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Mohan Lal Goela and ors. Vs. Kishan and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSuit No. 532 of 1972
Judge
Reported inAIR1978Delhi63; 1978RLR300
ActsDelhi Rent control Act, 1958 - Sections 2; Transfer of Property Act, 1882 - Sections 106
AppellantMohan Lal Goela and ors.
RespondentKishan and ors.
Advocates: H.L. Sabarwal,; Y.K. Sabharwal,; R.K. Makhija and;
Cases ReferredKedar Nath v. Mohini Devi (supra
Excerpt:
(i) tenancy - termination - section 2 of delhi rent control act, 1958 and section 106 of transfer of property act, 1882 - tenancy in favor of a terminated by notice to quit - whether acceptance of amount equivalent to rent by landlord from tenant in possession be regarded as evidence of new agreement of tenancy - facts revealed lease had been determined by notice to quit - tenant enjoyed statutory immunity from eviction because of rent act - tenant failed to prove that landlord accepted rent not as statutory tenant but only as legal rent indicating his assent to tenant's continuing in possession - as such acceptance of amount equivalent to rent cannot be regarded as evidence of new agreement of tenancy. (ii) possession - whether heirs of a inherit tenancy rights in law - right of tenant.....avadh behari rohatgi (1) one shiv pershad gupta was the tenant of shop no. 285 (old) 625 to 632 (new) in chandni chowk, delhi at a monthly rent of rs. 270.00 . he died on july 30, 1968, leaving behind him a widow, two sons and two daughters. (2) the landlord mohan lal goela on november 2, 1968 brought a suit for possession and mesne profits in the court of the commercial sub judge against anchibai the widow of shiv pershad gupta, his two sons sri kishan and shiv shankar and his two daughters. while the suit was pending in the court- of the commercial sub judge anchi bai died on september 15,1974- the plaint was amended. her name was deleted from the array of parties. the suit continued against the sons and e daughers of shiv pershad the original tenant. (3) the defendants raised the.....
Judgment:

Avadh Behari Rohatgi

(1) One Shiv Pershad Gupta was the tenant of shop No. 285 (old) 625 to 632 (new) in Chandni Chowk, Delhi at a monthly rent of Rs. 270.00 . He died on July 30, 1968, leaving behind him a widow, two sons and two daughters.

(2) The landlord Mohan Lal Goela on November 2, 1968 brought a suit for possession and mesne profits in the court of the Commercial Sub Judge against Anchibai the widow of Shiv Pershad Gupta, his two sons Sri Kishan and Shiv Shankar and his two daughters. While the suit was pending in the court- of the Commercial Sub Judge Anchi Bai died on September 15,1974- The plaint was amended. Her name was deleted from the array of parties. The suit continued against the sons and E daughers of Shiv Pershad the original tenant.

(3) The defendants raised the objection regarding the valuation of the suit. Finally the parties agreed that the valuation of the property be fixed at Rs. 51,000.00 . The court accordingly made an order fixing - Rs. 51,000.00 as the valuation of the suit for purposes of court-fee and jurisdiction. This was beyond the pecuniary jurisdiction of that court. On December Ii, 1972, the court returned the plaint. On that very date the plaint was refiled in this court.

(4) The plaintiff Goela has instituted the suit on the allegation that Shiv Pershad Gupta the husband of Anchi Bai and the father of the above mentioned four children was the tenant and his tenancy was determined by a notice of termination dated March 17, 1964. It is said that thereupon Shiv Pershad become a statutory tenant.

(5) Here I may usefully refer to an earlier proceeding which figures prominently in this litigation. After service of notice of termination of tenancy an eviction petition was filed on August 22, 1964 by the landlord against Shiv Pershad Gupta before the Rent Controller. That petition was founded on two grounds : (1) non-payment of rent and (2) sub-letting of premises. The Additional Controller by his order dated March 12, 1968 dismissed the petition. Rent was paid. thereforee, that ground did not survive. Subletting was held not proved.

(6) Against the order dismissing the petition the landlord went in appeal to the Rent Control Tribunal. On May 7, 1968 the appeal was filed. As it happened the tenant Shiv Pershad died on July 30, 1968. The landlord thereforee withdrew the appeal on September 12, 1968. His counsel made a statement before the Tribunal that as nothing developed on the heirs of the tenant he would like to withdraw the appeal. The appeal was accordingly dismissed as withdrawn.

(7) On November 2, 1968, the present suit for possession and mesne profits was brought, as I have said. The plaintiff's case in the plaint is that Shiv Pershad Gupta was his tenant, that his tenancy was terminated by a notice to quit, that as Shiv Pershad became a statutory tenant his heirs have no right to remain in possession of the premises. It is said that the defendants possession being unauthorised the landlord is entitled to a decree for possession and mesne profits. This in substance is the claim.

(8) The defendants contest the suit on a variety of grounds. The principal defense is that the defendants being the heirs of Shiv Pershad Gupta have inherited the tenancy and are entitled to continue as tenants. Other defenses have also been raised. The defendants' defense is reflected in the following issues framed on August 20, 1975.

1. Whether the plaint is properly valued for purposes of courtfee and jurisdiction? 2. Can the defendants challenge the valuation in view of the agreed valuation fixed by the Court of Commercial SubJudge, Delhi? 3. Had the tenancy of Shri Shiv Pershad Gupta been terminated, if so, its effect 4. Was Smt. Anchi Bai tenant of the plaintiff 5. Is the plea of the defendants covered by issue No. 4 barred by principles of rest Judicata? 6. Was any tenancy created by the plaintiff in favor of the defendants after the death of Shri Shiv Pershad Gupta? 7. At what rate is the plaintiff entitled to recover rent/mesne profits and for what period 8 Is the plaintiff entitled to the condensation/exclusion of the period 2-11-1968 to 11-12-1972 in computing the period of limitation? 9. What is the effect of the property being in slum area on the present suit 10. Relief. Issues 1 and 2

(9) These two issues need not detain us. In the Court of the Commercial Sub Judge the valuation question was raised. It was settled by agreement. The defendants and their counsel made a statement (P-7) agreeing to Rs. 51,000.00 as the value of the shop. To this the plaintiff Goela agreed. The Local Commissioner appointed for the purpose of determining the valuation consequently made his report (P-8) on the basis of the agreement. On September 18, 1971, the court made an order (P-9) fixing Rs. 51,000.00 as the valuation of the suit. The Subordinate Judge directed the plaintiff to make up the court-fee which the plaintiff did. The defendants objected to this procedure. They came in revision to this court. In revision the defendants contended that the court had no jurisdiction to make an order for payment of the court-fee. P. S. Safeer J. decided that the proper course was to return the plaint. On December Ii, 1970, the plaint was returned, and it was refiled in this court.

(10) I do not think the objection to the valuation of the suit is any longer open to the defendants. The plaintiff had originally valued the suit at Rs. 3726.00 for the relief of possession. The defendants objected to it. Both the parties agreed that the correct valuation will be Rs. 51,000.00 The court adopted it and passed an order. The defendants cannot challenge an order to which they had agreed, though it was passed by the court of the Commercial Sub Judge and riot this court. But that in my opinion will not make any difference. I hold that the question of valuation is concluded. The defendants can no longer object to the valuation of the suit. Issues I and 2 are thereforee decided against the defendants.

(11) Question of Co-ownership : This question is not put in issuesas it was raised at a late stage. Counsel addressed argument as I allowed it to be raised.

(12) During the pendency of the suit in this court the defendants made an application on January 21, 1977 (JA 293 of 1977) raising an objection to the plaintiff Mohan Lal Goela's right to file the suit as a sole plaintiff. The objection is that in the suit originally instituted on November 2, 1968, the plaintiff claims himself to be the sole owner of the property. According to the defendants Goela's wife and his three sons are also co-owners of the suit property. It is said that the plaintiff is not the sole owner but only an owner to the extent of l/5th share. The plaintiff admits that with effect from March 18, 1969 he, his wife and three sons have been shown as co-owners, each having 1/5th share and that he made statements to this effect before the income-tax and Municipal authorities. The plaintiff contended that as a co-owner he is entitled to file the suit. He also moved an application for leave to amend the plaint. I allowed the plaintiff to amend the plaint. The wife of Goela and his three sons have n,ow been joined as the plaintiffs to the suit. They have adopted all the proceedings taken by Mohan Lal Goela as there is no dispute inter se between the parties regarding this property.

(13) The defendants' contention is that the joinder of the plaintiffs is not bona fide and that -the suit is not maintainable. On November 2,1968, when the suit was filed the plaintiff Mohan Lal Goela was the sole plaintiff. Now it is contended that he could not bring the suit alone. Assuming that he is a co-owner of the property, as is now the admitted case, Mohan Lal Goela in my opinion had a right to bring the suit in his own name and was entitled to continue it without impleading his wife and sons. A co-owner is as much an owner of the property as any sole owner of the property is. Jurisprudentially it is not correct to say that a coowner of a property is not its owner. He Owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property. The position will only change when partition takes place. It is thereforee not possible to accept the submission that the plaintiff Mohan Lal Goela who is admittedly the landlord and the co-owner of the premises is not the owner of the premises- It is not necessary to establish that the plaintiff is the only owner of the property as long as be is a co-owner of the property being at the same time the acknowledged landlord of the tenant.

(14) The defendants' contention cannot be accepted. Firstly, the plea pertains to the domain of the frame of the suit as if the suit is bad for non-joinder of the other plaintiffs. Such a plea should have been raised for whatever it is worth at the earliest opportunity. It was not done. It was raised on January 27, 1977 by means of an application. It was said that the plaintiff has partitioned the property and the plaintiff was not the sole owner of the property. In his reply the. plaintiff Mohan Lal admitted that before the incometax officer he had made a statement that his wife and three sons had interest in the property besides himself. But he denied that there was any partition or that any partition deed was executed. On March 2, 1977, the plaintiff Mohan Lal Goela made an application under Order I rule 10, Code of Civil procedure that he may be allowed to join his wife and three sons. I allowed this application on April 25, 1977. The plaintiff has amended his plaint. The defendants have filed their fresh written statement to the amended plaint.

(15) Secondly, the relation between the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. Shiv Pershad the tenant could not have denied that the landlord had no title to the premises at the commencement of the tenancy (See s. 116 of the Evidence Act). Under the general law in a suit between landlord and tenant the question of title to the leased property is irrelevant. The suit cannot be thrown out on account of non-pleading of other co-owners as such. There is no dispute that the plaintiff is the landlord. The defendants acknowledged this position. It was only on January 21, 1977 that they pleaded that besides the plaintiff, his wife and sons also had interest in the property. The plea that one co-owner cannot sue for eviction even if the other coowners have no objection is entirely without force. Mohan Lal Goela was admittedly the landlord of the premises. Shiv Pershad Gupta was admittedly his tenant till his (Shiv Pershad's) tenancy was terminated. Mohan Lal Goela was thereforee entitled to institute the proceedings. The absence of other co-oweners on record did not disentitle Mohan Lal Goela from suing. That this is the position in law has now been established beyond doubt by the two decisions of the Supreme Court : See Sri Ram Pasricha v. Jagannath and others : [1977]1SCR395 and Smt. Kanta Goel v. B. P. Pathak, : [1977]3SCR412 .

(16) Counsel for the defendants referred me to a number of authorities in support of his submission that the suit by Mohan Lal Goela was not competent. I need not notice those authorities as the legal position has now been established beyond doubt by the two recent decisions of the Supreme Court to which I have made a reference. In any event now that the wife and sons have been imp leaded, the objection does not survive. I would thereforee hold that the present suit is properly constituted. Issues 4 and 5.

(17) The defendants claim that Anchi Bai was a tenant of the plaintiff Mohan Lal Goela. But in the course of arguments Mr. R. K. Makhija,learned counsel for the defendants, did not press these issues. Anchi Bai's claim was abandoned. Apart from this Anchi Bai's claim cannot be pressed in view of judgment of the Commercial Sub Judge dated April 29, 1955(P-3).ln a suit instituted on June 4, 1954 Anchi Bai claimed that she was the tenant in the premises. The claim was rejected by the court. The suit was dismissed. The judgment dated April 29, 1955 will operate as rest judicata. I would thereforee decide these issues 4 and 5 against the defendants.Issues 3 and 6

(18) These are the central issues in the case. The first question is :

Was the tenancy of Shiv Pershad Gupta terminated If so how and to what effect ?

(19) The tenancy in question was created in 1948. The rent note (P-18) dated December 18, 1948 executed by Shiv Pershad Gupta in favor of Mohan Lal Goela establishes it. On September 4, 1959, Mohan Lal Goela served a notice of increase of rent (P-19). The receipt of this notice, though it is denied in the pleadings, clearly stands acknowledged as the defendants in their list of reliance dated February 14, 1974 themselves rely on the 'letter dated 4-9-1959 for increase of rent from Mohan Lal Goela and Mohd. Yakub to Shiv Pershad of S. S. Gupta and Co.' This figures at item No. 15 in the list. Mohd. Yakub Was the co-owner of the property and later on his interest in the property was purchased by Mohan Lal Goela. As a result of the notice the rent of the shop was increased from Rs. 270.00 per month to Rs. 310.50 paise per month.

(20) On March 17, 1964, Mohan Lal Goela through his counsel Shri H. S. Tyagi, Advocate served a notice to quit (P-12) on Shiv Pershad. By this notice the tenant's tenancy was determined. Shri H. S. Tyagi has appeared in the witness box to prove the notice. That this notice was served on the tenant Shiv Pershad is not open to doubt as his counsel Shri D. N. Raizada Advocate sent a reply to the notice on April 24, 1964 (P-13). Shri Daya Narain Raizada has appeared in the witness box. He admitted that reply (P-13) was sent by him. He was also a counsel in the ejectment suit instituted on August 22, 1964 by Mohan Lal Goela against Shiv Pershad. The written statement was signed by Mr. Raizada and his clients Shiv Pershad Gupta .and Smt. Anchi Bai. P-5 is the certified copy of the reply to the ejectment application dated November 19, 1964.

(21) The notice of termination of tenancy is dated March 17, 1964. It is addressed to Shiv Pershad Gupta. It says that Shiv Pershad Gupta is a tenant under Mohan Lal Goela and Mohd. Yahib on a monthly rent of Rs. 270.00 per month, that the tenancy commenced on 1st of every calendar month and ends on the last date of that month. It further says that Mohan Lal Goela has purchased l/3rd share of Mohd. Yakub on August 24, 1961 and consequently Mohan Lal Goela was the landlord and entitled to recover the entire amount of rent. It also refers to the notice of increase of rent dated September 4, 1959. Then a claim for rent is made. At the end it is said :

'YOUR tenancy is thereforee terminated and you are called upon to vacate the premises on 30-4-64.'

(22) The notice gives clear 30 days to the tenant to vacate the premises. It expires with the end of the month of tenancy. It is a valid notice. It complies with the requirement of s. 106 of the Transfer of Property Act. Its service on the tenant was duly proved. The tenancy stood determined on the service of the notice in the manner provided by s. 111(h) of the Transfer of Property Act. This meant the determination of the tenant's contractual interest. He became a statutory tenant. Till his death Shiv Pershad enjoyed the statutory protection.

(23) In reply dated April 24, 1964 (P-13) sent by Shri D.N.Raizada, Advocate it was not disputed that Shiv Pershad Gupta was the sole proprietor of S. S. Gupta and Co. and the tenancy was from month to month according to the English calendar.

(24) Now the only objection raised to the validity of the notice is that this notice has exhausted itself as ejectment proceedings were brought on its basis before the Rent Controller on August 22, 1964. Counsel says that this notice having been availed of once by the landlord it cannot be the basis of fresh proceedings in the present suit. It will be recalled that the Additional Rent Controller dismissed the ejectment petition on March 12, 1968. It is urged that the eviction case against Shiv Pershad Gupta having been dismissed by the Rent Controller the notice under s. 106 of the Transfer of Property Act was exhausted and that a fresh suit requires a fresh notice. In this connection I was referred to Makhanlal v. Mst. Chandrawati, (per Gopinath J.). In that case the learned judge observed:

'THE suit against Behari Lal having been dismissed by this court a notice under s. 106 of the Transfer of Property Act ceased to have effect : See Halsbury Law of England, third edition. Volume 23 page 410, where the law has been stated thus:

If a landlord's application for possession fails, his notice determining the tenancy ceased to have effect.'

(25) It was argued in that case that the earlier suit against Behari Lal for ejectment instituted after serving a notice terminating his tenancy having failed no fresh suit against the defendants could be filed without terminating their tenancy afresh. The learned judge accepted this contention. He said :

'IN find force in this contention. The Suit against Behari Lal having been dismissed by the court the notice under s. 106 of the Transfer of Property Act ceased to have effect.'

(26) The learned judge relied upon Sakir Husain v. Sira) Beg, : AIR1974All193 in support of this view. I respectfully dissent from this view. Once a valid notice is served it is never exhausted. No law says that a notice is exhausted if the proceedings end in failure. The tenancy once determined is determined for ever. The landlord and the tenant may come together again and may by agreement, express or implied, continue the relationship of landlord and tenant. That is another thing but the doctrine that a notice is exhausted is in my opinion unknown to the law of India as laid down in the Transfer of Property Act. As Shah J. in Calcutta Cre- dit Corporation v. Happy Homes Ltd. : [1968]2SCR20 said:

'ONCE a notice is served determining the tenancy or showing an intention to quit on the expiry of the period of the notice the tenancy is at an end, unless with the consent of the other party to whom the notice is given the tenancy is agreed to be treated as subsisting.'

(27) S. 113 of the Transfer of Property Act contemplates waiver of the notice by any act on the part of the person giving it, if such an act shows an intention to treat the lease as subsisting and the other party gives his consent express or implied thereforee.

(28) Once a valid notice is given, the tenancy will inevitably be determined upon its expiration. The parties can waive the notice. The party to whom notice is given is entitled to insist upon it and it cannot be withdrawn without the consent of both. The consent, of the parties makes a new agreement. The parties can nullify the operation of the notice as to quitting, by agreeing upon a new tenancy, whether on the terms of the former or not, to commence from the time of its expiration.

(29) The proposition enunciated in Halsbury's Law of England is based on the statute law of that country. The statute law of England says that if landlord's application for possession fails his notice determing tenancy ceases to have effect. The foot note (f) at page 410 refers to the Landlord and Tenant Ac: (1954), s. 14(3). In Halsbury's Statutes of England (3rd ed.) Vol 18 this Act is reprinted at page 726. The relevant provision is as follows :

'IF before the expiration of the said period the landlord has made an application under the last foregoing section, but the result of the application, at the time when it is finally disposed of, is that no order is made, the landlord's notice shall cease to have effect;..................'

(30) thereforee, the proposition laid down in Halsbury's Laws of England (3rd ed.) Vol. 23 page 410 is inapplicable to India unless we have a similar statutory provision. If there is one thing certain in Indian law it is this the notice is not exhausted.

(31) I would thereforee hold that the notice dated March 17, 1974 validly terminated the tenancy of Shiv Pershad Gupta and the notice was not exhausted by reason of the fact that earlier eviction petition was dismissed.

(32) The defendants also plead an agreement with Mohan Lal Goela and say that he agreed to accept them as his tenants. The defendants have produced one Basant Kumar in support of the settlement. Basant Kumar Dw I has deposed that his shop is situated next to the shop of S. S. Gupta and Co. and in his presence there was a settlement. His words are :

'THERE was a talk between Mohan Lal Goela and Shiv Shankar and his elder brother sometime in the end of 1968 regarding rent. At that time M/s. S. S. Gupta & Co. were paying rent at the rate of Rs. 2701- per month. Mohanlal Goela wanted rent to be increased to Rs. 350.00 per month. All the four or five of us sat together and decided that the rent should be increased to Rs. 310.00 per month. Some payment was also made through cheque. The cheque was given to Mohan Lal Goela by Shiv Shankar.'

(33) I am not prepared to place any reliance on the testimony of this witness. He is also a tenant under Mohan Lal Goela and proceedings against him have been filed by the landlord and are pending before the competent authority (slum). This is not denied. In his crossexamination the witness admitted that the defendants did not obtain any receipt from Mohan Lal Goela for the rent paid to him. The defendant Shiv Shankar has also deposed about the settlement. He said that he agreed to pay Mohan Lal Goela at the rate of Rs. 310.00 with effect from August 1, 1968. In his evidence he stated :

'I paid rent to the plaintiff up to 31st October, 1968 at the above rates. I had issued him a cheque drawn on National and Grindlays Bank Ltd. That was a payee's account cheque. I had handed over that cheque to the plaintiff. I came to know from the bank officials that the plaintiff had deposited that cheque in his account in the bank. The amount of that cheque was debited to my account in the Bank. I never withdrew that amount from the bank. Nor any reverse entry was made in respect of that amount No request regarding making a reverse entry in respect of that amount was made to my bankers.'

(34) The settlement is sought to be proved with the help of a cheque of Rs. 2010.00 dated October 10, 1968. This cheque was deposited in the account of Mohan Lal Goela in the Union Bank of India on November 8, 1968. The money was credited to his account on November 9, 1968. When Goela came to know of this cheque he wrote to his bankers on November 2, 1970 that this cheque has been deposited in his account without his consent. The plaintiff Goela in his statement has denied that there was any talk regarding settlement bet- ween him and the defendants in the presence of Basant Kumar. He also denies the receipt of Rs. 2010.00 from Shiv Shankar.

(35) What appears to me is that the defendants deposited the cheque in the account of Goela in the Union Bank without his knowledge and consent. When the plaintiff came to know of it he raised an objection. He protested in writing to the bank. He refused to accept the cheque. There was correspondence. The entry was later on reversed by the bank.

(36) I cannot accept the theory of settlement for the simple reason that from 1954 litigation has been going on between the parties and thereforee there was no question of the recognition of the defendants as his tenants. Anchi Bai filed suit in 1954. In 1964 Goela launched eviction proceedings against Shiv Pershad before the Rent Controller. These came to an end in 1968. The landlord wanted to fight to the bitter end. In the Tribunal he declared that he will have his remedy elsewhere. Then he opened another front.

(37) On the slender evidence of a solitary witness Basant Kumar it is difficult to accept that a settlement took place. The plea of settlement is bogus. On October 10 it is alleged that there was a settlement. The cheque for Rs. 2010 is also dated October 10, 1968. It appears to have been deposited in the Union Bank on November 8, 1968. Merely depositing the cheque is not a recognition of a subsisting tenancy. What is important to nose is that there is no writing to prove the settlement. No receipt was obtained. The entry in Goela's account was ultimately reversed. This shows that the story of settlement is spurious.

(38) Mere acceptance of amounts equivalent to rent by a landlord from tenant in possession after a lease had been determined by a notice to quit and who enjoys statutory immunity from eviction because of the Rent Act cannot be regarded as evidence of a new agreement of 'tenancy. If the tenant asserts that the landlord accepted the rent not as statutory tenant but only as legal rent indicating his assent to the tenant's continuing in possession, it is for the tenant to establish it: See Bhawanji Lakhamshi and others vs. Himatlal Jamandas Dani and others : [1972]2SCR890 . On the facts of this case the defendants have failed to establish that the landlord assented to the creation of a new tenancy.

(39) Now I turn to the central question involved in the case. The chief issue is: Do the heirs of the tenant Shiv Pershad Gupta inherit the tenancy rights in law

(40) The Delhi Rent control Act (59 of 1958) was passed in 1958.In 1976 it was amended. The Parliament passed the Delhi Rent Control (Amendment) Act, 1976 which received the assent of the President on February 9,1976. The statement of objects and reasons says:

'THERE had been a persistent demand for amendments to the Act of 1958 with a view to conferring a right of tenancy on certain heirs/successors of a deceased statutory tenant so that they may be protected from eviction by the landlords.'

(41) As the Parliament was not in session the Delhi Rent Control (Amendment) Ordinance 1975 was promulgated on December I, 1975. On February 9, 1976 the Delhi Rent Control (Amendment) Act, 1976 (Act 18 of 1976) replaced the Ordinance.

(42) Section 2 of the principal Act defined a tenant. The Amending Act broadened the scope of the definition so as to include the following persons within the definition of tenant:

(A)spouse, (b) son or daughter, or where there are both son and daughter, both of them, (c) parents, (d) daughter-in-law, being the widow of his pre-deceased son as had been ordinarily living in the premises with the tenant as a member or members of his family up to the date of his death.

(43) The amending section 2 is a long section. It has three Explanationns : Explanationn I regulates the order of succession. Explanationn Ii deals with the case of a successor not financially dependent on the deceased person at the time of his death. Such a successor is given the right to continue in possession for a limited period of one year after the termination of the tenancy.

(44) Then comes Explanationn III. This Explanationn is rather important. It confers right on the enumerated successon to continue in possession after the termination of the tenancy.

(45) The Explanationns show that the right of a successor to continue in possession after the termination of tenancy is severely limited. It lays down:

(1)Asuccessor of the same category can continue in possession if the right of a member of his class to continue in possession after the termination of the tenancy is extinguished. For example if on his death, the son's right to continue in possession is extinguished the daughter can succeed. Both of them are of the 'same category'. (2) If there is no other successor of 'the same category the right to continue in possession is extinguished and does not pass on to any other successor specified in any tower category. (3) The right of every successor mentioned in Explanationn I, to continue in possession is personal and, on the death of the successor, does not devolve on his heirs.'

(46) The object of the amendment is to widen the definition of tenant'. It confers a right on certain persons mentioned in Explanationn I to continue in possession after the termination of the tenancy of the tenant.

(47) It comes to this. A tenant includes a person continuing in possession after the termination of his tenancy. Though his tenancy is terminated in one of the modes mentioned in Section 111 of the transfer of Property Act the Act of 1958 confers protection to him. During the life time he cannot be evicted on the ground that his tenancy has been terminated. The Rent Act protects him. He can be evicted, if he is in breach of the statutory conditions enumerated ins. 14.

(48) On his death the right of the tenant to continue in possession after the termination of the tenancy comes to an end. The right was personal and did not devolve on his heirs. This is what is understood by the term statutory tenancy. This meant that on the death of the tenant his heirs had to vacate. This worked hardship. There was a cry, loud and clear, for changing the law. The Act of 1958 was amended 'with a view to conferring a right of tenancy on certain heirs/successors of a deceased statutory tenant so that they may be protected from eviction 6y landlords'. This is the avowed object of the amendment.

(49) The amendment extends the protection to heirs and successors.But it is a restricted protection. It is not unlimited. There arc several limitations on the right conferred by the amendment.

Firstly the heir must not be financially independent. If e.g. he was not financially dependent on the deceased tenant he has a right to continue in possession only for a limited period of one year.

Secondly only these four classes of heirs : (a) the surviving spouse, (b) son or daughter, (c) parents, and (d) widowed daughter-in-law of a pre-deceased son, have been conferred the right to continue in possession.

Thirdly in the order of succession spouss succeeds to the exclusion of son or daughter. Son and daughter will exclude the parents. The parents will exclude the daughter-in-law. The first category excludes. the second and so on.

Fourthly if there are two successors of the same category and one of them was financially independent and the other was financially dependent on the deceased then the one financially independent will enjoy the right to continue in possession for one year but the financially dependent one will enjoy the right to continue in possession for his life time provided he belongs to the 'same category' to which the financially independent successor belonged. Take for instance a son and a daughter. The son, if financially independent, will enjoy the right for one year. But the daughter if financially dependent will have the right to continue in possession for her life.

Fifthly, the successor the surviving spouse, son, daughter, parents, daughter-in-law should 'ordinarily live in the premises with the deceascd person as a member of his family up to the day of his death' in order to be entitled to right to continue in possession.

Sixthly, If one successor of a category has enjoyed the right and there is no other successor of the same category the right to continue in possession comes to an end and does not pass on to the successor in the lower category.

Seventhly, the right of a successor is personal to him and does not extend beyond the life time of the successor. It does not devolve on his heirs.

Eightly, the Amending Act is retrospective in operation. The draftsman of the Act has chosen to achieve its retrospective effect by the use of the word 'deem'. It is a well known drafting tool that he has used. He has made it plain by express language in one of the key definitions in the Act.

(50) The Act provides for limited heritability. It is in a limited sense that the right to tenancy is conferred on certain successors of a deceased statutory tenant. It is not quite correct to call it 'a right to tenancy' as the statement of objects and reasons describes it. It is no more than the right to continue in possession after the termination of the tenancy, to use the words of the statute. The 'successor' is not a tenant in the sense that he has an estate. He has a merely personal right of occupation.

(51) Now an important question of law arises. Doss this definition of tenant apply only to residential premises or to both residential or non-residential It appears to me that this definition applies only to residential premises or perhaps to residential-cum-commercial. The reason is two-fold. Firstly it lays down that the specified successor in order to qualify to be entitled to the right to continue in possession must be such:

'A Shad been ordinarily living in the premises with such person as a member or members of his family up to the date of his death............'

(52) The words 'in the premises' are quite expressive. They are clearly suggestive of the intent of the legislature viz. to confer a right to continue to live in the premises. Similarly the words 'ordinarily living' are a clear pointer. Of commercial premises it cannot be predicated that one had been 'ordinarily living in the premises' with the deceased tenant as 'a member of his family'. The two expressions- -(1) 'living, in the premises' and (2) as a 'member of the (tenant's) family' give us a clear indication of the legislative intendment.

(53) The same expression 'ordinarily live in the premises as a member of the family of the deceased person up to the date of his death' has been used in clauses (c) and (d) of Explanationn 1. This re-inforces the conclusion I have come to.

(54) My second reason for this conclusion is that what the Amending Act seeks to confer is a mere right to continue in possession after the termination of the tenancy. But to continue in possession of what It is 'the right to continue in possession' of those very premises where the specified successor was living with the deceased tenant as a member of his family up to the date of his death. The argument that 'the right to continue in possession' extends to another and different premises is absurd. Take a case. The son was ordinarily living with the father (the tenant of the premises) as a member of his family up to the date of his death. The son hats a right *o continue in possession if he satisfies the conditions of the Explanationns. But he cannot claim that the tenancy of the commercial premises of his father also devolves on him.

(55) Suppose the son was not financially dependent on the deceased father. In that case his right to continue in possession is for a limited period of one year. This clearly refers to the residential premises. It cannot conceivably refer to the residential premises. The proposition that the son will have a right to continue in possession for one year in the commercial premises is reductio ad absurdum. This demonstrates that such a position is impossible to maintlain when carried to a logical conclusion.

(56) In order to protect the members of the family residing with a tenant, the provisions of section 2 of the Act were amended. The amended provision lays down the manner of devolution of statutory tenancy. On the death of the statutory tenant it devolves on the enumerated members of the tenatit's family as had been 'ordinarily living in the premises with such person as a member or members of his family up to the date of his death'. This requirement clearly has reference to the premises which were occupied by the tenant and in which the member of the tenant's family was residing with the tenant 'up to the dale of his death'. Section 2 cannot possibly apply to the case of premises which were used by the tenant as business premises and of which it cannot be predicated that the member of the tenant's family was residing with the tenant up to the date of his death. why should the legislature prescribe the requirement that the member should be residing with the tenant at the time of his death if the Legislature wanted to protect the member of a tenani''s family in respect of a business premises There is no nexus between the requirement of the residence of the tenant's family with the tenant at the time of his death and the creation of a statutory tenancy in respect of business premises in favor of such member.

(57) The legislature is not prepared to go the whole hog. It passed the Amendment Act in 1976. The concept of statutory tenancy was administered by the courts in what may be called its Chemically pure state for nearly two decades. Ever since the decision of Mehr Singh J. in Nihal Chand v. Shiv Narain (1958) 60 Plr 298 the doctrine was applied with unmitigated rigour.

(58) After 18 years the legislature has introduced a measure of reform. But it is ahalf hearted measure. It is a half way house, a house made of 'very unsufficient statutory straw', to use a phrase of Scrutton L.J. {Keeves v. Dean (1923) 93 L.J.K.B. 203. Rating the residential accommodation higher than 'he pl.ii.s if business in the order of priorities the legislature has refused to take the tenant of commercial premises under its protective wings. Such in effect is the result of the amendment.

(59) To sum up the extension of statutory protection 's confined to residential premises and, perhaps, to residential-cum-commercial premises but does not ensure to the benefit of a tenant of a commercial premises. On a plain reading of the amended section this appeals to me the proper interpretation. H. L. Anand, J. has also taken this view. [See Shrimati Gulab and another v. Ram Krishan Dass and others, 1977 Rcr 217.

(60) The Amending Act confersaprotectedstatus onspecifiedheirs.The State by statute has imposed restrictions on landlords who wish to terminate tenancies as it has imposed restrictions on the termination of contracts of employment.

(61) Strong reliance was placed by the defendants' counsel on Damadi Lal v. Paras Ram. : AIR1976SC2229 . It is of the highest importance that Damadi Lal's case should be examined to see what law it lays down. There the landlords determined the tenancy of their tenants and thereafter filed a suit for eviction under s. 12(1)(a) and (f) of the Madhya Pradesh Accommodation Control Act 1961 on the ground of non-payment of rent and bona fide requirement. The trial court dismissed the suit. On appeal the suit was decreed. The tenants appealed to the High Court. During the pendency of the second appeal both the tenants died and their legal representatives were brought on the record. The High Court allowed the appeal setting aside the decree of the lower appellate court and restoring that of the trial court dismissing the suit. The landlords appealed to the Supreme Court. On their behalf it was argued that both the tenants were statutory tenants and on their death the right' to prosecute the appeal did not survive to the legal representatives. The Supreme Court rejected this contention and held that the statutory tenant under s. 2(i) of the M.P. Act 'retains an interest in the premises and not merely a personal right of occupation.'

(62) This decision must be read as confined to the M.P. Act. It cannot be extended to other statutes. If the setting and frame work of an Act clearly indicate a contrary intention, the reasoning of Damadi Lal's will not apply. Their Lordships were at pains to point out that in each case the relevant statute has to be examined and it has to be seen 'what his (statutory tenant's) rights are under the statute'. (p. 2234). The provisions of an Act may convey a 'contrary intention' (p. 2235). Referring to the notion of statutory tenancy ate understood in the English Rent Acts the court warned :

'I Nour opinion it has to be ascertained how fair these notions are reconciliable with the provisions of the statute 'under consideration in any particular case.' (p. 2333).

(63) Dealing with the M. P. Act, the statute in question, before it, the court said:

'IT is thereforee necessary to examine the provisions .of the Madhya Pradesh Accommodation Control Act, 1961 to find out whether the respondents' predecessor-in-interest retained at heritable interest in the disputed premises even after the termination of their tenancy.' (p. 2235).

(64) The concept of a statutory tenant is now well understood. Time and again it has been said that the statutory tenant has no estate or property as tenant at all, but has a purely personal right I to retain possession of the property. The Supreme Court in Anand Nivas Private Ltd., v. Anandji Kalvanjis Pedhi and others, : [1964]4SCR892 observed as follows :

'A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly though in, law not accurately, called 'a statutory tenant'. Such a person is not a tenant at all: he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he ays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determin,ation of the contractual tenancy is personal: it is not capable of being transferred or assigned, and devolves on his death only in a manner provided by the statute.'

And again at p. 426 :

'A statutory tenant has no interest in the premises occupied by him and he has no estate to assign or transfer..... A statutory tenant is as we have already observed, a person who on determination of his contractual right, is permitted to remain in, occupation so long' as he observes and performs the conditions of his tenancy and pays the standard rent and permitted increases. His personal right of occupation is incapable of being transferred or assigned, an,d he having no interest in the property, there is no estate on which sub-letting may operate.'

(65) Anand Nivas was followed in Calcutta Credit Corporation v.-Happy Homes Ltd. : [1968]2SCR20 and J.C.Chatterjee v. Shri Sri Kishan Tandon and another : [1973]1SCR850 . Palekar J. in J. C. Chatterjee's case (supra) said :

'IT is now settled that after the termination, of the contractual tenancy the statutory tenant has only a personal right to continue in possession till evicted in accordance with the provisions of the Act.'

(66) In Damadi Lal their Lordships referred to their own previous decisions in Anand Nivas and J. C. Chatterjee. These decisions have not been overruled. Anand Nivas was a decision of three judges. So was Calcutta Credit Corporation. So is Damadi Lal. The Supreme Court is not bound by its previous decisions. This is now clearly established. It can overrule its previous decisions if it finds them wrong or unjust. A larger bench can, always do that. The Supreme Court has not reversed Anand Nivas and J.G.Chatterjee. Following those two cases I would hold that the incident of a statutory tendency is that the statutory tenant has only a personal right or privilege. It is nothing more than a status of irremovability conferred by the statute. Statutory tenancy does not vest in the heirs unless the statute confers the right to pass it on to heirs. The incident of the contractual tenancy on the other hand is that the tenan,t retains an interest in the premises and not merely a personal right of occupation. The contractual tenancy vests in the heirs on death of the tenant. I am, thereforee, of the view that Anand Nivas and J. C. Chatterjee are good law and binding on us. Following Anand Nivas case I would hold that Shiv Pershad Gupta was a statutory tenant and on his death the rights in the tenancy did not devolve on his sons or daughters. So long as he was alive he was protected by the statute.

(67) Anand Nivas considered the Bombay Rent Act, 1947 as amended in 1959. J. C. Chatterjee's case was concerned with the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The statute considered in Damadi Lal (supra) was M.P. Act, 1961. Here we are concerned with the Delhi Rent Control Act, 1958 as amended in 1976.

(68) As was observed in a leading Canadian case

'THERE is always a perspective within which a statute is intended to operate'

[Roncarelli v. Duplessis (1959) Scr 122 per Rand J.]. The reasoning of Damadi Lal's case cannot be applied to the Delhi Rent Act as amended. Here the perspective is different. The Amendment Act of 1976 clearly an,d unambiguously indicates a Contrary intention. The legislature in the Amendment Act has made the statutory tenancy heritable to a limited extent. This is so in relation to residential premises. The limited heritability has been extended to commercial premises. There the original concept of statutory tenancy continues to apply entirely unaffected by the recent amendment. This shows that the legislature was anxious to give relief by 'conferring a right to tenancy on certain, heirs/ successors of a deceased statutory tenant so that they may be protected from eviction by landlords' in cases of residential premises but was not prepared to do the same thing for the tenants of commercial premises. Why? It is not for this court to answer. The legislature in its wisdom was prepared to go only that far and no further. The statute is the will of the legislature. By enacting the Amendment Act the legislature has expressed its will in an unequivocal manner. The intention of the legislature is to be gathered by placing the statutory tenant of a residential premises in juxtaposition to the statutory tenant of a commercial premises. The legislature has conferred a right to continue in possession on certain heirs of the former; while it has not conferred any such right on the heirs of the latter. In residential premises the statutory tenancy has a limited transmissibility; in commercial premises it has none whatsoever. The legislature has left us in no doubt about this.

(69) The concept of statutory tenancy means different things in different statutes. A statutory tenant is a hybrid creature. It is a new animal in the legal bestiary. Not unjustly has the statutory tenancy been called 'monstrum borrendum' (See Damadilal's case (supra) p. 2234). It has been described as a 'jurisprudential curiosity' and the statutory tenant himself has been described as 'an, anomalous legal entity' (Meggary Rent Acts 10th edition p. 199). The modern tendency of trying to legislate in detail for everything results in Acts of unbelievable complexity. The latest example is the Rent Control Amendment Act of 1976.

(70) This then is my conclusion. The reasoning of Damadi Lal's case (supra) does not apply to the Delhi Rent Act as there is a contrary intention indicated in the Amendment Act of 1976. The legislature has given relief to the statutory tenant of the residential premises. None to the statutory tenant of commercial premises. It is against this background that the Delhi Rent Act has to be construed. In the light of the Amendment Act 1976 it has to be understood. One can find the general purpose and policy of the Act by reading it as a whole in the light of the circumstances which existed when it was passed or of the mischief which it must have been intended to remedy.

(71) The reasoning of the majority in Anand Nivas (supra)applies to the statutory tenant of the commercial premises. He has no estate or interest in the premises occupied by him but only a personal right to remain in occupation. As Shah J. said .

'HI Spersonal right of occupation is incapable of being transferred or assigned.........'.

(72) It was urged upon me that the provisions in the M.P. Act and the Delhi Act are analogous and thereforee I ought to follow Damadi Lal's case. I do not agree. The provisions in the two Acts are not analogous. The Amending Act 1976 has made all the difference.

(73) Counsel for the plaintiffs argued that the amended definition of the term 'tenant' applies only residential and not commercial premises. In the alternative he submitted that if it is held that the definition applies to commercial premises also then this Court can take notice of facts and events which have happened after the institution of the suit and mould relief accordingly. He said that Anchi Bai had died during the pendency of the suit and I should take notice of that event. Undoubtedly, the Court has power to take notice of subsequent events and mould relief according to the changed circumstances under Order Vii, rule 7 Civil Procedure Code That proposition is no longer in dispute. The basic ruling on, the point is Lachmeshwar Prasad Shukul and others v. Keshwar Lal Chaudhary and others , which has been followed recently by the Supreme Court in Pasupuleti Venkateswarlu v. The Motor & General Traders : [1975]3SCR958 . need not mention the other authorities to which I was referred.

(74) In my opinion, the question of moulding relief does not arise. I have held that the amended definition applies only to residential premises. It does not apply to commercial premises. If that is so, there is no question of taking notice of subsequent facts or events.

(75) Suppose I am wrong in this view. Suppose the amended definition applies to the premises in question. In that case I should not hesitate to mould the relief according to the changed circumstances. This course is advisable as it would shorten the litigation. Anchi Bai, a party to the suit, died after the institution of the suit. This is a subsequent event, though fortuitous. I ought to take notice of it. Anchi Bai being the spouse was a 'successor' and entitled to continue in possession in her life time. Now that she is dead sons and daughters have no right to continue in possession. They are of the lower category. They do not succeed. The inevitable conclusion is that the defendants do not acquire any right under the Amendment Act of 1976.

(76) Counsel for the defendants raised another point. He submitted that the civil courts have no jurisdiction to try the suit. He founds his argument on the withdrawal of the appeal in .the Rent Control Tribunal by the landlord. It will be remembered that against the order of the Additional Ren,t Controller dismissing his petition the plaintiff Goela filed an appeal before the Rent Control Tribunal on May 7, 1968. On July 30, 1968, Shiv Pershad died. The plaintiff's counsel withdrew the appeal on September 12, 1968. He made a statement that since no such property, tenancy or other rights, were involved in the appeal as could devolve on any legal heirs etc. the appeal had become infructuous. The Tribunal thereupon dismissed the appeal.

(77) Counsel for the defendants says that the jurisdiction of the civil courts is barred under s. 50 of the Delhi Rent Control Act and that on the death of the tenant Shiv Pershad the landlord ought to have continued the appeal in, the Tribunal against his legal representatives. For this I was referred to a full bench decision of five judges of this court in Kedar Nath v. Mohini Devi : AIR1974Delhi171 . Basing himself on this authority counsel argued that the death of the tenant during the pendency of the proceedings before the Rent Controller does not terminate the proceedings and the eviction order can be passed against tenant's legal representatives. In my opinion, this argument is based on a complete misundftrstanding of Kedar Nath's case (supra).

(78) It is true that the bench of five judges of this court has held that the jurisdiction of the Rent Controller to deal with the application for eviction after the tenant's, death remains unaffected. The legal representatives-can be brought on the record and the proceedings can, be continued. The eviction order can be passed against the legal representatives. V. S. Deshpande J. speaking for the full bench of three judges in K. G. Malhotta v. Vijay Kumar : AIR1973Delhi265 had taken the view that on the death of a statutory tenant an application for eviction under s. 14 of the 1958 Act cannot proceed further and the lanlord will have to file a separate suit based on title in a court having general jurisdiction as the legal representatives do not inherit the tenancy or the statutory protection. The full bench of five judges disapproved of this view. They held that under clause (q) of s. 108 of the Transfer of Property Act

'ON, the determination of the lease, the lessee is bound to put the Lesser into possession of the property.'

(79) thereforee, the bench of five judges came to the conclusion that the proceedings under s. 14(1) of 1958 Act have to be continued against the legal representatives and if the Controller finds that the landlord has established the ground of eviction an, order of eviction can be passed against the legal reperesentatives who are duty bound to put the Lesser into possession of the property.

(80) But here this is not the case. Mohan Lal Goela on the death of his tenant Shiv Pershad Gupta decided not to continue the proceedings which he had instituted before the Rent Controller and where he had failed to establish the ground of eviction against the tenant. Mohan Lal-Goela had sued Shiv Pershad for eviction on the ground of non-payment of rent and subletting. The Additional Controller dismissed the petition. Mohan Lal Goela went in appeal. During the pendency of the appeal the tenant died. The appeal was withdrawn. The civil suit was instituted. The suit is based on title. A decree for possession is claimed on the ground that the possession of the sons and daughters of Shiv Pershad Gupta is unauthorised and unlawful. The suit is based on a different cause of action.

(81) Now a decree for eviction is passed on the grounds specified in s. 14 of the Act of 1958. If the landlord had decided to pursue the eviction case it was incumbent on him to continue the appeal and on the authority of Kedar Nath v. Mohini Devi (supra) he could have claimed an order for eviction against the legal representatives if be had succeeded in appeal. But the landlord abandoned the eviction proceedings. He decided to sue the persons in possession of the property on the footing that their possession was unauthorised and unlawful. S. 50(1) of the Rent Control Act provides :

'SAVE as otherwise expressly provided in this 'Act, no civil court shall entertain any suit or proceedings in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant there from or to any other matter which the Controller is empowered by or under this Act to. decide...........'

(82) It cannot be disputed that the Rent Controller has no jurisdiction to decide a claim for possession made on the ground that the defendant is in unlawful possession. The jurisdiction of the Controller is to order eviction if the landlord is able to bring his case within one of the grounds specified in the proviso to s. 14(1) of the Act and is able to show that the ban on his right to evict the tenant should be lifted as the tenant has violated one or more of the statutory grounds enumerated ins. 14. P. N. Khanna J. speaking for the full bench of five judges in Kedar Nath's case said :

'IN case the Controller comes to the finding that the landlord has not been able to establish any of the grounds which are. mentioned in clauses (a) to (1) of the proviso to Section 14(1) then he would have no power to pass an order for recovery of possession for the reason that the conditions on which the power to order recovery of possession rests, do not exist. The landlord may then file, if so advised, a regular suit for possession in the civil court, which would be on a different cause of action.'

(83) The landlord was not bound to continue the proceedings before the Tribunal in appeal as he was no longer interested in the eviction of his tenant under s. 14(1). The landlord thereforee brought the present suit after withdrawing the appeal. Now the ground of claim is that the defendants' possession is unauthorised and unlawful and they be ordered to deliver possession to the plaintiff. Section 50(4) provides :

'NOTHING in sub-section (1) shall be construed as preventing a civil ctourt from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies...........'

The suit is thereforee competent in a civil court. Issues 7 and 8

(84) This brings me to the plaintiffs' claim for rent and mesne profits. They have claimed Rs. 2173.50 from the estate of Shiv Pershad Gupta for the period from January 1, 1968 to July 30, 1968 as Shiv Pershad Gupta died on July 30, 1968. The plaintiffs have also claimed Rs. 16,146 from the defendants for the period from July 31, 1968 . up to December, 1972.

(85) The agreed rate of rent was Rs. 270 per month. A notice of increase was served on the tenant on September 4, 1959. Increase of Rs. 40.50 was claimed. As the tenant did not pay eviction proceedings were launched against him. Rent was deposited with the Additional Rent Controller up to December 31, 1967 by the tenant. As no rent was paid for the subsequent period the claim was made in this suit for rent from January 1, 1968. The defendants made an application that they had deposited Rs. 810 on account of rent from January 1, 1968 to March 31, 1968 with the Additional Rent Controller. On this application I made an order that the plaintiff could withdraw the amount from the court if he so likes without prejudice to his rights.

(86) Counsel for the defendants contended that the plaintiffs cannot claim rent or mesne profits at the rate of Rs. 310.50 as the agreed rate of rent was Rs. 270 per month and if any increase is claimed the question must be decided by the Rent Controller. Counsel relied on Dhan Raj Jayna v.S.P.Singh 1973RCR 29 .1 do not think after service of notice of increase of rent under s. 8 of the Act of 1958 on the tenant it was necessary for the landlord to resort to the Rent Controller before he could lawfully claim an increase in rent. The case of Dhan Raj (supra) was a case of standard rent and not a case of increase of rent. That case thereforee does not apply. The landlord is entitled to the increased rent of Rs. 310.50 per month. He can also adopt the same figure as a measurement of mesne profits.

(87) The plaintiffs have claimed rent and mesne profits right from January 1, 1968 to December, 1972. The suit was filed on November 2,1968.

(88) The plaint in this suit has been amended as many as four times. On January 17, 1973 the plaintiff made an application seeking amendment of the plaint so as to include the present two claims noted above (1) against the estate of Shiv Pershad Gupta till his death and (2) against the defendants. By order dated July 16, 1973, T.P.S. Chawla, J. allowed the amendment. He took the view that it will be unjust to bar the plaintiff from having his claim for mesne profits adjudicated upon.

(89) Now so far as the claim for rent and mesne profits is concerned the principal objection of the defendants is that it is barred by time and decree cannot be passed for any period beyond three years. It will be noted that the suit was filed in the court of the Commercial Sub Judge on November 2, 1968. On December Ii, 1972, the plaint was returned to the landlord. It was presented in the High Court on that very date. The plaintiff Goela Bays that he has been prosecuting the suit diligently in the court below. The proceedings in the trial court were stayed by the High Court in revision against the order dated November 1, 1971 of the Commercial Sub Judge directing the plaintiff to make up the deficiency of court-fee. The revision was decided on November 13, 1972. The plaint was ordered to be returned by the trial court for presentation to this court. On December Ii, 1972, the plaint was returned. It was refiled in this court on the same date.

(90) The plaintiffs now claim that the period from November 2, 1968 to December Ii, 1972 should be excluded in computing the period of limitation for the suit. I think I ought to exclude from the period of limitation time during which the suit was being prosecuted in the court below. The plaintiffs made an application (A 2039 of 1972) under s. 14 of the Limitation Act. I am satisfied that the plaintiff Goela was prosecuting the suit with due diligence and in good faith. There is nothing to indicate that he was acting in bad faith. The Court of the Commercial Sub Judge was unable to entertain the suit because the value of the suit exceeded the pecuniary jurisdiction of the court after that court had determined the value of the property at Rs. 51,000 based as it was on an agreement of the parties. In fairness and justice the period ought to be excluded. T. P. S. Chawla J. took this view while allowing the amendment. I take the same view under s. 14 of the Limitation Act. I would thereforee hold that the plaintiffs are entitled to a decree for the amounts claimed on account of rent and mesne profits, They are also entitled to the exclusion of the period from November 2, 1968 to December Ii, 1972. Both these issues are decided in favor of the plaintiffs.

(91) The plaintiffs have also claimed a preliminary decree for mesne profits. Order 20 rule 12, Civil Procedure Code empowers the court to order an inquiry in respect of mesne profits due after the institution of the suit till the expiration of three years from the date of the decree or till the delivery of possession to the degree-holders. The final decree is then to be passed in accordance with the result of such an inquiry. Issue No. 9

(92) Assuming that the property is situated in a slum area, no permission of the competent authority under the Slum Areas (Improvement and Clearance) Act, 1956 is required. Under s. 19 of that Act permission of the competent authority is required for 'any suit or proceedings for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area'. But this suit is not a suit for the eviction of a tenant. It is a suit based on independent title against the defendants whose possession is said to be unauthorised and unlawful. S. 19 of the Slum Act has no application to such a suit. This issue is thereforee decided against the defendants. Issue No. 10

(93) For the foregoing reasons the plaintiffs succeed. The suit is decreed. There shall be a decree for possession against the defendants. There shall also be a decree for Rs. 2173.50 in favor of the plaintiffs against the defendants recoverable from the estate of Shiv Pershad Gupta. I also pass a decree for Rs. 16,146 in favor of the plaintiffs against the defendants. A preliminary decree for mesne profits is also hereby passed under Order 20 Rule 12, Civil Procedure Code in terms whereof an inquiry as toalBtfsne profits shall be made from January, 1973 till the delivery of posession to the decree-holders. The plaintiffs shall also be entitled to the costs of the suit.

(94) The defendants can withdraw the sum of Rs. 810 deposited by them with the Additional Controller, if it has not been paid to the plaintiffs so fat. If the plaintiffs have received Rs. 810 from the Additional Controller they will give credit for this amount to the defendants.


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