M.L. Jain, J.
(1) The facts of this second appeal and the cross-objection (C. M. P. 1497/78) are that Shri Abdul Jalil owns the house in dispute in Nai Sarak, Delhi. Girdhari Lal was a tenant in the first and second floors of the said house since 1954 but his tenancy was terminated in March 1973. and he was sought to be ejected on three grounds out of which only one that is of sub-letting had eventually survived. It was alleged that Girdhari Lal sublet the premises to one Hari Singh in the first floor and Kunj Behari Lal in the second floor. As regards Hari Singh, the learned Addl. Rent Controller held that he was not a sub-tenant but was only living with the tenant as a friend. And since Kunj Behari Lal stated that he had left the premises but joined again a sub-tenant of Girdhari Lal in 1953, it was held that he became a sub-tenant after June 9, 1952. This subletting being without any written permission of the landlord, an order for eviction was passed in favor of the landlord on August 28, 1975. The Rent Control Tribunal dismissed the appeal against it on April 4, 1978. Hence, this second appeal. A cross-objection was field by the respondent against the findings respecting the sub-tenancy qua Hari Singh.
(2) During this appeal, Girdhari Lal, who was a statutory tenant, died and his legal heirs were allowed to be brought on record on February 27, 1979, in spite of an objection raised by the respondent landlord that the appeal stood abated because the premises being commerial, no right to occupy them survived to the legal representatives in view of the Full Bench decision in Haji Mohammad Din and another v. Narain Das, : AIR1979Delhi186 . But it was urged on behalf of the repondent that though the appeal could not abate because the legal respresentatives were directed to be have been substituted, yet appeal shall have to be dismissed because the legal heirs have no right to remain in the premises and are bound to comply with the decree and surrender possession. Support was sought to be drawn form J.C. Chatterjee and others v. Sri Kishan Tandon another, : 1SCR850 , wherein on similar facts, the Supreme Court had maintained the decree of eviction though the statutory tenant had during the proceeding died. The learned counsel for the appellant contended that the order of February 27, 1979 which purports to say that once the legal representatives are on record, they have a right to raise the same defense which the deceased statutory tenant could and did raise, operated as rest judicata. He points out that J.C. Chatterjee (super) was considered by a Bench of 5 judges of this court in Kedar Nath Smt. Mohani Davi : AIR1974Delhi171 and yet it held that in case of an evicion application under the Delhi Rent control Act, 1958 (hereinafter the Act), eviction of the legal representatives of a statutory tenant dying meanwhile cannot be directed by the Rent Controller unless any ground which could be proved against the deceased statutory tenant, could be proved against his successors. In any other case, he had no jurisdicition, and the appellant could be evicted only by a separate suit for possession and not in these proceedings.
(3) 1 have carefully examined Kedar Nath (supra) in Smt. Gian Devi v Jiwan Kumar S.A.O. No. 8 of 1979, decided today. 1980 Raj LR. 28 I do not find that it supports the contention of the appellant in any manner. Except in the cases now provided for in the recent amendments in Order 22 of the Code of Civil Proce dure, 1908, substitution in place of a party is a legal requirement because a dead person can neither proseed nor can be proceeded against and the law does not countenance vacuum and resultant frustration. Substitution of a legal representatives in place of a dead person is something which should not be confused with availability or otherwise of any pleas to him. Since it is the appellant who has died, it is Rule 3 of Order 22 that shall apply and it lays down that if the right to appeal survives, then the court shall cause the legal representatives of the deceased appellant to be made a party and shall proceed with the appeal, vide Order 22, Rule 11 Civil Procedure Code . There is no question of resjudicata here. Nothing which now falls for determination, that is their right to remain in possession, was finally heard and decided on February 27, 1979. The legal representatives simply save the appeal from abatement and they can certainly proceed with the appeal but that does not debar the respondent to say and this court to decide whether any or none of the pleas can be allowed to be raised by the appellant or not. No one is dislodging them from their substitutions but they cannot be heard to say that though the defenses which were available to their predecessor were personal to him and were not available to them and consequently, they have no doubt no right to remain in possession, yet they cannot be dispossessed otherwise than by suit for possession because the Rent Controller has no jurisdiction. Such a stand is not permisible because they are not setting up any right independent of the rights which the deceased did have. That apart, Kedar Nath, (supra) has also made it clear that in a situation like this, the jurisdiction of the Controller remains unaffected. To refuse relief where the plaintiff disclose no cause of action or the defendant has a valid defense to make, is not the same thing as to say that the court does not possess or ceases to possess the power to allow or refuse such relief.
(4) In view of the aforesaid legal situation, the appeal should fail, but I shall deal with the merits as it raised interesting question of law. Both the courts below have held that the case as far as sub-tenancy to Hari Singh is concerned was not proved. The cross-objection relates to this finding. This is finding of fact and this court cannot interfere with it. In respect of the sub-tenancy, it was held that one Bhikan Lal. was the tenant of the premises, i.e. first floor and second floor, in 1942. He had started a boarding dhaba. Kunj Behari Lal was his sub tenant in the second floor. Bhikari Lal sold his rights in the premises in favor of Roop Ram who started realizing rent from Kunj Behari Lal. Thereafter, Balwant Singh became the tenant and he used to collect rent from Kunj Behari Lal. Balwant Singh sold the Dhaba to the appellant Girdhari Lal (now deceased) on November 8, 1952. He was accepted as a tenant by the landlord with Kunj Behari Lal continuing in possession of the second floor and Girdhari Lal collecting rent from him. It is urged that though Girdhari L'l was accepted as a tenant by the landlord, yet (here is no written acceptance of the sub-tenancy of Kunj Behari Lal. thereforee, the respondent was entitled to eviction. This argument cannot be upheld. There is no doubt that Kunj Behari Lal has been in the premises right from the year 1942 and Girdhari Lal purchased the tenancy of the premises on November 8, 1952, subject to the long standing, sub tenancy of Kunj Behari Lal. thereforee it was not the tenant who sublet or assigned or parted with possession of the second floor in favor of Kunj Behari Lal on the basis of S. Rajdev Singh v Mfs Royal Studios and others. : AIR1972Delhi150 . (as against Gurmauj Saran Baluja v N.B. Seth (Dr.), 1958 D.L.T. 1940. It was, however, urged that upon the termination of .tenancy of Balwant Singh (Predecessor of Girdhari Lal) on November 8, 1952, Kunj Behari Lal became a direct tenant by virtue of S. 20 of the Delhi & Ajmer Rent Control Act, 1952, then prevalent, but precisely at that very moment or the next following, having agreed to pay rent to Girdhari Lal, he shall be deemed to have surrendered his tenancy right directly so acquired under the Law and become a sub tenant of Girdhari Lal but without written consent of the landlord. The learned Tribunal accepted this approach and held that this amounted to creation of sublease without the consent of the landlord after June 9, 1952. The view adopted by the learned Tribunal cannot be sustained. Section 20 of the Delhi and Ajmer Rent Control Act, 1957, cannot apply unless the tenancy of Girdhari Lal's preceessor was terminated on November 8, 1952. It was not a case of termination of tenancy at all but was a case of transfer of the tenancy rights in favor of Girdhari Lal with the consent of the landlord. thereforee, Kunj-Behari Lal cannot be held to have become a direct tenant. 18(2) of the Act was also at this stage pressed into service but that could be invoked only if the interest of Girdhari Lal, the tenant, had been terminated after its creation on November 8, 1952, and before February 9, 1959, so as to make Kunj Behari Lal a direct tenant and simultaneously a subtenant on February 9, 1959. Moreover, if it is held that Kunj Behari Lal became a direct tenant in his own right either on November 8, 1952 or on February 9, 1959, then the second floor not being vacant it could not form part of the tenancy of Girdhari Lal and what was let to him was only the first floor, the second floor being in the direct tenancy in law of Kunj Behari Lal When Kunj Behari Lal became a tenant in his own right and instead of paying rent to the landlord began to pay rent to Girdhari Lal then it is breach on his part of the direct tenancy for which Girdhari Lal cannot be held responsible.
(5) I am also unable to uphold the finding of the Rent Controller that the tenant sublet the premises in 1953 on the basis of a stand taken by the sub-tenant that he bad left the premises in 1952 but came again as a sub-tenant in 1953. The tenant denied this position. The learned Tribunal reversed this finding and in the circumstances of the case, it is Girdhari Lal whom I will also believe in preference to Kunj Behari Lal. I hold that Girdhari Lal did neither in fact nor in law create any subtenancy in favor of Kunj Behari Lal. The respondent succeeds not on merits but on account of the death of the statutory tenant as explained above. There is no need for the landlord to file a separate suit for eviction.
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