Bal Kishan Vs. Om Prakash & ANR
[1986] INSC 178 (26 August 1986)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) KHALID, V. (J)
CITATION: 1986 AIR 1952 1986 SCR (3) 622 1986
SCC (4) 155 JT 1986 253 1986 SCALE (2)347
ACT:
Haryana Urban (Control of Rent and Eviction)
Act, 1973, Ss. 2(h) and 13(2) (ii) (a)-Eviction on the ground of sub- letting
whether legal heir of tenant can be treated as a tenant.
Code of Civil Procedure, 1908, O.XXII Rule
4--Legal representative of the deceased respondent-Lenant-Whether can be
treated as a tenant and not a trespaper.
HEADNOTE:
The appellant was brought on record, as the
legal representative of the deceased-tenant during the pendency of an eviction
petition. He filed an additional written statement contending that the premises
in question being non-residential and commercial premises, the legal heir of a
tenant could not be treated as a tenant as defined under s.
2(h) of the Haryana Urban (Control of Rent
& Eviction) Act and therefore, the possession of such legal heir of a
tenant would be that of a trespasser and, the Rent Controller had no
jurisdiction to proceed with the case as he was not competent to pass a decree
for possession against a trespasser. Overruling the said contention, the Rent
Controller allowed the petition for eviction on the ground that the tenant had
sublet the premises in favour of respondent No. 2 without the written consent
of the landlord. The appellant's appeal and the revision before the Appellate
Authority and the High Court respectively failed.
Dismissing the appeal by the appellant, ^
HELD: 1. The plea of the appellant that he
was holding the property as a trespasser is not tenable because the possession
of the tenant being permissive, the possession of the appellant who had
succeeded to the estate of the tenant as his heir could not be that of a
trespasser in the circumstances of the case. He could not, therefore, resist
the passing of the decree for eviction on proof of the ground in s. 13(ii) (a)
of the Act. [525G-H; 526A] 623
2. Order XXII Rule 4 of the Code of Civil
Procedure 1908 provides that where one of two or more defendants dies and the
right to sue does not survive against the surviving defendant or defendants
alone, or a sole defendant or sole surviving defendant dies and the right to
sue survives, the court, on an application made in that behalf, shall cause the
legal representative of the deceased defendant to be made a party and shall
proceed with the suit. Sub-rule (2) of rule 4 of Order XXII authorises the
legal representative of a deceased defendant or respondent to file an
additional written statement or statement of objections raising all pleas which
the deceased tenant had or could have raised except those which were personal
to the deceased defendant or respondent. [625D-G] In the instant case, since
the action related to property, the right to sue did survive and the Rent
Controller was right in bringing the legal representative, of the
deceased-tenant, on record. The appellant could not have therefore, in the
capacity of the legal representative of the deceased-respondent who was
admittedly a tenant, raised the plea that he was in possession of the building
as a trespasser and the petition for eviction was not maintainable. [625G-H]
3. It is possible for the court in an
appropriate case to implead the heirs of the deceased defendant in their
personal capacity also in addition to bringing them on record as legal
representatives of the deceased defendant avoiding thereby a separate suit for
a decision on the independent title. But, in the instant case, the appellant
cannot claim the aforesaid benefit for two reasons. First the appellant had not
been brought on record as respondent in the eviction petition in his personal
capacity but had been brought on record only as the legal representative of the
tenant. Secondly, even if a prayer had been made to bring the appellant on
record in his personal capacity, the Rent Controller could not have allowed the
application and permitted him to raise the plea of independent title because
such a plea would oust the jurisdiction of the Rent Controller to try the case
itself. [626E-F] Jagdish Chander Chatterjee & Ors. v. Sri Kishan &
Anr., [1973] 1 SCR 850, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
1960 of 1980 From the Judgment and Order dated 23.7.1980 of the Punjab &
Haryana High Court in C.R. No. 904 of 1980 624 Mrs. Urmila Kapur and S.N.
Agarwala for M/s. B.P. Maheshwari & Co. for the Appellant.
S.K. Mehta, M.K. Dua, Aman Vachhar and E.M.S.
Anam for the Respondents.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. The Ist Respondent Om Parkash is the landlord of a building
situated in Ferozpur Jhirka, District Gurgaon in the State of Haryana. He had
leased out the said premises in favour of one Musadi Lal for a commercial
purpose. After Musadi Lal took the premises on lease he sub- let the premises
in favour of Med Ram-Respondent No. 2 without the written consent of the
landlord Om Parkash.
Thereupon Om Parkash filed a petition for
eviction against Musadi Lal and Med Ram before the Rent Controller, under the
provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (Act
No. 11 of 1973) (hereinafter referred to as 'the Act') on the ground mentioned
in section 13(2) (ii) (a) of the Act which entitled the landlord to file a
petition for eviction where the tenant had after the commencement of the Act
without the written consent of the landlord transferred his right under the
lease or sub-let the building. Musadi Lal and Med Ram, the tenant and the
alleged sub-tenant respectively were impleaded as the respondents to the
petition. During the pendency of the petition Musadi Lal died. Thereupon Bal
Kishan, the appellant herein, filed an application before the Rent Controller
to bring him on record as the legal representative of the deceased Musadi Lal
alleging that he was the adopted son of Musadi Lal. The said application was
opposed by the landlord. Overruling the objections of the landlord the Rent
Controller ordered that the appellant Bal Kishan should be brought on record as
the legal representative of the deceased Musadi Lal. After the above order was
passed Bal Kishan filed an additional written statement contending that the
premises in question being non-residential and commercial premises, the legal
heir of a tenant could not be treated as a tenant as defined under section 2(h)
of the Act and, therefore, the possession of such legal heir of a tenant would
be that of a trespasser.
That being the case, according to the
appellant, the Rent Controller had no jurisdiction to proceed with the case as
the Rent Controller was not competent to pass a decree for possession against a
trespasser. On the above ground the appellant prayed for the dismissal of the
eviction petition.
Overruling the said contention, the learned
Rent Controller allowed the petition for eviction holding that Musadi 625 Lal
had sub-let the premises in favour of Med Ram, Respondent No. 2 without the
written consent of the landlord. Against the judgment of the Rent Controller, the
appellant filed an appeal before the Appellate Authority at Gurgaon. That
appeal was dismissed. Against the judgment in that appeal, the appellant filed
a revision petition before the High Court which was also dismissed. This appeal
by special leave is filed against the judgment of the High Court.
In this appeal also it is contended that the
proceedings before the Rent Controller were without jurisdiction since the
appellant was not a tenant as defined in section 2(h) of the Act because the
building in question was a non-residential building. That Musadi Lal was a
tenant under Respondent No. 1 is not disputed. We shall assume for purposes of
this case but without deciding, that the appellant Bal Kishan was not entitled
to be treated as a tenant of the building in question under the Act on the
death of Musadi Lal. The question for consideration is whether in the
circumstances of this case the Rent Controller had lost his jurisdiction to try
the case before him.
Order XXII Rule 4 of the Code of Civil Procedure,
1908 provides that where one of two or more defendants dies and the right to
sue does not survive against the surviving defendant or defendants alone, or a
sole defendant or sole surviving defendant dies and the right to sue survives,
the Court, in an application made in that behalf, shall cause the legal
representative of the deceased defendant to be made a party and shall proceed
with the suit. Since the action in this case related to property, the right to
sue did survive and the Rent Controller was right in bringing the legal
representative of the deceased Musadi Lal on record. Sub-rule (2) of rule 4
Order XXII authorises any person who is brought on record as the legal
representative of a defendant to make any defence appropriate to his character
as legal representative of the deceased defendant.
The said sub-rule authorises the legal
representative of a deceased defendant or respondent to file an additional
written statement or statement of objections raising all pleas which the
deceased tenant had or could have raised except those which were personal to
the deceased defendant or respondent. In the instant case Bal Kishan, the
appellant could not have, therefore, in the capacity of the legal
representative of the deceased respondent Musadi Lal who was admittedly a
tenant, raised the plea that he was in possession of the building as a
trespasser and the petition for eviction was not maintainable. It is true that
it is possible for the Court in an appropriate case to implead the heirs of a
deceased defendant in their 626 personal capacity also in addition to bringing
them on record as legal representatives of the deceased defendant avoiding
thereby a separate suit for a decision on the independent title as observed in
Jagdish Chander Chatterjee & Ors. v. Sri Kishan & Anr., [1973] 1 S.C.R.
850. The relevant part of that decision at page 854 reads thus:
"Under sub-clause (ii) of Rule 4 of
Order 22 Civil Procedure Code any person so made a part as a legal
representative of the deceased respondent was entitled to make any defence
appropriate to his character as legal representative of the deceased
respondent. In other words, the heirs and the legal representatives could urge
all contentions which the deceased could have urged except only those which
were personal to the deceased. Indeed this does not prevent the legal
representatives from setting up also their own independent title, in which case
there could be no objection to the court impleading them not merely as the
legal representatives of the deceased but also in their personal capacity
avoiding thereby a separate suit for a decision on the independent title."
But in the instant case the appellant cannot claim the benefit of the above
decision for two reasons. First, the appellant had not been brought on record
as a respondent in the eviction petition in his personal capacity but had been
brought on record only as the legal representative of Musadi Lal. Secondly, in
the circumstances of this case, even if a prayer had been made to bring the
appellant on record in his personal capacity, the Rent Controller could not
have allowed the application and permitted him to raise the plea of independent
title because such a plea would oust the jurisdiction of the Rent Controller to
try the case itself.
The observations made in the Jagdish Chander
Chatterjee & Ors. case (supra) have to be confined to only those cases
where the Court hearing the case has jurisdiction to try the issues relating to
independent title also. The Rent Controller, who had no jurisdiction to pass
the decree for possession against a trespasser could not have, therefore,
impleaded the appellant as a respondent to the petition for eviction in his
independent capacity. We do not, therefore, find any substance in the above
plea of the appellant.
Further the plea of the appellant that he was
holding the property as a trespasser is also not tenable because the possession
of Musadi Lal being permissive, the possession of the appellant who had
succeeded to the estate of Musadi Lal as his heir could not be that of a
trespasser in the circumst- 627 ances of the case. He could not, therefore,
resist the passing of the decree for eviction on proof of the ground in section
13(2) (ii) (a) of the Act.
We agree with the findings recorded by the
Rent Controller and the Appellate Authority which have been affirmed by the
High Court that Musadi Lal had sub-let the premises without the written consent
of the landlord and, therefore, the legal representative of the tenant and the
sub-tenant were liable to be evicted from the premises under the Act. The
appeal, therefore, fails and it is dismissed.
There will be no order as to costs.
M.L.A. Appeal dismissed.
Back
