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B.K. Khanna and Co. (P) Ltd. Vs. K.C. Nahar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous (Main) Appeal No. 28 of 1971 and Civil Miscellaneous Appeal No. 188 of 1971
Judge
Reported inILR1971Delhi366
ActsDelhi Rent Control Act, 1958 - Sections 37(2) and 38(1); Code of Civil Procedure (CPC), 1908 - Order 1, Rule 10 - Order 6, Rule 17; Constitution of India - Article 227
AppellantB.K. Khanna and Co. (P) Ltd.
RespondentK.C. Nahar and ors.
Advocates: S. Pappu,; Bindra Rana,; M.S. Ganesh and;
Cases Referred(Ved Parkash Kapur v. Harish Chander
Excerpt:
.....by way of analogy the proceeding is like a suit while the enquiry is like the trial of a suit. on hearing them, if the controller is satisfied that they cannot be joined either as necessary or as proper parties, he would be free to agree with their contention and discharge..........of the landlord for the eviction of the tenant in as much as the provisions of order 6 rule 17 civil procedure code did not apply to the enquiry held by the controller in the proceeding before him. 2. if the code of civil procedure is held to apply, the order of the controller permitting the addition of the subsidiary companies as co-respondents was contrary to the provisions of order 1 rule 10 thereof, civil procedure code and is, thereforee, liable to be set-aside under article 227 of the constitution. 3. the case is such as to warrant interference by this court under article 227 of the constitution.(2) let us consider the above contentions in the order in which they are set-out. 1. section 37(2) of the delhi rent control act, 1958, lays down that 'subject to any rules that may be.....
Judgment:

V.S. Deshpande, J.

(1) This is an application under Article 227 of the Constitution by the petitioner-tenant against the respondents-landlords for quashing the order dated 27th January, 1971 of Shri Jaspal Singh, Controller. By the impugned order the Controller allowed the applications of the landlords for amendment of their petition for eviction against the tenant. The amendment sought to add as co-respondents certain companies who, according to the landlords, were in actual possession of the premises because the tenant had either sublet or parted with the possession of the premises to them. The tenant denied subletting as well as parting with the possession and said that these other companies were subsidiary companies of the petitioner which was the parent company. The main grounds of challenge larged by the petitioner are as follows:-

1.The Controller had no jurisdiction to entertain and allow an application for the amendment of the petition of the landlord for the eviction of the tenant in as much as the provisions of order 6 Rule 17 Civil Procedure Code did not apply to the enquiry held by the Controller in the proceeding before him. 2. If the Code of Civil Procedure is held to apply, the order of the Controller permitting the addition of the subsidiary companies as co-respondents was contrary to the provisions of order 1 Rule 10 thereof, Civil Procedure Code and is, thereforee, liable to be set-aside under Article 227 of the Constitution. 3. The case is such as to warrant interference by this court under Article 227 of the Constitution.

(2) Let us consider the above contentions in the order in which they are set-out. 1. Section 37(2) of the Delhi Rent Control Act, 1958, lays down that 'subject to any rules that may be made under this act, the Controller shall while holding an enquiry in any proceeding before him, follow as far as may be the practice and procedure of a court, of small causes including the recording of evidence.' Mrs. Shyamla Pappu, learned counsel for the petitioner submitted on the construction of section 37(2) that :--- (a) An enquiry in a proceeding signifies something narrower than the proceeding itself. The petition for eviction initiated the proceeding but the enquiry by the Controller was held thereafter, and (b) The Controller was to follow the practice' and procedure of a court of small causes Only while holding the enquiry which included recording of evidence but excluded the pleadings filed by the parties. In my view the words 'while holding an enquiry in any proceedings' are not meant to draw a distinction between the scope of an enquiry and the scope of a proceeding. The two words 'enquiry' and 'proceeding' have the same scope and meaning. The reason why two distinct words were used for the same thing was to stress the different aspects of it. From the view point of the Controller it is the enquiry which is to be held by him. From inside, thereforee, the function of the Controller is to hold an enquiry. This is how the Controller sees it. On the other hand, from outside the parties see it as a proceeding pending before the Controller. The proceeding is initiated by the landlord by filling a petition for eviction against the tenant. By way of analogy the proceeding is like a suit while the enquiry is like the trial of a suit. It cannot be contended that the scope of a suit is larger than the scope of the trial of a suit. Similarly it does not stand to reason that a proceeding before the Controller may be larger than the enquiry made by the Controller in such a proceeding. The pleadings of the parties cannot be excluded from the scope of an enquiry just as they cannot be excluded from the scope of a trial. For. the enquiry is confined to the limits set by the pleadings and cannot travel beyond it. The evidence is recorded on the pleadings and the decision is also given on the pleadings. am of the view, thereforee, that the petition for eviction was an interred part not only of the proceeding but also of the enquiry within the meaning of section 37(2).

(3) It is true that the Code of Civil Procedure as such has not been made applicable to the enquiry in a proceeding before him held by the Controller. At the same time it is clear that the Controller shall follow as far as may be the practice and procedure of a court of small causes. It is an essential part of the practice and procedure of a court of small causes that an application for the amendment of a pleading may be entertained and decided by the court. thereforee, it is not because Order 6 Rule 17 of the Civil Procedure Code applies to the proceeding before a Controller in terms but because the Controller has to follow the practice and procedure of the small causes court that the amendment of a pleading has to be considered and decided by the Controller. In doing so, thereforee, the Controller did not act beyond his jurisdiction under section 37(2) of the Delhi Rent Control Act, 1958. 2. The provisions of Order 1 Rule 10 Civil Procedure Code embody another important principle of the procedure and practice of a court of small causes. An application by the landlord for the addition of the alleged sub-tenants or the persons to whom the tenant has handed over the possession of the premises has, thereforee, to be considered by the Controller in accordance with the principle under lying Order I Rule 10 Civil Procedure Code The relevant part of order 1 Rule 10(2) is as follows:-

'THE court may at any stage of the proceedings order that the name of any person who ought to have been joined whether as plaintiff or defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.'

(4) This sub-rule thus fails into two parts namely (a) it enjoins the court to add a person as a party who ought to be joined, that is to say who is a necessary party, and (b) gives the court a discretion to add a party whose presence is necessary for the complete adjudication of the questions involved, that is a proper party.

(5) The question whether an alleged sub-tenant must or should be joined as a co-respondent in a proceeding for eviction pending before the Controller arises frequently. It has, thereforee, to be considered in all its aspects in the context of order 1 Rule 10(2) Civil Procedure Code If an application for eviction has been made under proviso (b) to section 14(1) of the Act then it is necessary for the landlord to aver that the tenant has on or after the 9th day of June, 1952 sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing Of the landlord. This would mean that a tenant who has created a sub-tenancy or who has parted with possession prior to 9th June, 1952, is not liable to be evicted under this proviso. If. thereforee, either the landlord or the tenant or the alleged subtenants avers that the sub-tenancy or parting with possession dates from before the 9th June, 1952 then such a sub-tenant or person in possession has a right to point-out that he is a lawful sub-tenant or is in lawful possession and that the tenant is not liable to be evicted under section 14(1)(b)( and the subtenant or the person in possession is not liable to be thrown- out along with the tenant at the time of the execution of the order for eviction under section 42 of the Act. Similarly, if the sub-tenancy was created with the written consent of the landlord after the commencement of the Act, the landlord would not be entitled to evict the tenant under section 14(1)(b) if the requisite notice was given to the landlord under section 17(1). Similarly if the sub-tenancy was created before the commence- ment of the Act and notice under section 17(2) is given to the landlord, the landlord would not be able to evict the tenant and the sub-tenant. Whenever, thereforee, applying under section 14(1)(b) a lawful sub-tenant is protected by the above provisions of the Act then in a petition for eviction against the tenant such a lawful sub-tenant would be a necessary party. For, the tenancy is an interest in land. A protected sub-tenant has. thereforee, interest in the premises which is protected by the Act. A person who has such direct and legal interest in property is a necessary party under order I Rule 10(2) Civil Procedure Code. Distinguished from such a lawful sub-tenant having a direct legal interest in the property are other persons who are either not lawful sub-tenants or whose possession is not protected by the Act. These persons may be of two kinds namely (a) those claiming through the tenant, and (b) those having an independent title of their own. The former claim through the tenant and are not protected by the Act. They are not, there- to necessary parties. They are represented by the tenant who alone is a necessary party. An order passed against the tenant is binding on them a.nd is executable against them U/s 42 and under the principal part of section 25 of the Act. On the other hand, persons claiming independent title of their own may also be of two kinds. It they hold adversely to the landlord and the tenant then they are outside the purview of the Act. The Controller has no power to make any order against them in view of the proviso to section 25 of the Act. The jurisdiction of the Controller is limited to a proceeding which is between the landlord and the tenant. Such a person, who is not a party to such a relationship is not, thereforee, either necessary or a proper party to such a proceeding. His title will have to be decided by the Civil Court in view of sub-section (4) of section 50 of the Act. If, however, a person himself claims to be a tenant of the landlord then he claims to be in relationship with the landlord as a tenant. He may claim that the landlord or a predecessor in title of the landlord or a successor in title of the landlord has given the lease to him. He is, thereforee, claiming as a tenant. In view of his direct legal interest in the property as a tenant he will be a necessary parly to an eviction proceeding before the Controller. The Controller will have jurisdiction to pass an order against.

(6) The petition for eviction by the landlord being expressly under section 14(1)(b), the landlord has to aver that the subletting or parting with possession took place after 9th June, 1952. If the landlord has made such a pleading then the alternative pleading of the tenant regarding landlord's written consent to subletting referred to at page 2 of the order of the Controller is not a sufficient defense. For, the tenant has not pleaded that a notice to the landlord under section 17(1) of the Act of the creation of the sub-tenancy was given within one month thereof. The alleged sub-tenants not being lawful, were not, thereforee, necessarily parties within the meaning of the first part of order 1 Rule' 10(2) Civil Procedure Code For, either they are a part of the petitioner or are in possession on behalf of the petitioner. They do not have any direct legal interest in the premises protected by the Act. Nor did the Controller have any discretion in joining them under the second part of the principle underlying order I Rule 10(2) Civil Procedure Code For, it cannot be said that their presence was necessary for the complete adjudication of the issues in the case. For, the subsidiary companies stand or full within the tenant. If the landlord obtained an order of eviction against the tenant, the subsidiary companies would go out with the tenant. Their joinder was, there- fore, contrary to the principle underlying the order 1 Rule 10 (2) Civil Procedure Code. 3. What is the proper remedy against the impugned order then? Obviously, the order of the joinder was passed in the absence of the subsidiary companies. Under section 37(1) of the Act, they would have an opportunity of showing cause to the Controller that the order of the joinder passed in their absence should not be confirmed after they are heard against it. On hearing them, if the Controller is satisfied that they cannot be joined either as necessary or as proper parties, he would be free to agree with their contention and discharge them. He has the power to discharge parties already on the record particularly if they were joined without being heard. But the present petition is tiled by the tenant under Article 227 of the Constitution. The tenant contends that the impugned order is without Jurisdiction the word 'jurisdiction' has two meanings in this context, it may mean the lack of initial jurisdiction of the Controller to entertain the application for the joinder of parties or it may mean the error committed by the Controller in exercising the jurisdiction when he allowed the joinder of parties. In Razia Begam v. Sahib Zadi Anwar Begum : [1959]1SCR1111 '. Supreme Court, after reviewing the case law observed at pages 1131 and 1132 that the question of addition of parties under order 1 rule 10 Civil Procedure Code is not one of initial jurisdiction of the court but may in some cases raise a controversy as to the power of the court, in contra-distinction to its inherent jurisdiction or, jurisdiction in the limited sense in which it is used in section 115 of the Code. It is possible., thereforee, that a wrong order by a civil court under Order 1 Rule 10 Civil Procedure Code may be revisable by the High Court under section 115. That remedy of revision is not available to the petitioner as the Controller is not a civil court. The addition of a party under order 1 Rule 10 Civil Procedure Code '. is generally a procedural matter. It only seeks to bring before the court all necessary or proper parties. It does not itself affect the rights of the tenant or the landlords. It can, however, affect the rights of the subsidiary companies if they contend that legally they cannot be joined as parties. As against the landlords and the tenant, however, the order of joinder is only a procedural one. Between them it is not, thereforee, an order 'under the Act' within the meaning of section 38(1) of the Act as construed by the Supreme Court in Central Bank of India v. Gokal Chund, (1967) Delhi LT 1. The petitioner could not have, thereforee, filed an appeal against the impugned order. The Controller had the' initial jurisdiction to entertain the application for amendment of the petition and for joining of new parties. It in deciding the said applications he construed the provisions of order 1 Rule 10(2) Civil Procedure Code wrongly then he may have exercised his jurisdiction wrongly within the meaning of section 115 Civil Procedure Code. But the mistake committed by him was still within his initial jurisdiction. Nor can it be said that the order passed by him was so contrary to the fundamental provisions of order 1 Rule 10 Civil Procedure Code that it could be said to be without jurisdiction and, thereforee, a nullity, so as to be covered by the ratio of the Supreme Court in Daula Bhai v. State of Mudhya Pradexh, : [1968]3SCR662 . It was after all an interlocutory order.

(7) Learned counsel for the petitioner urged that the petitioner must nave some remedy against such a wrong order and that it would be unreasonable that there' should be no remedy at all against it. The maxim Ubi Jus Ibi Remedium must, however, be properly understood. Otherwise it is capable of being misapplied. The reason why the petitioner does not have a remedy against the impugned order is that no right of the petitioner has been infringed by it. Vis-a-vis the parties already on record the joinder or the non-joinder of a stranger would generally be regarded as a, procedural matter which does not affect the rights of the parties (Ved Parkash Kapur v. Harish Chander (1967) D.L.T. 341 But the same may not be true as to a person who wants to be joined as a party to protect his own rights, For instance, a landlord may bring suit against a person calling him his tenant though in fact he may not be the real tenant. Another person may apply for being joined as a parly on the ground that he is a tenant. If his application for joinder is refused then such a real tenant would be prejudiced and he would have a right to appeal against the refusal of the Controller to join him as a party. Otherwise the landlord would obtain an order of eviction against the fictitious tenant and execute it against the real tenant and the real tenant would be denied an opportunity of showing that he is the real tenant. thereforee, the question whether an order under the principle of order 1 Rule 10 Civil Procedure Code is procedural or whether it affects the rights of a person should be considered in the light of the' circumstances of each case and it would be risky to make a generalization that any order under Order 1 Rule 10 C.P.C. would always be procedural.

(8) It is not the purpose of Article 227 to correct a mistake of the Co;itroller in making an interlocutory order within initial jurisdiction which was of a procedural nature vis-a-vis the petitioner. The petitioner cannot, thereforee, seek to quash the impugned order under Article 227. The petition is, thereforee, dismissed but without any order as to costs.


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