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Krishan Gopal Malhotra Vs. Vijay Kumar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberExecution Second Appeal No. 2 of 1971
Judge
Reported inAIR1973Delhi265; 9(1973)DLT267
ActsDelhi Rent Control Act, 1958 - Sections 14, 25 and 50(4); Code of Civil Procedure (CPC), 1908 -Order 22, Rule 4
AppellantKrishan Gopal Malhotra
RespondentVijay Kumar
Advocates: R.L. Aggarwal,; D.N. Bhasin,; F.C. Bedi,;
Cases ReferredVasudev Dhajihhai Modi v. Rajabhai Abdul Rehman
Excerpt:
the case focused on the right to sue the legal representatives of the deceased tenant - it was ruled that the right to sue survived to the landlord against the legal representatives of the deceased tenant - - (4) a lease is a transfer of 'right to enjoy immoveable property' (section 105 of the transfer of property act). such a right, unless personal to the tenant, is inheritable by his legal representatives. under section 33(1) of the 1952 act 'any civil court .which has jurisdiction to hear and decide a suit for recovery of possession of any premises shall have jurisdiction to hear and decide any case under this act'.under section 33(3) 'if any question arises whether any suit, application or other proceeding is a case under this act, the question shall be determined by the.....v.s. deshpande, j. (1) on facts stated below, two questions arise for decision, namely :- (1)if a tenant (whose contractual tenancy has already been terminated) dies during the pendency of a suit or a proceeding for his eviction filed by the landlord, is the landlord entitled to a decree or order for the possession of the premises against the legal representatives of the deceased tenant in the same proceeding? and (2) in what circumstances can such a decree or order be challenged as being without jurisdiction by the said legal representatives in the executing court?(2) the landlord respondent vijay kumar field a suit against his tenant kidar nath malhotra for arrears of rent and eviction on february 18, 1955 under the delhi and ajmer rent control act, 1952 (hereafter called the 1952 act)......
Judgment:

V.S. Deshpande, J.

(1) On facts stated below, two questions arise for decision, namely :-

(1)If a tenant (whose contractual tenancy has already been terminated) dies during the pendency of a suit or a proceeding for his eviction filed by the landlord, is the landlord entitled to a decree or order for the possession of the premises against the legal representatives of the deceased tenant in the same proceeding? and (2) In what circumstances can such a decree or order be challenged as being without jurisdiction by the said legal representatives in the executing court?

(2) The landlord respondent Vijay Kumar field a suit against his tenant Kidar Nath Malhotra for arrears of rent and eviction on February 18, 1955 under the Delhi and Ajmer Rent Control Act, 1952 (hereafter called the 1952 Act). But the tenant died even before he was served wit htbe summons of the suit. The landlord alleged that he had already terminated the contractual tenancy of Kidar Nath who had, thereforee, become only a statutory tenant and as such, the legal representatives of the tenant did not inherit either the tenancy or the statutory protection which was personal to the deceased tenant. He nevertheless applied that the legal representatives be brought on record. Accordingly, the appellant Krishan Gopal, the son of the deceased tenant, and two others were brought on record as legal representatives. Krishan Gopal contested the suit on the ground that the tenancy of his father Kidar Nath had not been validly terminated and alternatively that he was himself the tenant of the respondent landlord. The trial Court dismissed the suit for eviction and passed the decree only for arrears of rent. The first appeal by the landlord was allowed by the District Judge who held that the tenancy of Kidar Nath had been validity terminated and that Krishan Gopal was not a tenant in his own right. He passed a decree for eviction as also for damages for use and occupation against the legal representatives. A revision against the order of the District Judge was heard by Sachar, J., of this Court. Before the learned Judge it was urged for Krishan Gopal that if the late Kidar Nath Malhotra was only a statutory tenant, the suit could not have proceeded against his legal representatives. Sachar, J., held firstly that this plea could not be raised in the revision for the first time and secondly that it had no force, and that the legal representatives could not resist the suit for possession in as much as the tenancy of Kidar Nath had been validly terminated. When the decree was sought to be executed by the landlord, Krishna Gopal raised an objection that the decree was void as bieng without jurisdiction inasmuch as no decree could have been passed under the 1952 Act against the legal representatives of a statutory tenant. His objection was dismissed by the executing Court on January 16, 1971. The first appeal by him was also dismissed on March 23, 1971. Hence Krishan Gopal has purported to file this second appeal under section 100 read with section 47 Civil Procedure Code. No objection is taken to the maintainability of this appeal on the ground that section 34(2) of the 1952 Act expressly stated that no second appeal shall lie against the order passed under the said Act. Even if such an appeal did not lie, the memorandum of appeal may be considered as one for revision which lay under section 35 to the High Court against any decision made in any case under the Act. As the questions of law involved are very important, they have been referred to this Full Bench and are considered by us as below.

(3) Question NO. 1: Though the eviction was claimed by the landlord under the 1952 Act, most of the cases are, since the repeal of the said Act. being heard under the Delhi Rent Control Act, 1958 (hereafter called the 1958 Act). We have thought it useful, thereforee, to consider these questions in relation to the provisions of both these Acts.

(4) A lease is a transfer of 'right to enjoy immoveable property' (section 105 of the Transfer of Property Act). Such a right, unless personal to the tenant, is inheritable by his legal representatives. Rights and obligations correspond to each other. thereforee, the obligation of the tenant to hand over the possession of the premises after the termination of his tenancy (section 108(q) of the Transfer of Property Act) would also be inherited by his legal representatives. Section 37 of the Contract Act and sections 305 and 306 of the Indian Succession Act are also to the same effect. Section 146 of the Civil Procedure Code says that 'where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him'. The definition of a 'legal representative' in section 2(11) Civil Procedure Code means 'a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased'. This is the position under the general law and the law of procedure as embodied in the Civil Procedure Code which in terms applies only to suits filed under section 9 of the Civil Procedure Code.

(5) Procedure Under The 1952 Act : The jurisdiction of a civil court comprises suits for possession based on title as also those which arc based exclusively on the relationship between a landlord and tenant including a suit for the eviction of a tenant filed by the landlord. Under section 33(1) of the 1952 Act 'any civil court .... which has jurisdiction to hear and decide a suit for recovery of possession of any premises shall have jurisdiction to hear and decide any case under this Act'. Under section 33(3) 'if any question arises whether any suit, application or other proceeding is a case under this Act, the question shall be determined by the court'. Under section 37 'the court may hold a summary inquiry into any case under this Act (other than a suit for eviction under section 13 in which the question of title is involved), and the practice and the procedure of a court of small causes shall, as far as may be, apply to such cases as if they were suit and other proceedings cognizable by a court of small causes'. The substantive part of section 13(1) says that 'notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any court in favor of the landlord against any tenant (including a tenant whose tenancy is terminated)'. Then follows the proviso :-

'PROVIDED that nothing in this sub-section ..........for such recovery of possession if the court is satisfied......'

(6) Then follow clauses (a) to (1) describing the exceptional circumstances on the proof of any of which to the satisfaction of the court, the landlord may obtain an order for eviction against his tenant.

(7) Our Interpretation Of These Provisions Of The 1952 ACT: The 1952 Act wests the jurisdiction to try a suit by a landlord against a tenant under section 13 in the ordinary civil courts. The suit under section 13, however, is distinguished from a suit for possession based on title by the following features, namely :-

(1)It must be by a landlord against a tenant, and (2) It must be based on one or more of the grounds specified in clauses (a) to (1) of the proviso to section 13(1).

(8) The expression 'any case under this Act' used in section 33(1) would, thereforee, include only such a suit for eviction under section 13 as is filed by the landlord against his tenant on one of the grounds specified in the proviso to section 13(1). It will not include a suit filed by a landlord against a person who is not a tenant which is based on title nor a suit by a landlord against his tenant in which the question to title is involved. For, the only object of section 13 of the 1952 Act. was to provide for suits between landlord and tenant. In view of the prohibition contained in the substantive part of section 13(1), no such suit could be filed for eviction there under except on one to the grounds listed in the proviso. We, thereforee, understand the bricketed words in section 37, namely, 'other than a suit for eviction under section 13 in which the question of title is involved' as follows: If a suit filed under section 13 is based on title and not on the relationship between landlord and tenant, or is a suit between a landlord and his tenant wherein a question of title is involved, then it would not be 'any case under this Act' within the meaning of section 37. The nature of the suit will put it outside the Act. It will be governed by the full procedure laid down in the Civil Procedure Code and not by 'the practice and procedure of a court of small causes' as stated in section 37. Other suits between landlord and tenant to which section 13 of the 1952 Act applies are also triable by the ordinary civil court but in accordance with the provisions of this Act and according to the practice and procedure of a court of small causes. The ordinary civil court is the court having jurisdiction to try both suits.

(9) On the death of the tenant Kidar Nath Malhotra the right of the landlord to sue for possession survived under Order Xxii rule 1 Civil Procedure Code. The jurisdiction of the court to entertain the suit is, however, determined on the allegations in the plaint or in the application for eviction. The material allegation of the landlord was that the contractual tenancy had been determined and Kidar Nath died only as a statutory tenant. His legal representatives were not thereforee, 'tenants'. As the suit under section 13 of the Act could be filed only against a tenant and an order for eviction could be made by the court there under only on the basis of relationship of landlord and tenant between the parties, by his own allegation, the landlord took out the suit from section 13 and placed it outside section 13 on the basis of title. We have, thereforee, to read rule I of Order Xxii Civil Procedure Code with rule 4 thereof. While the former deals with the survival of the right to sue in favor of the plaintiff, the latter deals with the survival of such a right against the legal representatives of the deceased defendant. The right to sue survived to the landlord but this right was to be exercised by suing the legal representatives of the deceased statutory tenant on the basis of title and not on the basis of the landlord and tenant relationship. The suit, though triable by the same court, would, thereforee, change from a suit based on tenancy to a suit based on title. The legal representatives under rule 4 could, thereforee, be brought on record not as tenants but as the ordinary heirs at law of the deceased who notionally represented the estate of the deceased even though they did not actually inherit the statutory tenancy or the statutory protection of the deceased.

(10) Of course, if the jurisdiction of the court had not been a two-fold one but had been confined only to a suit for eviction between a landlord and a tenant under section 13 of the 1952 Act, the landlord would have been required to file a separate suit based on title in a court having jurisdiction on the death of the statutory tenant against his legal representatives who had not inherited the tenancy or the statutory protection. This was the contention made before the Supreme Court in paragraphs 5-6 in J. C. Chatterjee v. Sri Kishan Tandon, : [1973]1SCR850 , This contention was dealt with by the Supreme Court in paragraph Ii of the said decision. The legal representatives under rule 4(2) of Order Xxii Civil Procedure Code could make only such defense as would be appropriate to their character, namely, the same defense which their predecessor-in-title could have made. But the legal representatives of a deceased statutory tenant could not make such a defense inasmuch as the statutory protection was available to the statutory tenant personally. But they could make such a defense which was available to the tenant and which was not personal to the tenant. One such defense so pointed out by the Supreme Court, in paragraph 13 was to challenge the validity of the termination of the tenancy. This defense was open to the legal representatives. They could take up that defense as Krishan Gopal did when the suit for eviction by Vijay Kumar proceeded against him after the death of Kidar Nath. But if the said defense failed and Krishan Gopal was shown not to have inherited the tenancy of his father, then after this finding, the suit would be seen to be only based on titled and not on tenancy. Such a suit could not be decreed under section 13 of the 1952 Act but could be decreed only on the basis of title. When, however, the landlord and tenant suit was before a civil court which also had the general original civil jurisdiction of an ordinary civil court, the same court was able to try the suit on title 'avoiding thereby a separate suit for a decision on the independent title' as observed by the Supreme Court at the end of paragraph Ii in J. C. Chatterjee's case. This advantage of avoiding multiplicity of suits must not, however, cloud the legal nature of the change in the jurisdiction of the court. The jurisdiction on the death of Kidar Nath changed from that over a tenancy suit to one over a title suit.

(11) Procedure Under The 1958 Act No suit for eviction can be filed by a landlord against his tenant under the 1958 Act. The landlord can only file an application for eviction against his tenant. Such an application is triable not by the ordinary civil court but by a controller appointed by the Central Government under section 35 of the Act. Such a controller had to be given certain powers of a civil court under the Civil Procedure Code by section 36(2) of the Act. For, otherwise he would not have had such powers. thereforee, though under section 37(2) the Controller has to 'follow the practice and procedure of a court of small causes' as far as may be he is still not a court proper. This was so held in Sabhash Chander v. Rehmat Ullah (1973) 1 Delhi 181 (1) (per Andley, C. J. and Chawla J.).

(12) The jurisdiction of the controller is restricted by section 14 of the Act only to an application for eviction filed by the landlord against his tenant. The controller has no general jurisdiction of an ordinary civil court to try a suit based on title. What then is the effect of the death of a tenant during the pendency of an application filed by the landlard against him for eviction under section 14? In Mangal Chand v. Gurbaksh Singh. : AIR1972Delhi56 , (s) the position on the death of the tenant was considered separately (1) when the death occurred before an order for eviction was passed, and (2) when it occurred after the order for eviction had been passed. It was held that if the tenant died before the order for eviction was passed, it would have to be seen whether the contractual tenancy of the deceased tenant had been terminated or not. If it had been terminated, then the deceased tenant died only as a statutory tenant. His legal representatives meaning the heirs at law did not inherit either the statutory tenancy or the statutory protection. They were, thereforee, not tenants under the 1958 Act. The jurisdiction of the Controller to pass an order for eviction under section 14 is limited to one or more of the grounds mentioned in the proviso to section 14(1) against a tenant. He cannot, thereforee, pass an order for eviction there under against the legal representatives of a statutory tenant. This limited jurisdiction has been strictly construed by the Supreme Court under section 13 of the 1952 Act. Even when an order for eviction in favor of the landlord is passed against a tenant not on any of the grounds enumerated in the proviso to section 13(1) of the said Act but only by way of a compromise between the parties, such an order or eviction was held to be void by the Supreme Court repeatedly in Bahadur Singh v. Mum Subrat Dass : [1969]2SCR432 , Kaushalya Devi v. K. L. Bansal 1969 Rcr 703, and Ferozi Lal Jain v. Man Mal 1970 Rcr 375. Though the words 'if the court is satisfied' used in the proviso to section 13(1) of the 1952 Act are absent in the proviso to section 14(1) of the 1958 Act, the legal position under both the Acts is the same. Neither the court under the 1952 Act nor the Controller under the 1958 Act can evict a tenant except on one of the grounds listed in the provisos to sections 13 and 14 respectively. A fortiori, an order for eviction based on title but not on any of the grounds listed in the proviso to section 14(1) of the 1958 Act cannot, thereforee, be passed by the Controller against the legal representatives of a deceased statutory tenant.

(13) On the other hand, if the contractual tenancy of the deceased tenant had not been terminated, then the tenancy would be inherited by the legal representatives and they would be entitled to defend the application for eviction as tenants under the Act of 1958. Not only Order Xxii rule 1 Civil Procedure Code but also Order Xxi 1 rule 4 Civil Procedure Code would then apply fully and the legal representatives as tenants would be brought on record after the death of the deceased tenant.

(14) Would Order Xxii rule 4 Civil Procedure Code apply if the contractual tenancy of the deceased tenant had been terminated By section 37(2) of the Act, the Controller has to follow the practice and procedure of a court of small causes, that is, the appropriate provisions of the Code of Civil Procedure 'as far as may be'. This means that the provisions of the Civil Procedure Code would have to be adapted mutates mutants to the kind of case which is tried by the Controller. The jurisdiction of the Controller is confined to an application for eviction by the landlord against a statutory tenant. If, on the averment of the landlord himself, after the death of the statutory tenant, the applicant has to proceed against the legal representatives of the deceased tenant who are not tenants at all. then the jurisdiction of the Controller to entertain the said application would come to an end. In Om Parkash Gupta v. Dr. Rattan Singh 1963 PLR 543, it was held by the Supreme Court that under the 1958 Act, 'the Controller has to decide the question whether there was a relationship of landlord and tenant. If the Controller decides that there is no such relationship the proceeding has to be terminated, without deciding the main question in controversy, namely, the question of eviction'. The same view was reiterated by the Supreme Court in relation to similar statutory provisions in Raizada Topandas v. Gorakhram Gokalchand, : [1964]3SCR214 , towards the end of paragraph 9 after explaining their previous decision in Babulal Bhuramal v. Nandram Shiuram, : [1959]1SCR367 . Again in Hiralal Vallabhram v. Sheth Kasturbhai Lalbhai, : [1967]3SCR343 , while considering parallel statutory provisions, the Supreme Court observed in paragraph 6 of the judgment that the appellate court had no jurisdiction to pass a decree for ejectment in favor of the landlord against a trespasser or a person who is not a tenant.

(15) These decisions of the Supreme Court were sought to be distinguished on the ground that they referred to proceedings initially filed by the landlord against a person who was not a tenant. But when an application for eviction is filed by the landlord against a tenant, the Controller is seized of the case with jurisdiction. Does he lose the jurisdiction by the death of the tenant? Can it not be urged that the initial jurisdiction continues till an order for eviction is passed? In our view, there is no basis for the alleged distinction. The reason is that the jurisdiction of the Controller to pass an order for eviction can be exercised only on one of the grounds stated in the proviso to section 14(1). On the allegation of the landlord, himself, no such ground is available to him lor eviction against the legal representatives of a deceased statutory tenant. Against them. he has to rest his claim only on his title. It is clear that he cannot make an application under the 1958 Act on the basis of title. It is equally clear that at any time before the order for eviction is passed, he will have to rely on the proviso to section 14(1) to get an order for eviction. thereforee, if the statutory tenant dies before an order for eviction is passed the basis of the claim of the landlord for eviction has to shift from the provision to section 14(1) to that of his general title. The application for eviction cannot, thereforee, proceed further under section 14. It is only if, instead of the Controller, the application had been before a civil court of general jurisdiction, as in the 1952 Act, that the application could have proceeded and continued in the same court in its general jurisdiction. This is a vital distinction between the 1952 and the 1958 Acts.

(16) What do we mean exactly when we say that the application turn eviction against the legal representatives of the deceased statutory tenant cannot proceed under section 14 if the statutory tenant dies before an order for eviction is passed? We mean that while the general right to sue, namely, to recover possession of the premises survives to the landlord within the meaning or order Xxii rule 1 Civil Procedure Code, it survives to him only to pursue his remedy on title in a civil court of general jurisdiction. It also survives to him against the legal representatives within the meaning of rule 4 of order Xxii provided that he pursues his remedy against them on the basis of title in a civil court of general jurisdiction. For, the survival of the right to sue is governed by the general law. While the general law is stated in section 37 of the Contract Act and section 306 of the Indian Succession Act, these provisions are not concerned with the form in which the right to sue survives and the procedure by which such a right has to be exercised after the death of a decreased statutory tenant. In Anand Nivas Private Limited v. Anandji Kalyanji Pedhi (1964) 4 Scr 908, the Supreme Court observed as follows regarding a statutory tenant :-

'HISright to remain in possession after the determination of the contractual tenancy is personal: it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute'.

(17) This observation has been followed in paragraph 9 of the subsequent decision in .J. C. Chatterjee's case. referred to above. It would follow, thereforee, that the right to pursue the application under section 14 does not survive against the legal representatives of the statutory tenant before the Controller. But that is not to say that the right to sue within the meaning or rule 4 of order Xxii Civil Procedure Code does not survive. That provision is not bodily applicable to an application under section 14. It has to be adapted to suit the special circumstances to mean that the right to sue survives only to pursue a suit in a civil court. This was why in Nathu Khan v. Mohd. Ismail (1973) 1 Delhi 298, a distinction was made between two different capacities of legal representatives of a deceased statutory tenant. In one capacity, any person who represents the estate of the deceased within the meaning of section 2(11) Civil Procedure Code has to be joined as a legal representative of a deceased tenant in a civil suit. But in another capacity, under the 1958 Act only a person inheriting the tenancy and/or the statutory protection of deceased tenant would be regarded as the legal representative.

(18) The above discussion has proceeded on the assumption that a suit under the 1952 Act and an application under the 1958 Act by the landlord for eviction against the tenant cannot be filed except after a prior termination of the contractual tenancy. For, the decisions of the Supreme Court reviewed in Batoo Mal v. Rameshwar Nath, : AIR1971Delhi98 . establish the law that without a prior termination of the contractual tenancy, a petition for eviction is not maintainable at all. The prescribed form of application for eviction under the 1958 Act requires the landlord in every eviction petition to state if the required notice has been given or not. If the landlord pleads that the contractual tenancy has been terminated or remains silent about it and the tenant fails to raise the defense of non-maintainability of the petition on the ground of nontermination of the contractual tenancy, then according to the decision in Batoo Mal v. Rameshwar Nath, the tenant would be deemed to have waived the said plea. On the other hand, if the landlord were to admit that he had not terminated the contractual tenancy, then according to the decision in Ghera Singh v. Kasturi Lal 1971 Rcr 243, the tenant can at any time point out this defect and demand a dismissal of the petition. If an order for eviction is passed either because the tenant fails to raise this defense or the tenant's defense is disallowed, then whatever the pleading the landlord may have made. it would have to be presumed that the contractual tenancy had been terminated by the landlord. For. the decree or order for eviction could not be passed except on the basis that the contractual tenancy had been terminated. Such an issue of fact cannot be raised before an executing court or in a writ petition by the tenant after the order for eviction is passed. (Sakina Begum v. Competent Authority. Civil Writ 838 of 1972 decided on February 22, 1973).

(19) When, thereforee, the tenant dies during the pendency of the application for eviction, the presumption is that he died as a statutory tenant and defenses appropriate to the character of legal representatives are not available to his legal representatives if they were personal to the deceased statutory tenant. But those defenses which were not personal to him would be available to the legal representatives. They would be of two kinds, namely :-

(A)the denial that the tenancy was terminated which, if established. would result in the dismissal of the petition; and (b) independent title of the legal representatives not derived from the deceased tenant which can be inquired into by the civil court under the 1952 Act but which cannot be inquired into by the Controller under the 1958 Act.

(20) Order Xxii of the Code of Civil Procedure deals with abatement of suits. Abatement is different from a dismissal on merits or for lack of jurisdiction either at the commencement of the action or during its trial. Survival of the right to sue either under Order Xxii rule 1 in favor of the landlord or under Order Xxii rule 4 against the legal representatives of the deceased tenant is different from the right to pursue an action in a particular form or forum. thereforee, even where an application has been filed under Section 14(1) and the tenant dies, the right to sue survives to the landlord against the legal representatives of the deceased tenant.

(21) The question is how is such an application to proceed upon the death of the tenant? The landlord may not apply within the prescribed time to bring the legal representatives on the record. In such a case, the application abates as provided by Order XXII. But if the landlord makes an application to bring the legal representatives on the. record, they 'will have to be brought on the record as the right to sue survives. If they deny the termination of the contractual tenancy, then they are taking a defense appropriate to their character as legal representatives which defense was not personal to the deceased tenant and the Controller would proceed to decide the issue. If he decides in favor of the legal representatives, he would dismiss the petition for eviction on merits on the ground that they are not statutory tenants and the application is not maintainable. If he decides against the legal representatives, when he would find that he has no jurisdiction to proceed under the 1958 Act and would, thereforee, dismiss the petition on the ground of want of jurisdiction. Similarly, if the legal representatives plead an independent title, then also the Controller would have to dismiss the petition for lack of jurisdiction to inquire into the independent title. On the other hand, if the legal representatives admit that the deceased tenant was a statutory tenant and have no defense to make except such defense as was personal to the deceased tenant, then though the general right to sue survives to the landlord to pursue his remedy on the basis of title in a civil court, the right to pursue the application under the 1958 Act does not survive and the Controller has to terminate the proceedings. The observation in Mangal Chand's case that 'the application for eviction would have abated on the death of Mangal Chand in accordance with the principles of rule 4 of Order Xxii, Civil Procedure Code' was obviously made in such case only in which both the landlord and the legal representatives are agreed that the contractual tenancy has been terminated and the legal representatives have no defense to make which was not personal to the deceased tenant. Even so, we would not prefer to say that the application for eviction abates under the 1958 Act. For, the right of the landlord to obtain possession from the legal representatives in a civil court survives to him. We would, thereforee, prefer to say that the application for eviction cannot be continued against the legal representatives and would have to be dismissed by the Controller in view of the agreement between the pleadings of the landlord and the legal representatives on this point. This does not mean that a subsequent suit on the same cause or action could not be filed as would happen after the abatement of a suit under the Civil Procedure Code. On the contrary, the landlord would have a right to file civil suit on the basis of title precisely because of the death of the statutory tenant during the pendency of the procceding before the Controller. We would not, thereforee, call the termination of the proceedings before the Controller as an abatement. The Controller may, thereforee, dismiss the application for eviction on the ground that he has ceased to possess the jurisdiction to entertain it on the death of the statutory tenant. Such an order would have to be passed in the presence of the prooosed legal representatives. But it would have to be passed after bringing them on record.

(22) Death Of The Statutory Tenant After The Order For Eviction Is Passed Under The 1958 Act : Section 25 of the 1958 Act provides as follows :-

'NOTWITHSTANDINGanything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under this Act for the recovery of possession of such premises, the order shall, subject to the provisions of section 18, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such persons there from : Provided that nothing in this section shall apply to any person who has an independent title to such premises'.

(23) The substantive part of section 25 gives effect to the executability of order or decree for possession against all persons bound by it contained in Order Xxi rule 35(3) Civil Procedure Code. Any person in occupation of the premises is, thereforee, liable to be evicted in execution of the order for eviction on the presumption that he is claiming through the deceased tenant. His legal representatives would also be included in such proceedings. If, however, the legal representatives have an independent title, that is, a title to occupy the premises not through the tenant but in their own right or through someone other than the deceased tenant, then they cannot be evicted in execution of the order for eviction in view of the proviso to section 25. Section 50(4) of the Act of 1958 also reserves the final decision on title to a civil court. The Controller has, thereforee, to decide whether a person has an independent title to the premises. If his conclusion is in the affirmative, then he must refuse to evict that person. If his conclusion is in the negative, then he would proceed to evict such a person on the ground that such a person does not have independent title and is covered by the substantive part of section 25. The said person would, however, have a right to challenge his decision in the civil court on the basis of his title in view of section 50(4) of the Act of 1958.

(24) Under the 1952 Act, however, the same civil court can hear even a person having an independent title and pass an order turn eviction against him. J. C. Chatterjee's case before the Supreme Court under the Rajasthan Premises (Control of Rent and Eviction) Act. 1950 was similar to a case under the 1952 Act having been tried by a civil court. That was why even the independent title of the legal representatives could be inquired into by the same court in that case also.

(25) On question No. 1, thereforee, we find that in a case under the 1952 Act if a tenant (whose contractual tenancy has already been terminated) dies during the pendency of a suit or a proceeding For his eviction filed by the landlord, the landlord is entitled to a decree or order for the possession of the premises against the legal representatives of the deceased tenant in the same proceeding but in an application for eviction under the 1958 Act, the landlord would not be so entitled.

(26) Question NO. 2 : Under the 1952 Act, the same civil court had the dual jurisdiction of passing an order for eviction either against a tenant or against a non-tenant. The order for eviction in the present case was passed against legal representatives who were not tenants. But that could be done not in the capacity of a court acting under the 1952 Act but in the general capacity of the same court acting under section 9 of the Civil Procedure Code. The decree for eviction passed in the present case was, thereforee, valid. It was not without jurisdiction. The question whether the executing court could consider the challenge to it on the ground of jurisdiction docs not, thereforee, arise for consideration under the 1952 Act.

(27) Had the case been one under the 1958 Act, however, the Controller would have had no jurisdiction to pass an order of eviction against a legal representative of a deceased tenant if he had found that the deceased tenant was a stututory tenant. An order passed by a Controller for eviction against legal representatives would, thereforee, be on the face of it without jurisdiction. The following defects would appear on the face of it, namely :-

(1)It would be an order passed against a person or persons who were found not to be tenants at all. This woculd be completely contrary to the provisions of section 14 which authorises such an order to be passed only against tenant. (2) It would be an order passed on the ground of title and not on any of the grounds mentioned in the proviso co section 14(1). A Controller cannot pass an order for eviction except on a ground mentioned in the proviso to section 14(1).

(28) As the want of jurisdiction would thus be apparent on the face of such an order, even the executing court would be entitled to hold that such an order is without jurisdiction. This was so held by the Supreme Court in Vasudev Dhajihhai Modi v. Rajabhai Abdul Rehman, : [1971]1SCR66 . However the raising of such an objection before an executing court may be barred for special reasons some of which are mentioned by the Supreme Court at page 6S of the abovementioned decision in the following words :-

'WHEREthe objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the 'validity of the decree even on the ground of absence of jurisdiction'.

(29) The absence of jurisdiction must, however, relate to the want of inherent jurisdiction. The Controller lacks inherent jurisdiction to pass a.n order of eviction against a person who is not a tenant and on grounds which are outside the proviso to section 14(1). But objections relating to territorial jurisdiction or to pecuniary jurisdiction are to be distinguished from an objection to inherent jurisdiction.

(30) As the present appeal is governed by the provisions of the 1952 Act, the order of eviction was validly made against the legal representatives with jurisdiction by the civil court concerned. The appeal is, thereforee, dismissed with costs. Counsel's fee Rs. 250.00.


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