K G MALHOTRA Vs. VIJAY MALHOTRA

JUDGEMENT

(1.) On facts stated below, two questions arise for decision, namely :-

(2.) The landlord respondent Vijay Kumar field a suit against his tenant Kidar Nath Malhotra for arrears of rent and eviction on February 18, 1955 under the Delhi and Ajmer Rent Control Act, 1952 (hereafter called the 1952 Act). But the tenant died even before he was served wit htbe summons of the suit. The landlord alleged that he had already terminated the contractual tenancy of Kidar Nath who had, therefore, become only a statutory tenant and as such, the legal representatives of the tenant did not inherit either the tenancy or the statutory protection which was personal to the deceased tenant. He nevertheless applied that the legal representatives be brought on record. Accordingly, the appellant Krishan Gopal, the son of the deceased tenant, and two others were brought on record as legal representatives. Krishan Gopal contested the suit on the ground that the tenancy of his father Kidar Nath had not been validly terminated and alternatively that he was himself the tenant of the respondent landlord. The trial Court dismissed the suit for eviction and passed the decree only for arrears of rent. The first appeal by the landlord was allowed by the District Judge who held that the tenancy of Kidar Nath had been validity terminated and that Krishan Gopal was not a tenant in his own right. He passed a decree for eviction as also for damages for use and occupation against the legal representatives. A revision against the order of the District Judge was heard by Sachar, J., of this Court. Before the learned Judge it was urged for Krishan Gopal that if the late Kidar Nath Malhotra was only a statutory tenant, the suit could not have proceeded against his legal representatives. Sachar, J., held firstly that this plea could not be raised in the revision for the first time and secondly that it had no force, and that the legal representatives could not resist the suit for possession in as much as the tenancy of Kidar Nath had been validly terminated. When the decree was sought to be executed by the landlord, Krishna Gopal raised an objection that the decree was void as bieng without jurisdiction inasmuch as no decree could have been passed under the 1952 Act against the legal representatives of a statutory tenant. His objection was dismissed by the executing Court on January 16, 1971. The first appeal by him was also dismissed on March 23, 1971. Hence Krishan Gopal has purported to file this second appeal under section 100 read with section 47 Civil Procedure Code. No objection is taken to the maintainability of this appeal on the ground that section 34(2) of the 1952 Act expressly stated that no second appeal shall lie against the order passed under the said Act. Even if such an appeal did not lie, the memorandum of appeal may be considered as one for revision which lay under section 35 to the High Court against any decision made in any case under the Act. As the questions of law involved are very important, they have been referred to this Full Bench and are considered by us as below.

(3.) QUESTION NO. 1: Though the eviction was claimed by the landlord under the 1952 Act, most of the cases are, since the repeal of the said Act. being heard under the Delhi Rent Control Act, 1958 (hereafter called the 1958 Act). We have thought it useful, therefore, to consider these questions in relation to the provisions of both these Acts.