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EdwIn Stephen and anr. Vs. Sada Nand and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 161 of 1973
Judge
Reported in19(1981)DLT88; 1981(2)DRJ2
ActsCode of Civil Procedure (CPC), 1908 - Sections 151; Delhi Rent Control Act, 1958 - Sections 38
AppellantEdwIn Stephen and anr.
RespondentSada Nand and ors.
Advocates: H.R. Khanna,; R.K. Makhija and; Alok Kumar, Advs
Cases ReferredIn Mary Threys Fernanda v. C.I. Philip
Excerpt:
.....against the dismissal of revival application. he also 01ed a separate application for revival of eviction proceedings. the tribunal dismissed the appeal against the order holding the eviction order to be a nullity but allowed the appeal against the order refusing to revive the eviction proceedings : the tenant appeals to high court :; the controller who declared the eviction order to be a nullity has inherent jurisdiction to revive the eviction proceedings.; delhi rent control act, 1958 section 38-eviction order passed against minors without appointing guardian under order 32, c.p.c. : order held nullity in execution proceedings : application for revival of eviction proceedings under section 151, c.p.c. dismissed by controller : on appeal the tribunal sets aside the order and revives..........law. in our judgment, there is no difference in substance or principle between a case in which a decree passed against a person is set aside by a subsequent proceeding and a case in which the decree is declared null and void and inoperative in subsequent proceedings; and the suit in which the inoperative decree was passed can be revived against a defendant in whose favor such a decree is passed in a subsequent proceeding'.(7) in sunder lal v. kunwar hari har sahai and others : air1937all552 it has been held, 'where proceedings taken to appoint a guardian-ad-litem for a minor in a suit have been declared to be invalid, and the suit cannot proceed unless such proceedings are properly initiated and completed, the court whose duty ultimately is to appoint such a guardian has inherent power.....
Judgment:

Sultan Singh, J.

(1) This is second appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act'). The question for decision is whether the Controller has power to revive eviction proceedings, when the eviction order passed against the minors, without appointment of a proper person be a guardian under order 32 of the Code of Civil Procedure (hereinafter called 'the Code'), has been held to be a nullity by the Controller during execution proceedings.

(2) This question has arisen in this case and the relevant facts are : Fateh Chand Wadhwa, predcessor-in-interest of respondents 1 to 4 filed and aplication for eviction from a portion of the property No. 5156, Ward Xi, Faiz Ganj, opposite Pataudi House, Darya Ganj, Delhi, against respondents 5 to 10 and appellant No. 2 Rodrick Stephen, Veena, Anil and Vijay respondents 7 to 10 in this appeal were described as minors. The eviction was claimed under various clauses of the proviso to sub-section (1) of Section 14 of the Act. Harry Stephen, appellant No. 2, filed a written statement pleading, inter alia, that his real uncle Edwin Stephen, appellant No. 1, was the head of the family and was in occupation of the premises as a tenant and was a necessary party. In view of this plea, the Controller directed that Edwin Stephen be added as a party to the eviction proceedings. His name was accordingly added and is now appellant No. 1 in this appeal. Ultimately an order of eviction was passed by the Additional Controller on 15th December, 1966. The tenants' appeal was dismissed by the Rent Control Tribunal on 1st March, 1968. It appears that Fateh Chand Wadhwa died and respondents Nos. 1 to 4 were substituted as heirs and legal representatives. An application for execution of the eviction order was filed before the Additional Controller. The judgment-debtors filed objections under Section 47 of the Code of Civil Procedure pleading that no guardian ad-litem of the minors i.e. respondents 7 to 10 was appointed in the eviction petition, that the minors were not at all represented by any legal guardian and thereforee the eviction order was a nullity. The decree-holders contested the objections. The Additional Controller, however, vide his order dated 12th September, 1969 held that the minors were not duly represented and the eviction order was a nullity and that the same could not be executed. The decree-holders filed an application that the original eviction petition remains undecided as the eviction order has been held to be a nullity and that the eviction application be revived and decided after service of the notice on the opposite party and appointment of guardian-ad-litem in accordance with law. This application was opposed on the ground that the eviction order passed by the Additional Controller on 15th December 1966 merged with the order dated 1st March, 1968 passed by the Tribunal and thereforee the Additional Controller has no jurisdiction in the matter and the remedy, if any, lay with the Tribunal. The Additional Controller upheld the objection and dismissed the decree-holders' application for revival vide order dated 4th May, 1970. The landlords-decree-holders filed two appeals (1) against the order dated 12th September, 1969 holding the eviction order to be a nullity and (2) against the order dated 4th May, 1970 refusing to revive the eviction proceedings. While these appeals were pending before the Rent Control Tribunal the decree-holders-landlords filed an application for revival of the eviction proceedings before the Tribunal also. It was contended that the revival should be ordered by the Tribunal and that the two orders passed by the Additional Controller dated 12th September, 1969 and 4th May, 1970 were not in accordance with law, and that the Additional Controller failed to exercise jurisdiction vested in it to revive the eviction proceedings. The Rent Control Tribunal by the impugned order dated 1st May, 1973 dismissed the landlords' appeal against the order holding the eviction order to be a nullity and accepted the appeal against the order refusing to revive eviction proceedings on the basis that when the Additional Controller could declare the eviction order a nullity he could order its revival and also taking into consideration the application for revival of eviction proceedings, filed by the landlords-decree-holders before the Tribunal. Edwin Stephen and Harry Stephen have filed this appeal against the order of revival of eviction proceedings.

(3) The learned counsel for the appellants has raised two questions :

(I)Eviction proceedings cannot be revived under inherent powers on the application of the landlord when the eviction order has been declared or held to be a nullity during execution proceedings. (ii) No appeal lies from an order under Section 151 Civil Procedure Code passed by the Additional Controller.

(4) It is now not disputed that if minor defendant in a suit was not duly represented through a guardian, under Order 32 rule 3 of the Code and the decree was passed, the same is a nullity and could not be executed. This is so in view of the law laid down by the Supreme Court in Ram Chandra Arya v. Man Singh and another, : [1968]2SCR572 in which case a decree against lunatic without appointment of guardian was passed. Sale was held in execution of that decree. It was held that the decree was a nullity and the sale held in execution of that decree was void ab inilio. Provisions contained in Order 32 rule 3 of the Code are mandatory. Respondents 7 to 10 were described as minors in application. As required by Order 32 rule 3 of the Code appointment of the guardian was necessary. In fact no application for appointment of their guardian was made before the Additional Controller. Thus there is no doubt that the minor respondents Nos. 7 to 10 in this appeal were not properly represented and thereforee the order of the Additional Controller and confirmed by the Tribunal that the eviction order was a nullity and could not be executed, is in accordance with law.

(5) The question, however, is how to revive eviction proceedings In the Code there is no specific provision for revival of a suit or proceedings in such circumstances. It thereforee appears that the inherent powers could be exercised under Section 151 of the Code which is as under :

'S.151 : Saving of inherent power of court : Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.'

(6) When there is no specific provision in the Code, the court or the judicial authority has jurisdiction to make such orders as may be necessary for the ends of justice. By a slip or mistake on the part of the Additional Controller eviction proceedings were concluded and eviction order was passed without complying with the provisions of Order 32 rule 3 of the Code. In fact as already stated no application for appointment of guardian of the minors was made by the landlords. Thus it may be said to be a slip on the part of the landlords who failed to file application for appointment of a guardian as well as on the part of the Additional Controller who proceeded with the decision of the eviction application without appointment of guardian of the minors. It is well known that for a mistake on the part of the court, nobody should suffer. When the eviction order is held to be a nullity, it seems to me that the Additional Controller who declared the eviction order to be a nullity has inherent power to revive eviction proceedings. An eviction order passed by the Additional Controller, merges with the order passed by the Rent Control Tribunal on appeal. It is also well known that the Additional Controller, who is the executing court, has power to determine and declare whether the eviction order was a nullity and as such incapable of execution. When he can determine the question of nullity of an eviction order which merged with the order of the Tribunal, he can also revive the eviction proceedings after declaring the eviction order to be a nullity. Thus it seems to me that the Additional Controller refusing to revive the eviction proceedings after declaring the eviction order to be a nullity failed to exercise jurisdiction vested in him. This failure to exercise jurisdiction affects the rights of the landlords under the Delhi Rent Control Act, 1958 and thereforee they had a right to file an appeal under Section 38 of the Act. The judgment- debtor had two remedies; (i) to challenge eviction order during the execution proceedings or (ii) to file a separate suit for declaration that the eviction order was a nullity as the minor defendants were not duly represented in accordance with Order 32 rule 3 of the Code. In the present case, the judgment-debtors took objection during the execution proceedings. The Additional Controller held the eviction order to be a nullity. The argument of the learned counsel for the appellants is that if a separate suit is filed for declaring the decree a nullity, the original proceeding or suit may be revived inview of the decree in the suit for declaration. But if the decree is held to be a nullity during execution proceedings under Section 47 of the Code, the court, which decided the original suit, has no jurisdiction to revive the same under its inherent powers. I do not agree. Learned counsel for the appellants could not bring to my notice any authority that the proceedings could not be revived when the executing court found the order to be a nullity on the ground that the minor had not been properly represented. There are various judgments reviving the original suit where the decree has been held to be a nullity on the ground that the minor had not been represented properly. It appears that there is no difference for reviving the original proceedings on the basis of a declaratory decree in a separate suit and on the basis of an order during execution proceedings holding the decree to be a nullity on the ground that the minor had not been properly represented. In Talib Ah Shah v. Piarey Lal and another, Air 1930 Allahabad 644, it has been held that subsequent to the discovery that the minor has not been properly represented by a duly appointed guardian it is open to the court in the exercise of its inherent power under Section 151 of the Code to restore the case to its original number on the file and proceed with it after duly appointing a guardian. In this case an objection was raised during execution. The executing court allowed the objections and restored the original case for decision in accordance with law. In Samaresh Chakravarti and another v. Jalpaiguri Banking & Trading Corporation Ltd. : AIR1931Cal168 a suit against a person was decreed ex parte. Proceedings in lunacy proving that defendant was lunatic on the date of suit. The defendant died subsequently. The decree was sought to be executed against the legal representatives who objected to the execution of decree on the ground of decree being nullity. The decree-holder filed an application for setting aside the decree and for restoration of the suit and decision in accordance with law. The decree was set aside and the suit was restored. In Monmohini Das Purjayastha and others v. Behari Shaha and others : AIR1936Cal421 it has been observed as under :

'THEREis no difference in substance as between declaration that a decree is null and void and inoperative as such and setting aside the same in a case in which the only prayer was for a declaration that a decree was inoperative. This distinction was far too technical to be appreciated properly ; and it could not, in our judgment, be allowed to stand in the way of justice being done in a case. The authority of decisions of this Court are, as has been pointed out by our learned brother, in favor of the position that the original suit is revived, and must be proceeded with, in the case of a decree being set aside in a suit brought for the purpose of setting aside the same; and no authority of any decided case was pointed out to us that there is any difference in substance as between a decree declaring a decree null and void and inoperative as such and a decree setting aside a decree previously passed on the ground that a procedure followed was defective under the law. In our judgment, there is no difference in substance or principle between a case in which a decree passed against a person is set aside by a subsequent proceeding and a case in which the decree is declared null and void and inoperative in subsequent proceedings; and the suit in which the inoperative decree was passed can be revived against a defendant in whose favor such a decree is passed in a subsequent proceeding'.

(7) In Sunder Lal v. Kunwar Hari Har Sahai and others : AIR1937All552 it has been held, 'where proceedings taken to appoint a guardian-ad-litem for a minor in a suit have been declared to be invalid, and the suit cannot proceed unless such proceedings are properly initiated and completed, the Court whose duty ultimately is to appoint such a guardian has inherent power under Section 151 of the Code to revive the suit'. In Mary Threys Fernanda v. C.I. Philip, : AIR1958Ker175 it has been observed as follows:

'If the court passing the original decree is the same court which set it aside, then the court can suo motu restore the prior suit and proceed with it in view of his decree in the subsequent suit, and, if he can, a direction to that effect in the subsequent suit cannot be without jurisdiction. That apart, if a court has jurisdiction to declare that a decree passed in a prior suit, whether by itself or by some other court, is not binding against a particular party and, if necessary, to set aside it must have jurisdiction to declare what exactly are the rights of the parties in respect of the prior suit.'

(8) In Abdul Qayum Shah and others v. Mohd. Sadiq, son of Fazal Rahman and another, Air 1949 Peshawar 9 the following observation appears :

'WHEREa court cancels a decree standing against the plaintiff on the ground that it was a nullity having been obtained against him when he was a minor and was not duly represented by a guardian ad litem in the suit, it can under its inherent powers, in order to do justice to the parties aggrieved by the cancellation of the decree, revive the original suit in which the said decree was passed and put the minor to the same position in which he was on the date on which it was filed.'

(9) THUS. I am of the view that the Controller who declared an eviction order to be a nullity has inherent jurisdiction to revive the eviction proceedings. He refused to revive the eviction proceedings. This refusal affected the rights of the landlords-decree-holders and thereforee it was an order under the Act and as such appealable under Section 38 of the Act. The appeal of the landlords against the order dated 4th May, 1970 was thus maintainable before the Rent Control Tribunal. There is no infirmity in the order of the Rent Control Tribunal. I am told that after revival of proceedings as per impugned order dated 1st May, 1973 passed by the Rent Control Tribunal, the Additional Controller passed the eviction order on 20th August, 1977 which was subsequently confirmed by the Tribunal on 9th July, 1978. It is also stated before me that the tenant filed an appeal in this Court which was dismissed in liming. There is no merit in the appeal and the same is thereforee dismissed with no order as to costs.


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