to be and that they are thereby prohibited
from receiving the same by purchase, gift or otherwise.

25. These are the applicable provisions of law and forms governing the
issuance of attachment before judgement in so far as it relates to
immoveable property.

26. What is manifest from a scrutiny of the aforesaid provisions of law,

pertaining to attachment before judgment of immoveable property, is that
any private transfer or delivery of the property attached contrary to such
attachment shall be void as against all claims enforceable under the
attachment, as per section 64 of the Code of Civil Procedure. Whereas
Rules 5 and 6 of Order 38 C.P.C provide for the circumstances and
conditions subject to which an order of attachment before judgment shall
have to be made. Rule 7 thereof provides for the mode of making
attachment, as per which the attachment shall have to be in the manner
provided for the attachment of property in execution of a decree. The
provisions relating to attached property in execution of a decree are not
contained in Order 38 and that was he reason why by way of what is called
‘referential legislation’, reference is made to the manner providing for the
attachment of property in execution of a decree as applicable to the
manner of attachment under Order 38 C.P.C This device by way of
referential legislation is intended with a view to obviate the necessity of
bodily incorporating the provisions contained in Rule 54 of Order 21
C.P.C into Order 38, particularly Rules 5, 6 and 7 thereof, which deal
with attachment before judgment of immoveable property,

REFERENTIAL LEGISLATION - ORDER 38 RULE 7 & Order 21,

Rule 54 of the Code of Civil Procedure

27. The classic exposition of this doctrine of Referential Legislation is

propounded in clear terms by Lord Esher, Master of Rolls, in the year
1866 in In Re Wood's Estate Exparte Her Majesty's Commissioners of
Works And Buildings ((1) (1886) 31, L.R Ch.D p. 607), as follows:—

“………………It is to put them into the Act of 1855 just as if they had
been written into it for the first time. If a subsequent Act brings into itself
by reference some of the clauses of a former Act the legal effect of that, as
has often been held, is to write those sections into the new Act just as if
they had been actually written in it with the pen, or printed in it, and, the
moment you have those clauses in the later Act, you have no occasion to
refer to the former Act at all. For all practical purposes, therefore, those
sections of the Act of 1840 are to be dealt with as if they were actually in
the Act of 1855”.
28. Speaking about the Legislative practice to incorporate by reference, the
Supreme Court of India observed in A.T Corpn. v. Assistant Collector,
Customs (2) ((1972) 1 SCC 553 : AIR 1972 S.C p. 648 at 654) of the
report, thus:—

“It is a well accepted Legislative practice to incorporate by reference, if

the Legislature so chooses, the provisions of some other Act in so far as
they are relevant for the purposes of and in furtherence of the scheme and
objects of that Act…………………”.

29. This practice is prevalent even in the United States of America, as the
following passage occurs in the decision of Mr. Justice Senford in Engel
v. Davelport (3) ((1925) 70 L.Ed 813 at 817) of the report:—

“The adoption of an earlier statute by reference makes it as much apart of

the later act as though it had been incorporated at full length………………
It brings into the later act “all that is fairly covered by
reference”…………………that is to say all the provisions of the former
act which, from the nature of the subject-matter, are applicable to the later
act”.

30. In the American jurisprudence, Vol. 50, at page 58, the following
passage appears;—

“The adoption of an earlier statute by reference makes it as much a part of

the later Act as though it had been incorporated at full length”.

31. We may note the following passage from the Halsbury's Laws of
England, third edition, Volume 36, at page 404;
“Where a statute incorporates by reference the whole or any part of an
earlier statute, the provisions so incorporated are in general to be construed
as they would be if set out in full in the later statute”.

32. Craies on Statute Law, Seventh Edition, at page 360, observed thus:—

“The effect of incorporating one act with another is presumably to make

them parts of the same code”.

33. No doubt, the aforesaid passages deal with the incorporation of one
Act into another, the provisions of Order 21, Rule 54 are required to be
dealt as forming an integral part of the scheme pertaining to attachment
before judgment of property, as Rule 7 of Order 38, which says
attachment shall be made in the manner provided for the attachment of
property in execution of a decree, indubitably discloses. Therefore, we can
never comprehend the nature, scope and the ambit of the concept of
‘attachment before judgment’ merely by looking into the provisions
contained in Order 38, particularly rules 5, 6, and 7 contained therein, and
the forms 5, 6 and 7 in Appendix ‘F’ made therein, without reference to
the provision contained in Order 21 Rule 54 providing for attachment of
immoveable property in execution of a decree, and Form No. 24 in
Appendix ‘E’.

34. The order of attachment under Order 38, particularly under rules 5 and
6 thereof, is one thing and the making of that attachment is entirely a
different thing. So far as the method and the manner for the attachment of
immoveable property is concerned, we have got to refer to Order 21, Rule
54 and Form No. 24 in Appendix ‘E’ without which the concept of
attachment before judgment of immoveable property can never be said to
be complete. Therefore, no property can be said to have been declared
attached under Order 38 of the Code of Civil Procedure, unless first the
order for attachment has been made and thereafter, in execution of that
order, the other things prescribed in the rules in the code have been
complied with. Where the property is immoveable, the attachment, in
terms of Order 21, Rule 54 shall have to be made by an order prohibiting
the judgment-debtor from transferring or charging the property in any way,
and all persons from taking any benefit from such transfer or charge, and
mere making of order in those terms is not sufficient to effectuate the
concept of attachment of property before judgment.

35. The order of attachment shall have to be proclaimed at some place,

following the rules providing for the affixture of that notice, as
contemplated under sub-rule (2) of rule 54 of Order 21 C.P.C What is
important is that the order of attachment should contain the prohibition
against alienation of the property attached and consequently the
proclamation also as provided for in Form 24 in Appendix ‘E’, should
contain a direction to the defendant prohibiting or restraining him from
alienating the property attached by sale, gift or otherwise and all the
persons from receiving the same by purchase, gift or otherwise.

36. If the order of attachment does not contain any prohibition against
alienation of the property attached, the attachment is invalid.

37. If such an order of attachment contains such a prohibition but the

proclamation omits such a prohibition, even then, the attachment is
invalid. If the order of attachment does not contain a prohibition, the
proclamation containing such a provisions, if made, will not be consonant
with the order and therefore the attachment cannot be said to be according
to law.

38. While dealing with the subject matter pertaining to attachment before
judgment of immoveable property, the court shall have to bear in mind not
merely the form of the order but also the substance of the order and the
proclamations issued pursuant to those orders.

39. The forms given in the Appendices to the Code of Civil Procedure can
be used as the circumstances of each case may require for the purposes
mentioned therein. Therefore, there is no rigid or inflexible rule that the
applicable form mentioned in the appendices should be followed without
variation. If Form No. 5 in Appendix ‘F’ is not sufficient, Form No. 24 in
Appendix ‘E’ with appropriate modifications can be utilised to effectuate
the order of attachment before judgment of immoveable property. The
question of Form No. 7-A being brought into being only in 1940, thus
assumes little or no importance in the context of the above discussion.

40. I am supported in the aforesaid view of mine by a decision of the High

Court of Andhra in Venkata Subba Rao v. Krishnayya (4) (AIR 1956
Andhra 59). The Division Bench of the High Court of Andhra dealt with a
case of attachment. An order or attachment before judgment was made in
that case in O.S No. 37 of 1933 on the file of the District Court, Krishna,
in the following terms: “Attach and notice to 25-10-1933”. A warrant was
framed and issued in the terms of Form No. 5 of Appendix ‘F’ to the Code
of Civil Procedure. A notice also in the same terms was issued for service
on the defendant in accordance with Form No. 5 of Appendix ‘F’ C.P.C
Meanwhile, the mortgage Ex. A.1, was executed by the 1st defendant
during the subsistence of that attachment, on 23-7-1934. The question
raised there was whether the mortgage, Ex. A.1, was void under section 64
of the Code of Civil Procedure, having been effected contrary to the
attachment before judgment made in the case. The contention raised for
the appellants in that case, that an attachment before judgment need not
comply with all the requirements of Order 21, Rule 54 C.P.C was
repelled by the Division Bench. The Division Bench held, at page 60 of
the report thus:—

“Instead of incorporating in extenso the provisions of Order 21, Rules 43

to 54 in O. 38, the framers of the Code made a genaral provision in O. 38,
Rule 7 that an attachment of property before judgment shall be effected in
the same manner as an attachment of property in execution.

xxxxxxxxxxxx

………23 are unable to accept the contention of the appellant that an

attachment before judgment need not comply with all the requirements of
O. 21, R. 54, C.P.C”

41. The Division Bench as a matter of fact observed that the attachment
was not in conformity with Order 21, Rule 54 CPC in the sense that there
was no order prohibiting the defendant therein from transferring or
charging the properties sought to be attached and other persons from
taking any benefit from such transfer or charge as required by Order 21,
Rule 53, CPC. There being no such prohibitory order the Bench held, it
could not obviously have been published in the manner prescribed
by Order 21, Rule 54 CPC.

42. It may not be out of place, in this connection, to refer to the decision of
the Judicial Committee of the Privy Council in Muthaiah Chetty v.
Palaniappa Chetty (5) (AIR 1928 P.C 139). Lord shaw referring to the
order of attachment, in the context of Order 21, Rule 54, C.P.C observed,
at pages 141 and 142 of the report, thus:—

“The order is one thing, the attachment is another. No property can be

declared to be attached unless first the order for attachment has been
issued, and secondly in execution of that order the other things prescribed
by the rules in the Code have been done”.

43. Bearing in mind the aforesaid discussion we shall examine the facts of
the present case. Syed Ahmed filed the suit O.S No. 68/1964 on the file of
the III Assistant Judge, City Civil Court, Hyderabad on 20-3-1964, and
obtained an order of attachment before judgment on 24-3-1964, the
conditional order (Ex. C.7) for attachment of the property, reads thus:—

“Heard the advocate for petitioner. A conditional order of attachment will

issue in respect to the house, mentioned in the application. If the defendant
offered security, the attachment will not be made”.

44. Pursuant to the conditional order of attachment, the court issued

warrant of attachment before judgment in Form No. 5, Appendix ‘F’ of
Code of Civil Procedure, marked as Ex. C-5, which reads thus;—

“Whereas the plaintiff has proved to the satisfaction of the court that the
defendant in the above suit is contemplating to sell his only house bearing
Municipal No. 5-6-260 and 260/2, detailed below and that he has no other
property to realise the decree that may be passed.

These are to command you to call upon the said defendant either to furnish
security for the sum of Rs. 2,000/- to produce and place at the disposal of
this court when required or the value thereof or such portion of the value
as may be sufficient to satisfy any decree that may be passed against him,
and appear and show cause why he should not furnish security and you are
further ordered to attach the side defendant's property and keep the same
under safe custody until the further return this warrant on or before the
seventh (7) day of April, 1964, with an endorsement certifying the date on
which it has been executed or the reason why it has not been executed.

Note.— If the respondent furnishes security to the extent of the amount of

attachment the warrant shall not be executed.

Given under my hand and the seal of the court this, 25th day of March,
1964”.

Sd/-III Asst. Judge,

City Civil Court, 25-3-1964”

45. The report of Amin is marked as Ex. C, 6 which reads thus:—

Shri Syed Ahmed, plaintiff point out the house under attachment, the
house no mentioned in the warrant and boundaries 5-6-260, 5-6-260/2,
situated at Agapura, found correct.

The defendant Haji Mohammad Abdul Wahab was not present hence the
said house attached as per the enclosed panchanama.
Returned duty executed.

Sd. Bailiff,

25-3-1964”.

46. It is seen from the order of attachment that it does not contain any
direction prohibiting the defendant or the judgment-debtor from
transferring the property in any way and all persons from taking benefit
from such transfer. Nor the warrant of attachment written under Form No.
5 of Appendix ‘F’ contained such prohibition prohibiting Haji Mohammad
Abdul wahab, the vendor of the respondent from alienating the property or
any other person purchasing the property from the owner. Therefore
neither the order of attachment nor the warrant of attachment prevent the
vendor of the respondent from selling the property to the plaintiff-
respondent. Therefore the sale effected in favour of the plaintiff-
respondent on 30th of October, 1964 is not in valid because it does not
involve any contravention of any prohibition contained in the attachment
order pertaining to the property in question. Nor is there any prohibition
prohibiting the persons from alienating it, or purchases from purchasing
the same.

47. Usage or practice opposed to law whether it can be given effect to;—

48. The learned counsel for the petitioner contended that the Form that is
in vogue at Hyderabad is only form No. 5 of Appendix ‘F’, C.P.C and
Form 7-A though brought into being in the year 1941 in Madras was not
brought into force in Hyderabad and therefore Form No. 7-A, of Appendix
‘F’ should not be applied to the facts of the case and at any rate for the
mistake committed by the court the party should not be allowed to suffer.
As has already been observed, if the attachment before judgment of any
immoveable property is to be effective, the order of attachment should
contain a direction prohibiting the judgment-debtor from selling the
property and any person that may purchase from purchasing the same. The
order of attachment and the warrant of attachment in this case do not
contain such an order of attachment and the warrant of attachment in case
do not contain such an order of prohibition. Adherence to Form 5 by itself
is not sufficient to effectuate an order of attachment prohibiting alienation
of the, property which was the subject matter of attachment. Therefore any
practice opposed to law cannot be given effect to in a court law however,
hoary and venerable it be. By virtue of preferential legislation
the provisions contained in Order 21 Rule 54 CPC, ought to be deemed
to have been incorporated in Order 38 which provides for attachment
before judgment along with Form 24 in Appendix ‘E’ to CPC,
under Order 21, Rule 54. Therefore it is not open to the appellant to
contend for a position that merely because Form 7-A was not in
vogue Order 21, Rule 54 of the Code of Civil Procedure should not be
applied to the facts of the present case.

49. I am of the opinion that the attachment before judgment under Order
38 C.P.C of any immovable property to be effective must be shown to be
quite inconformity with the provisions contained in Order 21, Rule 54
C.P.C read with Form 24 of Appendix ‘E’ to C.P.C In the present case a
mere conditional order of attachment was passed requiring the defendant
to furnish security and that attachment was not in accordance with the
procedure prescribed under Order 21, Rule 54 C.P.C Therefore there is
no attachment before judgment of immoveable property in the eye of law
issued under Order 38 of the Code of Civil Procedure.

50. Yet another contention was raised by the learned counsel for the
appellant that in the present case the concerned bailiff proclaimed that the
property should not be purchased by anybody, that the judgment-debtor
should not sell the property though the order, and warrant of attachment
does not contain any prohibition against the alienation. The prohibition
that is contained in the proclamation by the bailiff is practically of no
avail.

51. Agreeing with the lower courts I find that the attachment before the
judgment in this case is bad in law and the sale effected in favour of the
plaintiff-respondent on 30th of October, 1964 is valid.

52. Another contention was raised by the learned counsel for the appellant
that the civil court has no jurisdiction to adjudicate upon the matter as the
matter is one pertaining to the eviction of a tenant by the landlord. In
support of his contention my attention has been drawn to a decision of the
Supreme Court in Gurucharan Singh v. Kamala Singh ((1976) 2 SCC
152 : AIR 1977 SC 5) Krishna Iyer, J., speaking for the Supreme court
observed at page 10 paragraph 11 thus:—

“It was well settled that a pure question of law going to the root of the case
and based on undisputed or proved facts could be raised even before the
court of last resort provided the opposite side was not taken by surprise or
otherwise unfairly prejudiced”.
53. The Supreme Court was of the view that the new plea there sprang
from the common case of the parties. In the present case, it is stated in
paragraph 4 of the plaint that the defendant and his father late Sri Mohd.
Moulana were the tenants of the said vendor of the plaintiff i.e Sri Haji
Mohammad Abdul Wahab, paying Rs. 12/- per mensem towards rent. It is
also further stated in the plaint that the defendant as well as his late father
agreed and promised to pay the rent to the plaintiff from 1-11-1964 and
also to execute a fresh rental deed in favour of the plaintiff. But the
defendant did not pay a pie towards rents to the plaintiff since 1-11-1934
and hence fell in arrears willfully inspite of many a demand made by the
plaintiff. The defendant in his written statement stated that he was never
the tenant of the plaintiff as alleged. The allegation that this defendant
promised to pay the rent to the plaintiff was also denied. It is stated in
paragraph 3 of the written statement of the 1st defendant that there was no
relationship of tenant and landlord between the defendant and the plaintiff.
The 1st defendant asserted that he is the tenant of Putli Begum, who is the
2nd defendant. Therefore, the pleadings disclose that the question whether
the first defendant is or is not a tenant of the landlord, is a disputed
question and according to the aforesaid Supreme Court decision it is not a
common case that the first defendant is the tenant of the landlord so as to
permit the plea of jurisdiction of the Civil Court at this stage to be raised.
Moreover Sri Waghray, the learned counsel for the respondent, submits
that the plea of bar of jurisdiction of the Civil Court, on the ground that it
is the Rent Controller that had got jurisdiction to go into the matter was
not raised in the grounds of appeal. I am, therefore, not justified in
permitting the learned counsel for the appellant to raise the plea of bar of
jurisdiction of the civil court.

54. For the aforesaid reasons I am satisfied that there are no merits in the
Second Appeal and it is dismissed with costs.