MOHAMMAD ANIS Vs. SAMEER AHMED

JUDGEMENT

(1.) The Landlord has filed this petition under Article 227 of the Constitution against the dismissal of his eviction petition by the Additional Rent Controller (ARC) on the grounds that he had failed to implead the Legal Representatives of deceased Respondent No-3/tenant. The Landlord had also not succeeded in his challenge to the order before the Rent Control Tribunal (RCT). The latter had favoured the view that even though 'Leave to contest' had not been applied for by Respondent No.3 it did not automatically follow that eviction orders should be deemed to have been passed. The Tribunal had further held that the law enjoined upon the Petitioner to move an application under Order XXII Rule 4 of the Code of Civil Procedure for impleading the Legal Representatives of the deceased party if the right to sue had survived. It held that since possession had to be taken from some person it was imperative that his Legal Representatives should have been impleaded.

(2.) The facts of the case are that an eviction petition under Section 14(1)(e) read with Section 25B of the Delhi Rent Control Act (hereinafter.referred to as DRC Act) was filed on 23.5.1994 against the legal heirs of late Mohammad Ahmed, the erstwhile tenant of the Petitioner. One of them was late Noor Ahmed, who was arrayed as Respondent No.3 in the Eviction Petition. Respondents 3 and 4 were served but failed to file any application for grant of leave to contest. However, on 2.3.1995, on the concession of the Counsel for the Petitioner, leave to contest was granted to all the remaining Respondents. No order was passed on this date of hearing in respect of Respondents 3 and 4, beyond recording the factum of their having been served. On 5,4.1995 the same position prevailed. On 28.5.1995 these Respondents were set ex parte. The eviction petition was contested by the other Respondents. In this interregnum, an application under Order IX Rule 7 of the Civil Procedure Code. was filed on 13.11.1995 but was rejected on 12.7.1996 as not maintainable, inter alia, because no application for grant of leave to contest the eviction petition had been filed. Significantly, even at this juncture neither was a prayer for the passing of an eviction order qua this Respondent made, nor did the ARC consider it appropriate to do so. Respondent No.3 thereafter filed an application dated 8.8.1996, under Order XXXVIII Rule 4 of the Civil Procedure Code. read with Section 258(4) of the D.R.C. Act but before this could be decided by the ARC he died on 14.11.1996. Thereafter, since no one was present at the hearing scheduled for 5.8.1998, the opportunity to cross-examine the Petitioner went unavailed. The case was still adjourned for the recording of the Respondent's evidence, but none appeared. In the course of hearing final arguments on 4.12.1998, the ARC observed that - "On 2.3.1995 a decree was passed against Respondents 3 and 4. Respondent No.1,2 and 5 to 8 were continuing. Respondent No.3 has expired during the pendency of the proceedings. Counsel for the Petitioner has submitted that no substitution is required in view of the fact that a decree already stand passed against Respondent No.3 when he was alive and an Application under Order 9 Rule 7 of the Respondent No. 3 also stand dismissed, final arguments heard, to come up for orders on 5.12.1998." It needs underscoring that the argument was not based on sub-rule (4) of Rule 4 of Order XXII, even at this stage of the proceedings. On this date the ARC dismissed the eviction petition, holding that it had abated consequent on the non-impleadment of the legal representatives of the Respondent No.3. As already noticed he was in possession of the demised premises in his lifetime, and presumably his Legal Representatives are now in possession thereof. In the proceeding before this Court held on 19.3.2001 Learned Counsel for the Respondents including the newly added Respondents 3A to 3E (legal representatives of the deceased Respondent No.3) made a reasonable offer for .the remand of the case to the stage when the application under Order XXXVII Rule 4 had been filed, and also offered to waive objections to the delayed impleadment of Respondents 3A to 3E. This offer was declined by the Petitioner/landlord and hence final arguments were heard.

(3.) It would be of advantage to reproduce Rules 4 and 6 of Order XXII of the Civil Procedure Code. since the former has been relied upon by the Respondents and the latter by the Petitioner. The Appellants have quite apparently got lost in the labyrinth of Rule 4 and have not considered sub-rule (4) thereof to be of relevance.