Avadh Behari Rohatgi, J.
(1) This is an appeal from the order of the rent control tribunal dated February 21, 1978.
(2) Kanwar Hira Lal and Banarsi Dass were the sons of Bhola Nath. These two brothers had taken on rent a shop in main bazar Mehrauli. On September 30, 1974 their landlady, Smt. Mewa Devi, brought an application for ejectment against them. The sole ground of eviction was that the tenants had defaulted in the payment of rent a second time. It was alleged that inspire of notice of demand dated July Ii, 1974 the tenants did riot pay Rs. 152.50 on account of arrears of rent from November 7, 1973 to September 17, 1974 at the rat,e of Rs. 14.30 per month.
(3) Earlier too a notice dated December 6, 1971 was served on the tenants. And when they did not pay rent an application for eviction was filed against them on July 31, 1972. In those proceedings the additional controller allowed them to deposit the rent and thus gave .them the benefit of section 14(2) of the Delhi Rent Central Act, 1958 (the Act). After those proceedings were over the tenants again committed default in the payment of rent. This second default was the subject matter of these proceedings.
(4) At the outset it may be stated that the tenants have deposited the arrears of rent and future rent under the order of the controller dated January 27, 1975 passed under section 15(1) of the Act. The controller directed the tenants to deposit rent at the rate of Rs. 14.30 per month with ecect from November 7, 1973 and future rent at the same rate by the 15th of each succeeding month. The tenants deposited the rent. Whether the tenants who have been stigmatized as 'second defaulters' by the landlady can be ejected in view of the order made under section 15(1) is a question to which I will return later.
(5) The controller found that the notice of demand dated July Ii, 1974 was duly served on the tenants and they did not pay inspire of demand the arrears of rent due from them. But he held that the notice of demand itself was had inasmuch as the landlady had made a claim for 'damages for use and occupation' and not rent pure and simple. He followed my decision in Pritam Lal v. Smt. Anand Kaur 1976 R.L.R. 271). He took the view that the notice of demand being not in conformity with the requirement of section 14(1)(a) of the Act the application for ejectment was not maintainable. He, thereforee, dismissed, the eviction case.
(6) On appeal the rent control tribunal reached a contrary conclusion. He held that Pritam Lal's ruling was not applicable to the facts of the present case. The notice of demand in question he construed as a notice demanding arrears of rent and not damages. Since he agreed with the controller that the notice of demand was duly served on the tenants he held that this was a case of second default because the tenants did not pay rent inspire of notice of demand. He passed an eviction order against the tenants on the ground of second default. From his decision the tenants appeal to this court.
(7) On the question of service of notice dated July Ii, 1974 there is a concurrent finding and it cannot thereforee be interfered with in second appeal. Four questions arise for decision. It will take them separately. FIRST-QUESTION:
(8) The first question is about the competency of the appeal. The present appeal in this court was filed by Smt.. Kela Devi, widow of Hira Lal, and the surviving tenant, Banarsi Dass. Hira Lal and Banarsi Dass were the original tenants, as I have said. They were alive when the ejectment proceedings were launched against them before the Rent Controller in 1974. The controller dismissed the eviction case.
(9) On August 26, 1977 the landlady brought an appeal before the tribunal impleading Hira Lal and Banarsi Dass as respondents. During the pendency of the appeal in the tribunal Hira Lal died on November 4, 1977. The landlady made an application for bringing the legal representatives of Hira Lal on record. The tribunal by order dated December 1, 1977 directed that in place of Hira Lal (deceased), respondent. No. 1, his two widows, Kela Devi and Chander Kanta, be substituted. This was done. The cause title .of the appeal was accordingly amended. Hira Lal's name was struck out. The names of Kela Devi and Chander Kanta were substituted in his place, Banarsi Dass was then alive. thereforee, in the presence of Kela Devi, Chander Kanta and Banarsi Dass the tribunal heard and determined the appeal. He set aside the order of the controller and passed an eviction order on February 21, 1978. From .the order of the tribunal Banarsi Dass and Kela Devi, widow of Hira Lal, brought the present appeal on March 14, 1978.
(10) During the pendency of this appeal Banarsi Dass died on January 31, 1979. An application was made for bringing his legal representatives on record on May 30, 1979. This application was not made within the prescribed period of 90 days. It was late by 29 days. Whether this application should be allowed and delay should be condoned is one of the points which calls for decision.
(11) The second point is this. This appeal was filed by Banarsi Dass and Kela Devi, a widow of Hira Lal. The other widow, namely, Chander Kanta has not joined in filing this appeal, though she was Substituted by the tribunal as the legal representative of Hira Lal deceased. From the order of the tribunal dated December 1. 1977 it appears that both Kela Devi and Chander Kanta were present before him and they. did not object to their substitution in place of Hira Lal. Is the appeal competent without Chander Kanta having been imp leaded as a party to the appeal, either as appellant or respondent This is the other point for decision.
(12) In my opinion, there is a common answer to both the points. The answer is furnished by Order 41 Rule 4 of the Code of Civil Procedure. Kela Devi can bring the appeal without Chander Kanta. That Chander Kanta has not appealed from the order of the tribunal is not fatal.
(13) It will not be correct to say that the appeal has abated on the death of Hira Lal or Banarsi Dass. Kela Devi .has brought the appeal from the order of the tribunal.. She alone can maintain the appeal under Order 41 Rule 4 Civil Procedure Code Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or the defendants may appeal from the whole decree, and thereupon the appellate court may reverse or vary the decree in favor of all the plaintiffs 'or defendants, as the case may be.
(14) Before the tribunal Kela Devi was imp leaded in the appeal as a respondent. The order of eviction was eventually passed against her jointly with Chander Kanta aad Banarsi Dass. . All the three respondents contested the proceedings before the tribunal and they failed... Now Kela Devi is as much interested in the success of the present appeal as the heirs of Banarsi Dass. The eviction order being joint and indivisible the failure to implead Chander Kanta or the heirs of Banarsi Dass cannot conceivably result in inconsistent decrees being passed in the event of the present appeal being allowed [See : Lal Chand v. Radha Krisham : 2SCR522 ].
(15) Kela Davi was one of the respondents before the tribunal. The decision went against her. She can appeal from the decree. The appellate court has power to reverse the decree in favor of the tenants, appealing and non-appealing. inspire of the omission to bring on the record the heirs of one of the appellants who died during the pendency of the appeal the appellate court can proceed with the appeal and reverse the decree of the trial court in view of the provisions of 0 41 Rr 4 and 33 Civil Procedure Code (Santosh Kumar v. Nandalal) : AIR1963Cal289 . The reason is that the order of eviction proceeds on a ground common to all the respondents. Their paths do not cross. They have a community of interest.
(16) Now I come to the applications made by the legal representatives of Banarsi Dass. He died' on January 31, 1979. On May 30. 1979 two applications were moved. One was under Order 22 Rr 3 and Ii of the Code of Civil Procedure. In this application the legal representatives of Banarsi Dass, his widow, sons and daughters have prayed that they may be imp leaded as appellants in place of Bangrsi Dass deceased, appellant No. 1. The other application is under Order 22 Rule 9 Civil Procedure Code read with section 5 of the Limitation Act. Here the legal representatives of Banarsi Dass pray for setting aside the abatement of the appeal. The ground of delay pleaded in the application is that on account of bereavement the heirs of Banarsi Dass were in a 'sad state of mind' and being illiterate they could not contact their counsel until May 28, 1979 when the eldest son of Banarsi Dass went to him and informed him about the death of his father. Counsel asked him to move swiftly in the matter. Two daughters of Banarsi Dass were living outside Delhi and a few days' time was taken to go to them and obtain their signatures. The application was moved on May 30,1979.
(17) I am satisfied that there is sufficient cause for condensation of delay. Section 5 ought to be liberally construed so as to advance justice, if there is no negligence. It would be futile to lay down precisely as to what considerations would constitute 'sufficient cause' for setting 833 aside the abatement. That would depend on the circumstances of a particular case and each case will have to be decided' by the court on the facts and circumstances of the case. As the Supreme Court has said':
'ANYstatement of illustrative circumstances or facts can tend to be a curb on the free exercise of its mind by the Court in determining whether the fact and circumstances of a particular case amount to 'sufficient cause' or not. Courts have to use their discretion in the matter soundly in the interests of justice.' Union of India v. Ram Charan : 3SCR467 (4).
The heirs of Banarsi Dass were ignorant. They were living under the shadow of grief. They made a bona fide mistake in not bringing' themselves on record within the prescribed period. I accept the Explanationn for delay as satisfactory and condone the delay. [See : Krishna Mohan Ghosh v. Surapati Banerjee (1925) 29Cal. Wn 472 . See : also Abdul Latiff v. FazalAli, : AIR1979Cal353 ].
(18) Counsel referred me to Union of India v. Mai DayalAggarwal, 2nd (1979) I-Delhi (198) (7). He contended that these applications were not propeirly made and ought to be rejected. I am not impressed by this argument. After the death of Banarsi Dass and beyond 90 days the applications were moved. They were certainly made within 150 days. The law prescribes 90 days for bringing. the legal representatives on record and .60 days for setting aside the abatement. The substance of the applications is that abatement may be set aside, delay may be condoned and the legal representatives of Banarasi Dass may be brought on record. This is all that the law requires'. On the first question I hold that the appeal is competent. Second QUESTION:
(19) Counsel for the landlady argued that Kela Devi and the heirs of Banarsi Dass have no right to prefer this appeal because the tenancy of Hira Lal and Banarsi Dass had been terminated by a notice to quit dated December 6, 1971 and thereafter they became statutory tenants. He further contended that the premises being business premises no interest devolves on the heirs of the tenants.
(20) In these proceedings I need not decide whether the tenanncy was validly terminated and 'what was its effect. The reason is that these are proceedings before the rent control authorities under the Act and not in a civil suit for possession in a court of general jurisdiction. The questions of devolution of tenancy rights properly arise in civil proceedings where the relationship of landlord and tenant is denied and it is claimed that such relationship had ceased to exist for reasons, this, that or the other. But before the authorities of limited jurisdiction the relationship of landlord and tenant is the site qua non of rent control proceedings.
(21) It has been authoritatively settled by a bench of five judges of this court that the legal representatives of the deceased tenant represent the estate of the deceased and are accountable to the landlord inasmuch as they obtain possession of the premises from the tenant on his death. The landlord can follow his claim for recovery of possession in the hands of the legal representatives of the deceased tenant. Accordingly his right to sue survives against them. For, when the right to sue survives, the controller on an application shall cause the legal representative of the deceased tenant to be made a party and shall proceed with the suit. The application for ejectment has thus to be proceeded with and is not to be dismissed on the ground that the legal representatives did not inherit the tenancy rights or the protection from eviction (See : Kedar Nath v. Muhini Devi, : AIR1974Delhi171 ].
(22) In the present case the landlady brought the legal representatives of Hira Lal deceased, namely, his two widows, Kela Devi and . Chander Kanta, on record to enable them to defend the appeal. The jurisdiction of the tribunal 'to deal with the appeal continu.ed unaffected and the competence of the application as originally filed remained unimpaired. In substance the appeal continued against Kela Devi and Chandef Kanta as legal representatives and Banarsi Dass who was then living.
(23) thereforee, Kela Devi who originally brought this appeal and the heirs of Banarsi Dass (Banarsi, Dass died during the pendency of this appeal in this court) and who have now been ordered to be imp leaded can successfully maintain, this appeal.
(24) All that is necessary to dispose of this objection is to remember that the landlady, on the death of Hira Lal in the tribunal, had herself imp leaded Kela Devi, his widow, as arespondent to the appeal. In the appeal before the tribunal the landlady succeeded. She obtained an order of eviction against Kela Devi. Now Kela Devi has come in appeal. It is futile to say that Hira Lal had a personal right to remain in the premises as a statutory tenant and that after his death no right to sue survives to his widow which can enable her to bring this appeal against the landlady.
(25) When the landlady made Kela Devi a party respondent she made a representation to her. Now that Kela Devi has come in appeal the landlady is estopped from disputing her right to appeal from the tribunal's decision. Not only was there a representation by the landlady as to an existing matter of fact, but an assurance as to future conduct. When an estoppel binds a party to litigation he is prevented from placing reliance on or denying the existence of certain facts. Estoppel signifies an impediment or bar to a man's invalidating his own solemn act. Considerations of justice sometimes require that, even at the expense of truth, a person should be precluded, as , against another, from denying or asserting a particular fact. Estoppel will prevent the landlady from raising objection to the competency of Kela Devi to appeal from the tribunal's order.
(26) Contemporary writers have accorded an important place to estoppel in the fabric of the law. Cross express the opinion that in strict; theory the law of estoppel must be considered as part of the law of evidence for the most part, yet it. must for the purpose of convenience also be considered as part of each separate branch of subs- tantive law (See : Cross oh evidence 4th ed page 306-307 and 5th ed., page 351-352). It has in many cases been regarded as a rule of substantive law (See : Phipson on evidence 11th ed page 923).
(27) Writers have treated estoppel as belonging to substantive than to adjective law. Lord Wright has said that the whole concept of estoppel can more accurately be viewed as a substantive rule of law. [Canadian and Dominion Sugar Co., Ltd. v. Canadian National Steamships (1947) Ac 46(56) .
(28) I would, thereforee, dismiss this objection on the simple ground of estoppel. Third QUESTION:
(29) The .question is: Is the notice dated July Ii, 1974 a valid notice of demand? The landlady asked for damages. She was not prepared to accept rent pure and unalloyed. She formulated her claim as 'rent as damages for use and occupation'. Whether she calls rent as damages or damages as rent will not make any essential difference. The fact remains that she was not prepared to accept rent from the tenants.
(30) The landlady in her notice dated July Ii, 1974 called , Lal and Banarsi Dass as 'statutory tenant' and phrased her demand of rent in terms of 'damages for use and occupation'. Whether such a claim, is valid under the orthodox law of property I need not decide. But after the advent of the Rent Acts there can be no claim for damages for use and occupation. Even against a statutory tenant the demand must be a demand of rent. 'This is abundantly dear from section 14(1)(a), section 14(2) and section 15 of the Act. A statutory tenant cannot be mulcted in damages. The Supreme Court has said:
'Astatutory tenant is a person who on determination of his contractual right is permitted to remain in occupation so long as he observes and performs the conditions of the tenancy and pays the standard rent and the permitted increases'.
Anand Niwas Ltd. v. Anandji, : 4SCR892 . Section 14(2) of the Act says :
'NOorder for the recovery of possession of any premises shall be made on the ground specified in clause (a) of the proviso to sub-section (1), if the tenant makes payment or deposit as required by section 15 : PROVIDED that no tenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit; once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months'
The proviso deprives the tenant of the benefit of the sub-section only if he makes a 'default in the payment of rent' again. But if no rent is demanded and the landlord chooses to demand damages it will not be, in my opinion, a proper demand.
(31) Counsel for the landlady does not dispute that the tenants' legal representatives can challenge the validity of the notice of demand. A notice of demand must demand rent and not damages. This is what I said in Pritam Lal's case. I take the same view here. I see no point of distinction between that case and this. The demand ' in the notice is a demand for 'damages for use and occupation' and not a demand for rent pure and simple as it ought to be. Even though in para three the landlady alleged that the tenants were 'liable to eviction from the said premises on the ground of non-payment of arrears of rent', the final demand in the notice is: 'Pay damages'. Now the concept of 'damages' carries with it a sense of guilt, blame worthiness, wrong doing and punishment. In a word conduct deserving of the strongest reprobation But. what has the tenant done to earn these derogatory appellations The notice, in my view, is invalid. As I held in Pritam Lal's case so I hold here. Fourth QUESTION:
(32) Lastly, I answer the question which I posed at the beginning. What is die effect of the order made under section 15(1) passed by the controller in this case He directed the tenants to deposit all arrears of rent which they did. But even then the tribunal ordered their ejectment on the ground of 'second default in the payment of rent'.
(33) The 'case of the landlady was based on the proviso to section 14(2) of the Act. The effect of the said proviso is that the tenant cannot get the benefit and avoid ejectment if he has got such a benefit in a previous case. This means that the Controller could not pass an order under section 15(1) in the present case. This was the landlady's own case. If the deposit is ordered by the Rent Controller, as in this case, the provisions of section 15(6) will at once come into operation and the ejectment petition would, immediately fail. section 15(6) of the Act says:
'IFa tenant makes payment or deposit as required by subsection (1) or sub-section (3), no order shall be made for the recovery of possession on the ground of default in the payment of rent by the tenant, but the Controller may allow- such costs as he may deem fit to the landlord'.
It comes to this. In a case covered by the proviso to s. 14(2) no order under s. 15(1) can be passed. (See: Tula Ram v. B. K. Aswani, 1972 Rcj 856) (II).
(34) But in this case the order was passed. Obviously this was done at the instance of the landlady. The tenants opposed but the landlady insisted. Having obtained an order under s. 15(1) the landlady cannot enforce her right to claim ejectment on the ground that the tenants are 'second defaulters'. I will hold that she has waived her right. Even a statutory right can be waived. (See ' A Halsbury Laws of England, 3rd ed. Vol. 36 page 444): It will be unjust to evict the tenant after making an order of s. 15(1) against him.
(35) This case is a good illustartion of election in the conduct of litigation. The landlady by aslang for an order under s. 15(1) adopted an 'inconsistent position. She is estopped, as against her antagonists, from resorting afterward to the course or attitude which, of her free choice, she has waived or discarded. The law will hold her to her choice even though she was unaware of that this could ' ' be the legal consequence of what she did. Whether she appreciated the legal position resulting from the order of s. 15(1) is not material. [Kammins Ballrooms Co., Ltd. v. Zenith Investments ' Ltd. (1970) 2 All E.R. 871 (890, 894) (HL) (12)]. Having adopted an inconsistent course of action, step, and attitude she has waived her right to claim ejectment on second default. This is waiver or election. (Spence Bower & Turner Estoppel, See: Ch. Xiii on Election 3rd ed.)
(36) The landlady obtained an order under s. 15(1) and the tenants deposited the rent. Now she refuses to accord them the benefit of s. 14(2). She wants rent under s. 14(2) and ejectment under the proviso. She said in a word, 'I am not blowing hot and cold. I am going to blow a little hotter at the second defaulters because the 'Act does it.' But the' tenants are entitled to say; 'you have made your choice under the first part of the section. Now you cannot take an inconsistent step or attitude.' Under s. 14(2) the landlord has the choice of two rights, either of which he is at liberty to exercise, but not both. The rights between which he has a choice are mutually exclusive. The truth is that the landlady did not calculate or.draw the parameters of s. 14(2) when she insisted on an order under s. 15(1). All that can safely be advised in such cases is : 'Proceed with caution'.
(37) Section 15(1) is essentially a provision of 'benefit' and not a provision of punishment. The proviso to s. 14(1) and s. 5(1) are not capable of effective co-existence. They address themselves to different situations. The proviso is an exception to the general rule enunciated in the first part. It cuts down and qualifies what has gone before. It has to be interpreted according to the legislative habits of Parliament. The legislature is protecting the first defaulter by giving him a 'benefit' once but punishing the second by denying him the advantage of that 'benefit'. Scannan Lj has said :
'THERent Acts have throughout their -history constituted an interferencs with contract) and property rights for a specific purpose the redress of the balance of advantage enjoyed in a world of housing shortage by the landlord over those who have to rent their homes.' Horford Investments v. Lamber (1976) Ch. 39 (52)(13).
Such is the object of the Rent Acts. They were passed to redress the balance of advantage enjoyed by the landlord over the tenant in 'a world of housing shortage'. To hold that the landlord can get an order of s. 15(1) asking the tenant to pay rent and at the same time obtain his eviction on the ground of second default will be to upset that balance and not redress it.
(38) For these reasons I allow the appeal, set aside the order of the tribunal dated February 21, 1978 and dismiss the ejectment application. There will however be no order as to costs.