NATHU KHAN Vs. MOHAMMAD ISMAIL

JUDGEMENT

(1.) One Rahim Khan was a tenant under the predecessor-iri-title of the respondent Mohamad Ismail from before 1-12-1962 when section 106 of the Transfer of Property Act first beacme applicable to Delhi. The respondent landlord sent a notice dated 8-1-1964 to Rahim Khan alleging that the latter had not paid arrears of rent in respect of the premises and staling that if the arears of rent are not paid within two months of the service of the notice, then proceedings for recovery of rent and for eviction would be taken against him. This notice was a composite notice under clause (a) of the proviso to section 14(1) of the Delhi Rent Control Act, 1958 (hereinafter called the Act) and also a reasonable notice according to the principle underlying section 106 of the Transfer of Property Act. As the notice was not complied with, the landord filed a petition for eviction against Rahim Khan before the Rent Controller under the provisions of the Act. The landlord proved the service of this notice on Rahim Khan . In the application for eviction, the landlord had alleged the service of the said notice on Rahim Khan but Rahim Khan had generally denied the allegations regarding the service of notice. After the service of notice was proved by the landlord, the contractual tenancy of Rahim Khan was terminated and he became a statutory tenant. Rahim Khan died during the pendency of the eviction proceedings before the Controller as a statutory tenant. The landlord made an application on the principle underlying Order XXII rule 4 Civil Procedure Code stating that though Rahim Khan died as a statutory tenant and his heirs and legal representatives did not succeed to any tenancy rights and did not, therefore, become tenants under the landlord, they should nevertheless be brought on record in order to avoid any technical or legal objection. The legal representatives stated that the application was not maintainable but had no objection to bs brought on record if the Court held that it was maintainable. The Controller simply ordered them to be brought on record and proceeded with the eviction proceeding. As the rent was not paid in accordance with the order passed by the Controller under section 15(1) of the Act, the landlord applied to the Controller that the defence originally contained in the written statement filed by Rahim Khan and continued by his legal representatives should bs struck out under section 15(7) of the Act. The Controller refused to strike out the defence. The landlord, therefore, went in appeal to the Rent Control Tribunal which allowed the appeal and ordered the defence to be struck out. The eviction proceeding came back to the Controller who passed an order for eviction in favour of the landlord and against the legal representatives of Rahim Khan under clause of the proviso to section 14(1) the Act and also on other grounds which are not material for consideration.

(2.) The legal representatives of Rahim Khan filed an appeal against the order for eviction to the Rent Control Tribunal which dismissed the appeal solely on ths ground that the order for eviction was valid inasmuch as the legal representatives had failed to pay rent in accordance with the order passed under section 15(1) though as to the other grounds for eviction it agreed with the appellants. The second appeal against the order of the Rent Control Tribunal filed by the legal representatives of Rahim Khan was dismissed in limine.

(3.) The landlord filed a proceeding for execution of the order of eviction before the Controller. The legal representatives of Rahim Khan objected to the execution on two alternate grounds. Firstly, the legal representatives were brought on record on the death of Rahim Khan in the eviction proceedmgs and the order for evietion was passed against them. According to the decision of a full bench of five judges of this court in Bardu Ram v. Ram Chander, 1970 0 AllIRCJ 1078,(1) the permission of the Competent Authority undersection 19 of the Slum Areas (Improvement and Clearance) Act, 1956 is necessary even though the order for eviction is passed against the tenant and at the time of the execution of the order for eviction the tenant had ceased to e a tenant. For, the word "tenant" in section 19 was held to include a former tenant or an ex-tenant. The landlord was therefore bound to obtain the permission of the Competent Authority under section 19 of the said Act before he could execute the order for eviction. Secondly and alternatively, if the legal representatives are held not to have inherited either the tenancy or the statutory protection which was available to the deceased Rahim Khan, then the Rent Controller had no jurisdiction to join them as legal representatives and to proceed against them. For, the jurisdiction of th3 Controller was restricted to a proceeding between landlord and tenant. "The order for eviction passed by the Controller was, therefore, without jurisdiction and this lack of jurisdiction was apparent on the face of the record which could be seen even by the executing court. The executing court should,therefore, refuse to execute the order for eviction on this ground.