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Jungli and anr. Vs. Syed Waris Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 233 of 1973
Judge
Reported in11(1975)DLT132
ActsDelhi Rent Control Act, 1998 - Sections 14
AppellantJungli and anr.
RespondentSyed Waris Ali and ors.
Advocates: G.C. Mittal and; Mohd. Mian, Advs
Cases ReferredGobind Ram v. Santo Devi (supra) It
Excerpt:
.....be brought on record to continue the said proceedings - further, it was directed to the additional rent controller that to continue the proceedings on the ground of sub-letting and damage proceedings but the personal need of owner should be viewed as different from the personal need of legal representatives - - this contention of the appellants was turned down on the ground that the original owner had sought the eviction of the appellants on the ground of subletting and damage to the property as well. he, thereforee, contends i that the ground on which the trial has been challenged having thus ceased to exist, the appeal had become infructuous (5) after hearing learned counsel for the parties, it appears to me that the order of the tribunal declining to strike off the ground with..........respondents as his legal representatives. the appellants made an application to the additional rent controller that the cause of action for the petition for eviction of the appellants had died with the original owner and the proceedings, thereforee, did not survive and the petition should acccrdingly be dismissed. this application was turned down by the additional rent controller by his order made on may 5, 1973. in the course of the order, learned additional rent controller came to the conclusion that his predecessor had held that the right to sue survived to the legal representatives that the said order had become final and was not open to review; that the supreme court in the case of phool rani and others v. naubat rai hluwalia, bad merely held that the right to sue did not.....
Judgment:

H L. Anand, J.

(1) This second appeal under Section 9 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act') must be dismissed on the short ground that by virtue of an order made by the Controller on December 10, 1971. allowing the amendment of the petition for eviction, it has become infructuous.

(2) The facts giving rise to the appeal may be briefly stated. Syed Ashaq Ali, the owner of the property in dispute filed a petition for the eviction of the appellants, inter alia, on the grounds that the said owner bona fide needed the premises in dispute for his personal need as a residence. The petition was also based on two other grounds, namely, that the appellants had unauthorisedly sublet and had damaged the demised premises. During the pendency of the petition, the owner died leaving the present respondents as his legal representatives. The appellants made an application to the Additional Rent Controller that the cause of action for the petition for eviction of the appellants had died with the original owner and the proceedings, thereforee, did not survive and the petition should acccrdingly be dismissed. This application was turned down by the Additional Rent Controller by his order made on May 5, 1973. In the course of the order, learned Additional Rent Controller came to the conclusion that his predecessor had held that the right to sue survived to the legal representatives that the said order had become final and was not open to review; that the Supreme Court in the case of Phool Rani and others v. Naubat Rai hluwalia, bad merely held that the right to sue did not survive with regard to the personal need of the landlord ; that the present petition was based on grounds other than the personal need as well and, thereforee, it could not besaid the petition could not proceed. The order of the Additional Rent Controller was upheld in appeal under Section 38 of the Act by the Tribunal. Before the Tribunal, an additional argument was urged on behalf of the appellants that in any event having regard to the decision of the Supreme Court in the case of Phool Rani (supra), the petition of the respondents, in so far as it sought eviction on the ground of personal bona fide need of the original owner could not be proceeded with as the said cause of action, being personal to the owner who had since died, died with him and did notsurvive. This contention of the appellants was turned down on the ground that the original owner had sought the eviction of the appellants on the ground of subletting and damage to the property as well. It was, however, observed that 'the question whether the respondents were entitled to claim eviction under clause (e) would remain open.'

(3) The impugned order of the Tribunal has been assailed before me by Shri Gian Chand Mittal, learned counsel for the appellants on the ground that the cause of action with regard to the personal need of the then owner was personal to him, did not survive on his death and the petition in so far as it sought eviction of the appellants on that ground could not proceed and the Tribunal was, thereforee, in error in keeping the said ground alive.

(4) Shri Mohd. Mian, learned counsel for the respondents, on the other hand, sought to justify the impugned order on the ground that the petition, based on grounds other than personal bona fide need of the previous onwer, can proceed even after the death of the owner not only with regard to the grounds regarding subletting and damage to the property but also with regard to the ground of personal bona fide need of The present owners, i. e , the respondent which has since been substituted in the petition for that of the previous owner by virtue of the order made by the Additional Rent Countroler on December, 10, 1971 allowing leave to the respondents to amend the petition. So as to add the ground of personal need of the respondents and urged that the amendment had since been carried out, the appellant's counsel had acted on the order by accepting costs and that the order having not been challenged, had become final and could not be assailed in the present proceedings. He, thereforee, contends i that the ground on which the trial has been challenged having thus ceased to exist, the appeal had become infructuous

(5) After hearing learned counsel for the parties, it appears to me that the order of the Tribunal declining to strike off the ground with regard to the personal need of the original owner and leaving the question as to the jusiticiability of that ground open was clearly illegal.

(6) In the case of Phool Rani and others (supra), the Supreme Court had occasion to consider the nature of the cause of action based on the personal need of the landlord and as to the effect of he death of the landlord during the prendency of the proceedings for the eviction of a tenant on the ground of such a cause of action and the petition based on it and it was held that the need of the owner was his need and not of his family and was, thereforee, personal to the owner and did not survive after the death of the owner and proceedings for the eviction of the tenant after the death of the owner in such a case could not survive.

(7) In the persent case, the eviction was sought not only on the ground of personal need of the owner but on two other grounds and while it could not be said that the petition would not survive merely because one of the grounds on which eviction was sought was personal to the owner, it is nevertheless not possible for the Controller to proceed with the petition in relation to the ground which was based on the cause of action which was personal the owner end obviously died with him That being so, it must be held that while the Additional Rent Controller was justified in his conclusion that the petition in so far as it sought evictionon grounds other than personal need of the owner survived and could be continued by the legal representatives, who could be legitimately brought on record for that purpose, it was not open to the Tribunal to hold that so far as the relief based on personal need of the original owner was concerned it could be kept alive until the parties had led evidence with regard to such a need and it must thereforee, be held that the said ground did not survive and must beignored.

(8) The relief sought by the appellants with regard to the aforesaid cause of action, however, appears to be infructuous because by the order made by the Additional Rent Controller on December 10, 1971, it had allowed the legal representatives' application under Order 6 rule 17 of the Code of Civil Procedure to amend the petition so as to substitute the ^ personal need of the owner for that of the legal J representatives and that being so, it could not be said that the present petition as amended was based on the need of the owner, who had since died.

(9) Learned counsel for the appellants, however, urged that the order of the Additional Rent Controller allowing the substitution of the ground relating to the personal need of the owner for that of the personal need of the legal representatives must bs ignored because the order was a nullity on the ground that by allowing the amendment, the Additional Rent Controller had virtually permitted the legal pepresentives to substitute an entirely new cause of action of their personal need for the original cause of action which was based on the personal need of the previous owner and was, thereforee, beyond the terms of Order 6 Rule 17 of the Code of Civil Procedure and relied in support of this contention on certain observations made by the Supreme Court in the case of Phool Rani and others (supra) and a decision of the Division Bench of the Punjab High Court in the case of Gobind Ram v. Santo Devi C. M P. 337/D/63 decided by the Division Bench of that Court on November 18, 1964. Learned counsel further contended that such an order need not be challenged or set aside and must be treated as nonest.

(10) This contention of the learned counsel for the appellants is clearly misconceived and ignores the distinction between the lack of initial jurisdiction or inherent lack of jurisdiction and the limits the jurisdiction or power of the Court to deal with a matter. A decree or an order of a Court would be a nullity only if the Court was lacking in initial or inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or because the defendant was dead at the time the suit had been instituted or the decree was passed or because of some other defect which would have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it or where the Court was not duly constituted and was coramnon judice Where, however, the Court was duly constituted, was properly seized of a cause, which it was competent to deal, order made by it would not be a nullity merely if the order was incorrect, improper illegal or beyond the limits of its jurisdiction or the extent of its powers and such an order would be valid unless it was set aside in appropriate proceedings and until that was done, it could not be ignored as a nullity. In the present case, the Additional Rent Controller was properly seized of the petition for the eviction of the appellants and had the necessary power to consider if the petition should or should no be allowed To be amended and where after considering the matter it came to the conclusion that the petition should be allowed to be amended, its order may be improper or illegal or even beyond the powers of the Addition at Rent Controller under Order 6 Rule 17 of the code of civil procedure it could not be said to be a nulity and could not thereforee, be ignored unless it was set aside in appropriate proceedings. None of the decisions cited by the learned counsel could possibly reinforce his contend on The observation of the Supreme Court in the case of Phool Rani (supra) were merely intended to lay down that an amendment of the petition based on the ground of personal need of the owner after the death of the owner would be beyond the power of the Court under Order 6 Rule 17 of the Code of Civil Procedure because by such an amendment the Court would be permitting the legal representatives to substitute an entirely new cause for the original cause of action The addition of a fresh cause of action, namely, the personal need of the owner was similarly described as beyond the terms of Order 6 Rule 17 of the Code of Civil Procedure in the case of Gobind Ram v. Santo Devi (supra) It is, however, not possible to accept the contention that the order allow ing amendment under Order 6 Rule 17 of the Code of Civil Procedure, even though in allowing the amendment the Court may transgress the limits of its power, could make the order a nullity. In my view, such an order would continue to be valid order until set aside in appropriate proceedings and the aforesaid order is not subject matter of the appeal before me and it is not possible for me to ignore it as a nullity.

(11) In the result, I hold that the proceedings for the eviction of the appellants could continue, after the death of the owner in so far as eviction was sought on the ground of subletting and damage to the demised premises. The legal representatives were entitled to be brought on record to continue the proceedings inittiated by the owner and were, thereforee, rightly brought on the record for that purpose, that the ground of ejectment based on the personal need of the owner did not survive and could not, thereforee, form part of the petition and in view of the order of the Additional Rent Controller granting leave to the legal representatives to amend the petition, the said ground ceased to exist in law until the aforesaid order is set aside in appropriate proceedings and the present appeal which challenges the order of the Tribunal in so far as it kept the ground regarding personal need of the previous owner alive is infructuous because the said ground ceased to form part of the petition.

(12) In the result, the appeal fails and is dismissed but with no costs. The Additional Rent Controller shall continue the proceedings on the basis of the ground of subletting and damage but ignoring the ground with regard to the personal need of the owner as distinct from the personal need of the legal representatives. I may, however, add by abundant caution that the question whether the order of the Additional Rent Controller made on December 10, 1971 allowing leave to the legal representatives to amend the petition was wrong, improper or illegal did not fall for consideration in the present proceedings and is thereforee, kept open and no observation made in this order would be deemed in any manner deciding that question or expressing any opinion in relation to it and the Courts would be free to adjudicate the aforesaid question in accordance with law in appropriate proceedings.

(13) The records of the Additional Rent Controller be transmitted to that Court. The parties are directed to appear before the Additional Rent Controller on April 4, 1974 for further proceedings,


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