Jain Vs. Mrs. Padma Kashyap & Anr  INSC 96 (20 March 1990)
R.M. (J) Sahai, R.M. (J) Shetty, K.J. (J)
1990 AIR 1133 1990 SCR (2) 25 1990 SCC (2) 431 JT 1990 (1) 486 1990 SCALE
INFO : RF 1992 SC1555 (2,5)
Delhi Rent Control Act, 1958.' Section
21-Recovery of possession by landlord from tenant--Whether legal represen- tatives
of landlord can initiate and continue proceedings for recovery.
petitioner-tenant was let out the demised premises by the landlord for a period
of three years, with permission of Controller under section 21 of the Delhi
Rent Control Act, the landlord died before the expiry of period of tenan- cy.
After the expiry of the period, his legal representa- tives made an application
for recovery of possession. This application was resisted by the tenant on the
ground that proceedings for recovery of possession under section 21 could not
be initiated and continued by legal representa- tives of the landlord who had
failed before the High Court, the petitioner has filed petition for special
leave. It was contended on his behalf that 'landlord' in second part of section
21, enti- tling him to claim vacant possession, should be confined to the
person who had obtained permission on the premise that he "does not
require the whole or any part of the premises for a particular period."
Dismissing the special leave petition, this Court,
(1) Section 21 is a self contained code. The purpose and objective of its
enactment as provision of short duration tenancy or periodical tenancy in Rent
Control Act of Delhi is unique amongst such legislations. What was unique of it
was not short duration tenancy but a fresh look on eviction. [27G; 28G] Shiv Chand
Kapoor v. Amar Bose,  1 SCC 234, referred to.
Since section 21 is an exception to section 14 and it mandates restoration of
possession, "notwithstanding any other law" it has to be construed
strictly and against any attempt to frustrate it. [28G] 26
Recovery of possession under section 21 is not hedged, by any inquiry or
opportunity, if permission is not challenged on any of the exceptions which
have been carved out by courts, obviously to uphold fairness and honesty the
core of our jurisprudence. Right to get vacant possession is thus absolute.
[29D] S.B. Noronah v. Prem Kumari Khanna,  1 SCC 52; V.S. Rahe v. Smt. Rem
Chamben,  1 SCC 612; Shiv Chand Kapoor v. Amar Bose,  1 SCC 234,
The expression "for the time being" in section 2(e) makes it clear
that landlord has to be understood in presen- ti. That is anyone entitled to
receive rent is the landlord.
does not visualise, past or future landlord. Therefore, the word
"landlord" on plain reading of Section 21 does not warrant
construction of the word in any other manner. [29G]
Section 21 is in two parts: one creation of short term tenancy and other its
execution after expiry of time. Both stand on their own and operate inde- pendently.
Non-requirement of premises for time being fur- nishes basis for entering into
agreement for periodical tenancy. Truth of it or its genuineness are relevant consid-
erations for granting permission. And the permission granted continues
unabated, unaffected irrespective of variation in requirement. [30D-E]
Vacation is not linked with landlord but with time.
of it obliges tenant to vacate. If he does not then whosoever is the landlord
at the time of afflux of tenancy may approach Controller for putting him in
vacant posses- sion. Death of landlord does not either shorten or enlarge
period nor the consequences envisaged are altered or affect- ed. [30F]
The doctrine of actio personalies moritur cum per- sonna does not apply to Rent
Control Acts. Its applicability was generally confined to actions for damages
for defama- tion, seduction, inducing a spouse to remain apart from the other
and adultery. [31D-C] Supreme Bank v.P.A. Tindulcar, AIR 1973 SC 1104; Shanti Lal
Thakur Das & Ors. v. Chaman Lal Magan Lal Lala,  1 S.C.R. 313: Phool Rani
v. Naubat Rai,  3 S.C.R. 769, referred to.
action for eviction abates only if the cause of action does 27 not survive. The
cause of action for granting permission was the nonrequirement by the landlord
of the premises for the time mentioned in the agreement whereas cause of action
for eviction is non-vacation by the tenant after the expiry of period.
Therefore, it is immaterial who is the landlord at the time when the action for
vacation arose. [31F-G]
Permission in the instant case was granted on state- ment of parties in regard
to their necessity or non-require- ment of the premises. Such necessity to let
out or non- requirement by the landlord could not be brought into those
exceptions which invalidated permission. Therefore, death of the landlord was
immaterial as even the reason for letting out did not die with death of
APPELLATE JURISDICTION: Special Leave Petition (Civil) No. 7914 of 1989.
the Judgment and Order dated 26.5.1989 of Delhi High Court in S.A.O. No. 296 of
and S.K. Gupta for the petitioner.
Y.S. Chitale, Ramji Srinivasan, P.K. Jain and Ra- vinder Nath for the
Judgment of the Court was delivered by R.M. SAHAI, J. Tenant inducted in 1979,
for three years, 2by the landlord under a written agreement, in C-4/33, Saf- darjang
Development Area, New Delhi, with permission of Controller under Section 21 of
Delhi Rent Control Act (for brevity the 'Act') seeks leave of this Court on
limited question of law if proceedings for recovery of possession under Section
21 of the Act could be initiated and continued by legal representatives of the
landlord who had obtained permission but who died before expiry of period of tenancy.
of it shall depend, primarily, on construction of word 'landlord' used in
Section 21, a provision held to be self contained code in Shiv Chand Kapoor v. Amar
Bose,  1 SCC 234 and also the purpose and objective of its enactment as
provision of short duration tenancy or periodi- cal tenancy in Rent Control Act
of Delhi right from 1952, is unique amongst such legislations and is probably
non exist- ent in any other State. It reads as under:
"Recovery of possession in case of tenancies for limited period:
Where a landlord does not require the whole or any part of any premises for a
particular period, and the landlord, after obtaining the permission of the
Controller in the prescribed manner, lets the whole of the premises or part
thereof as a residence for such period as may be agreed to in writing between
the landlord and the tenant and the tenant does not, on the expiry of the said
period, vacate such premises, then, notwithstanding anything contained in
Section 14 or in any other law, the Controller may, or an application made to
him in this behalf by the landlord within such time as may be prescribed, place
the landlord in vacant possession of the premises or part thereof by evict- ing
the tenant and every other person who may be in occupa- tion of such premises.
while making an order under sub-section (1), the Con- troller may award to the
landlord such damages for the use or occupation of the premises at such rates
as he considers proper in the circumstances of the case for the period from the
date of such order till the date of actual vacation by the tenant." What
it, undoubtedly, projects is the legislative aware- ness of acute crisis of
houses in the State. To resolve the paucity of accommodation, on one hand, due
to enormous influx of office personnel and business class as a result of rapid
growth of social, economic and political activity and apprehension of house
owners, on other, bulk of whom hail from middle class or service class, of
loosing their houses if not for good then for substantial period due to
develop- ment of strange phenomenon in big cities that allotted or rented
houses are more economical than, even, own the legis- lature which is the
best-judge of need of its people carved out an exception to usual rent control
provisions of pro- tecting tenants from eviction What was unique of it was not
short duration tenancy but a fresh look on eviction. Vacant possession was
ensured, statutorily, without any notice, or termination of tenancy or the
hazard of establishing bona fide need and comparative hardship etc. Since sec.
21 is an exception to Section 14 and it mandates restoration of possession,
"notwithstanding any other law" it has to be construed strictly and
against any attempt to frustrate it.
of it can be appreciated better if its language, is compared 29 with other
provisions of recovery of possession even though those provisions, namely, secs.
14A, 14B, 14C and 14D, were introduced later. They also provide speedy remedy
to recover possession. But the landlord cannot succeed unless he is able to
prove circumstances mentioned in it. More than this the tenant has been given
right to contest under Section 25B. Import of Section 21 on the other hand is
altogether different. It enjoins Controller to place landlord in vacant
possession after expiry of time without any right to tenant to contest it
except to the limited extent that permission was vitiated by fraud as held in
S.B. Noronah v. Prem Kumari Khanna,  1 SCC 52 or misuse of the provision
by land- lord taking advantage of helpless situation of the tenant as held in
V.S. Rahe v. Smt. Rem Chambeh,  1 SCC 612; or the permission really did
not create genuine tenancy as held in Shiv Chand Kapoor v. Amar Bose, supra.
Recovery of pos- session under Section 21 is not hedged, by any inquiry or
opportunity, if permission is not challenged on any of those exceptions which
have been carved out by courts, obviously, to uphold fairness and honesty the
core of our jurispru- dence. Right to get vacant possession is, thus absolute.
and objective of the Section having been ascer- tained, it may now be examined
if the word "landlord" used in the second part of the Section which
empowers landlord to make an application for recovery of possession is to be
understood as the same landlord who made the application or his legal
representatives as well. In other words, is there any justification for
construing the word "landlord" in a narrow sense so as to restrict
it, only, to the person who made the application and obtained permission.
"Landlord" has been defined in Section 2(e) as under:
'landlord' means a person who, for the time being is receiving, or is entitled
to receive, the rent of any prem- ises, whether on his own account or on account
of or on behalf of, or for the benefit of, any other person or who would so
receive the rent or be entitled to receive the rent, if the premises were let
to a tenant." Expression, "for the time being" makes it clear,
that land- lord has to be understood in praesentii. That is anyone entitled to
receive rent is the landlord. It does not visua- lise, past or future landlord.
Therefore, the word "land- lord". on plain reading of Section 21 does
not warrant construction of the word in any other manner. Basis for submission,
however, that landlord in second part of Section 21 entitling him to 30 claim
vacant possession should be confined to the person who obtained permission was
rounded on use of expression, "who does not require the whole or any part
of the premises for a particular period." Attempt was made to personalise
eviction proceedings by linking it with the person, due to whose
non-requirement the permission was granted resulting in automatic exclusion of
legal representatives. To put it interpretationally the word
"landlord", in second part was urged to be understood in a manner
different than it is defined in Section 2(e). Can it be said that context or
setting of Section 21 is such that the word "landlord" in second part
of it should be understood in a different sense than that in definition clause?
Not on prima facie reading of it which has already been adverted to. Neither on
close analysis. What is visualised is occasion for short duration tenancy due
to non-requirement of whole or part of premises by landlord for time being;
method of its creation by writ- ten agreement entered with tenant, statutory
status to it by permission obtained from Controller and execution by resto-
ration of vacant possession if the tenant does not vacate after expiry of
period. All condensed in one. Construction- ally it is in two parts one
creation of short term tenancy and other its execution after expiry of time.
Both stand on their own and operate independently. Non-requirement of premises
for time being furnishes basis for entering into agreement for periodical
tenancy. Truth of it on its genu- ineness are relevant considerations for
exhausts thereafter except to the limited extent pointed out in decisions
referred earlier. And the permis- sion granted continues unabated, unaffected
irrespective of variation in requirement. Necessity of landlord, again, does
not entitle him to seek its revocation. Even his death cannot shorten the
period. Similarly once period expires the agreement, the permission all cease
to operate by operation of law. Nothing further is required. Vacation is not
linked with landlord but with time. Expiry of it obliges tenant to vacate. If
he does not then the landlord may approach Con- troller for putting him in
vacant possession. Which land- lord? Obviously whosoever is the landlord at the
time of afflux of tenancy. Death of landlord does not either shorten or enlarge
period nor the consequences envisaged are altered or affected.
expression notwithstanding any other law render it obligatory on tenant to
vacate without questioning au- thority of landlord. Any other construction, may,
as rightly observed by the High Court lead to disastrous consequences.
on principles of civil law the provision for recovery of possession being in
nature of execution it could not be successfully resisted on the death of
landlord due to whose non-requirement the permission was granted. Such narrow
and 31 unreaIistic construction of the word 'landlord' shall frus- trate entire
purpose of Section 21.
of actio personalies mortiur cum personna cannot apply, either, on principle or
on facts. In Supreme Bank v.P.A. Tendulkar, AIR 1973 SC 1104 this Court while dis-
cussing applicability of the maxim held "whatever view one may take of the
justice of the principle it was clear that it would not be applicable to
actions based on contract or where tort feasers' Estate had benefitted from a
applicability was generally confined to actions for damages for defamation, seduction
inducing a spouse to remain apart from the other and adultery." In Phool Rani
v. Naubat Rai,  3 SCR 769; a decision which was relied by petitioner in
support of submission that an application filed for eviction of a tenant on
bona fide need lapses on the death of landlord and it could not be continued by
his legal representatives overruled in Shanti Lal Thakur Das and Ors. v. Chaman
Lal Maganlal Telwala,  1 SCR 313 it was observed that doctrine of actio personalis
moritur cum personna, did not apply to Rent Control Acts.
otherwise an action for eviction abates only if the cause of action does not
survive. What is the cause of action for an application for vacant possession
in Section 21 death of landlord or expiry of time for which tenancy was created.
Obviously the latter, the failure' of tenant to honour his commitment to vacate
the premises after expiry of time for which he was inducted with permission of
Control- ler. The death of the person who obtained the permission has nothing
to do with it. Permission was obtained because the landlord did not require the
premises on the date when it was let out to tenant. That does not continue on
the date when the tenant does not vacate the premises. The necessity of not
requiring the premises, for some time, or for the duration the tenant was
inducted was confined to the date when the permission was granted. It could not
be taken further to the time when the question of vacation arose. The cause of
action for granting permission was the non-require- ment by the landlord of the
premises for the time mentioned in the agreement whereas cause of action for
eviction is non-vacation by the tenant after the expiry of period.
it is immaterial who is the landlord at the time when the action for vacation
on facts permission was applied for by the landlord as, premises was surplus to
his need for a limited period of 3 years due to the reason that his son had
gone abroad and he was expected to return 32 after three years. Permission was
granted for this reason on statement of parties. Such necessity to let out or
non- requirement by the landlord could not be brought into those exceptions
which invalidate permission. Therefore death of the landlord was immaterial as
even the reason for letting out did not die with death of landlord.
result this petition for special leave fails and is dismissed. In the
circumstances of the case the tenant is directed to suffer costs which we
quantify at Rs.5,000.