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Kedar Nath and anr. Vs. Mohani Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal Nos. 6 and 54 of 1968 and Civil Miscellaneous Appeal Nos. 969 , 970, 972 and 973 of 19
Judge
Reported inAIR1974Delhi171; ILR1972Delhi936
ActsDelhi Rent Control Act, 1958 - Sections 39; Code of Civil Procedure (CPC), 1908 - Sections 120 - Order 22, Rule 4; Limitation Act, 1963 - Sections 120
AppellantKedar Nath and anr.
RespondentMohani Devi and ors.
Advocates: T.C.P. Lal,; I.P. Gupta and; Vijay Gupta, Advs
Cases ReferredSmt. Roopo Devi v. Om Parkash S.A.O. No.
Excerpt:
.....the provisions of article 120 of limitation act & c.p.c. are applicable to second appeals--civil procedure code and the limitation act (1963), article 120.; that the provisions of c.p.c. apply to the appeals coming to the high court under section 39 of the delhi rent control act although the provisions of the said act do not indicate the procedure applicable to such appeals. it, thereforee, necessarily follows that article 120 of the limitation act also applies.; (ii) civil p.c. (1908) - order 22, rules 4 and 11--abatement--appellant dying during pendency of appeal--one of his legal representative already on record in another capacity--appeal does not abate. - - appeals taken against these orders to the rent control tribunal failed because the tribunal..........justice s.n. shankar one of the questions canvassed was whether article 120 in the schedule to the limitationlimitation act was applicable. that article refers to applications 'under the code of civil procedure', and so the answer depends on whether the code of civil procedure applies to an appeal under section 39 of the delhi rent control act, 1958. as there were divergent views expressed in some judgments of this court on these questions, the referring order was made. these are the questions which we have now to decide. in the delhi rent control act, 1958 the section providing for appeals to the high court is section 39, which reads: 'second appeal.-(1) subject to the provisions of sub-section (2), an appeal shall lie to the high court from an order made by the tribunal within sixty.....
Judgment:

T.P.S. Chawla, J.

(1) These two second appeals from orders were referred to a larger Bench by Mr. Justice S.N. Shankar because he found that there was divergence in the decisions of this court on the questions whether the Code of Civil Procedure, 1908 and the Limitation Act, 1963 were applicable to an appeal under section 39 of the Delhi Rent Control Act, 1958.

(2) The litigations out of which these appeals have arisen have followed more or less an identical course. We will refer to it briefly in order to show the questions we are called upon to decide have arisen. Mr. Kedar Nath, an advocate, instituted two separate proceedings for eviction against his tenants who held different premises on lease from him. In one proceeding which has given rise to S.A.O. No. 6 of 1968) the tenant was Naubat Ram. In the other (which has given rise to S.A.O. No. 54 of 1968) the tenants were Prabhu Dayal and Mamman Lal. The tenants in both the premises died while proceedings were pending before the Additional Rent Controller. Their legal representatives were brought on record and amended petitions were filed, in the amended petitions it was contended. that the heirs of the deceased tenants had not inherited the tenancy because it was a statutory tenancy, and consequently they had tenancy no right to remain in possession of the premises. The additional Rent Controller formed the opinion that as the relationship of landlord and tenant was no longer alleged to subsist between the parties, the petitions for eviction were not maintainable. Consequently, he dismissed both the petitions on this ground. Appeals taken against these orders to the Rent Control Tribunal failed because the Tribunal concurred with the Controller.

(3) Then, in 1968, the two second appeals now before us were brought against the orders of the Tribunal. While these appeals were pending Mr. Kedar Nath died. He died on the 10th of April, 1971. On the 20th of August, 1971, two sets of applications were moved. By one set the legal representatives of Mr. Kedar Nath applied to have the abatement of the appeals set aside and also to be imp leaded in place of the deceased appellant. These are C. Ms. Nos. 969 and 972 of 1971. In the other set (C. Ms. Nos. 970 and 973 of 1971) they prayed for condensation of the delay in filing the first set of applications. All these applications were opposed by the respondents in the appeal. When the applications came up for hearing before Mr. Justice S.N. Shankar one of the questions canvassed was whether Article 120 in the Schedule to the LimitationLimitation Act was applicable. That article refers to applications 'under the Code of Civil Procedure', and so the answer depends on whether the Code of Civil Procedure applies to an appeal under Section 39 of the Delhi Rent Control Act, 1958. As there were divergent views expressed in some judgments of this court on these questions, the referring order was made. These are the questions which we have now to decide. In the Delhi Rent Control Act, 1958 the section providing for appeals to the High Court is Section 39, which reads:

'SECOND appeal.-(1) Subject to the provisions of sub-section (2), an appeal shall lie to the High Court from an order made by the Tribunal within sixty days from the date of such order: Provided that the High Court may entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (2) No appeal shall lie under sub-section (1) unless the appeal involves some substantial question of law.'

(4) This laconic conferment of the right of appeal contains no indication of the procedure applicable thereto. Nor does any other provision in the Act or the rules framed there under. Although Section 37 of the Act and rule 23 are concerned with procedure, they do not refer to the High Court. How then does one decide what is the procedure applicable to such an appeal brought to the High Court? The problem is not difficult of solution. There is a well known and well established legal principle applicable to such a case, the most authoritative statement of which, so far as this Court is concerned, is to be found in South Asia Industries (P) Ltd. v. S.B. Sarup Singh and others, : [1965]2SCR756 where the Supreme Court said:

'A statute may give a right of appeal from an order of a tribunal or a Court to the High Court without any limitation thereon. The appeal to the High Court will be regulated by the practice and procedure obtaining in the High Court.'

(5) In that judgment, the Supreme Court quotes with approval a passage from an earlier case decided by it. National Sewing Thread Co. Ltd. Chidambaram v. James Chadwick and Bros. Ltd. : [1953]4SCR1028 , in which the same principle is enunciated. That passage reads:

'obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then the appeal must be regulated by the practice and procedure of that Court.'

(6) In these judgments, an abundance of authority is noticed in support of that principle. The principle is clear, and the result of its application to the present question is obvious. Clearly the Code of Civil Procedure does apply to appeals coming to the High Court under Section 39 of the Act. If that were not so, the answer to the problem would be indeterminate. No draftsman could have intended such a result. We think it is legitimate to assume that the draftsman was well aware of the legal principle to which we have referred, and his silence is meaningful in that he intended the result which flows from its application.

(7) The same conclusion was reached by Mr. Justice v.S. Deshpande in the case reported as Shiv Datt Sharma v. Prem Kumar Bhatia, 1969 R.C.J. 555 C), and he relied on the same principle. However, in The Life Insurance Corporation of India v. M/s. Meghraj Manulal, 1970 R.C.R. 794(4), Mr. Justice P.N. Khanna seems to have taken a different view. There also an application was moved for impleading the legal representatives of the deceased respondent in the appeal pending in the High Court, beyond the time allowed by Article 120 of the Limitation Act. Dealing with this application the learned Judge said:

'further this is not an application under the provisions of Order 22 of the Code of Civil Procedure, as the said Code in its terms is not applicable to proceedings under the Act.'

and again, a little further down, he said:

'an application for bringing on record the legal representatives would not, thereforee, be an application, strictly speaking, under the Code of Civil Procedure, and the limitations prescribed in Article 120 of the Limitation Act, 1963 (or Article 177 of the Limitation Act, 1908) would not be applicable. The application cannot, thereforee, be said to be barred by time.'

We say nothing as to the correctness of these observations so far as they were meant to refer to proceedings before the Controller and the Tribunal. But, to the extent that they equate proceedings in a second appeal in the High Court with those proceedings, we think, with respect, that the learned Judge was in error because Section 37 of the Act and rule 23 do not refer to the High Court, whereas the judgment seems to proceed on the assumption that they did.

(8) From the conclusion we have reached that the Code of Civil Procedure applies to appeals under Section 39 of the Act, it necessarily follows that Article 120 of the Limitation Act also applies. It was suggested by counsel for the applicants that section 56(2)(a) of the Act evinced an intention that the Limitation Act should not apply, because power is given to the Central Government to make rules providing for 'the period within which an application may be made to the Controller.' We think, this argument is not well-founded for the obvious reason, apart from others, that again that section refers only to the Controller. No other reason was suggested why the Limitation Act did not apply, and we hold that it does.

(9) With these conclusions we proceed to decide the applications before us. Here, counsel for the applicants took a preliminary point. He said that as Bhimeshwar Nath, one of the sons of the deceased appellant was party on record throughout and was also a co-appellant in the appeals, the appeals had never abated and the other legal representative's could be brought on record at any time. For this proposition he relied on Ram Das and another v. Deputy Director of Consolidation Ballia and others, : AIR1971SC673 , and Mahabir Prasad v. Jage Ram and others : [1971]3SCR301 . These cases do support his contention. In the latter of these cases the Supreme Court said:

'where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate.'

We are bound by that statement of the law, and must hold that the appeals did not abate because Bhimeshwar Natli, one of the legal representatives of the deceased appellant, was already on record. In the circumstances, all that needs to be done is that the other legal representatives should be formally brought on record.

(10) Alternatively, we are satisfied that the abatements ought to be set aside. It is not disputed that the applications to set aside the abatements were made within the time allowed by Article 121 of the Limitation Act. The only question is whether the applicants were prevented by sufficient cause from continuing the suit, which is the requirement of Order 22 Rule 9(2) of the Code of Civil Procedure for the setting aside of an abatement. The applicants have, thereforee, to explain why they did not move the applications for being imp leaded before the' 9th of July, 1971, when the 90 days allowed for this purpose by Article 120 of the Limitation Act expired. They say that they were not aware of these appeals till the 10th of August, 1971. On that day whilst searching through the papers of the deceased appellant they came to know of these appeals. Thereupon, K.N. Kedar, the eldest son of the deceased, made immediate efforts to contact Mr. Tara Chand Brij Mohan Lal, Advocate, who had filed the appeals. He was able to meet Mr. Tara Chand Brij Mohan Lal on 12^1 August, 1971, but was asked to come again on the 16th August, 1971. On the 16th of August, 1971, he was given the files of the case and told to engage Mr. J.P. Gupta, Advocate, for moving the necessary applications. He contacted Mr. J.P. Gupta on the 18th, and the applications were filed on the 20th of August, 1971.

(11) These allegations have not been denied by the respondents except in a general way; nor has any suggestion been made that the Explanationn given is false. It is not reasonable to expect that the members of a bereaved family will immediately after the death of the deceased begin a search of his papers or anticipate that any legal proceedings are pending in which steps have to be taken. We find nothing improbable in the Explanationn given. After the applicants came to know of these appeals, they acted promptly in contacting counsel and taking steps to file the applications. Some time was bound to lapse in the process. In the circumstances, we are of the opinion that the applicants were prevented by sufficient cause from moving the applications for being imp leaded earlier.

(12) For these reasons, we allow C.Ms. Nos. 969 and 972 of 1971 as also C.Ms. 970 and 973 of 1971. The legal representatives named in the applications will be formally brought on re- cord, and necessary corrections made in the memorandum of parties.

(13) This brings us to the merits of the appeals. The main question involved in both these appeals is whether, on the death of a statutory tenant, proceedings for eviction can be continued against his heirs even though the landlord denies that the ten- ancy subsists. The same or similar questions have been referred for decision to a larger Bench in Smt. Roopo Devi v. Om Parkash S.A.O. No. 237 of 1971 (7). We think, it will be convenient and expedient that these appeals be heard on merits along with that other appeal and be placed before the same Bench. We direct accordingly.

(14) The costs of the hearing before us will abide the result.


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