DURGA DEVI Vs. BRIJMOHAN LAL

JUDGEMENT

(1.) The word 'tenant' has been defined in clause (1) of section 2 of the Act as "any person by whom or on whose account or behalf the rent of any premises is or but for a special contract would be, payable and includes a subtenant and also any person continuing in possession after the termination of his tenancy but shall not include any person against whom an order or decree for eviction has been made". The tenant as defined above is protected from eviction by section 14 of the Act. The contractual tenancy of a tenant is determined in any of the modes prescribed under section 111 of the Transfer of Property Act and one of them is a notice to quit in accordance with section 106 of the Transfer of Property Act. In the instant case. notice to quit had been served on the original tenant, Babu Ram, on 29th July, 1954 requiring him to quit the premises by 31st August, 1954. The contractual tenancy of Babu Ram had, therefore, come to an end. Thereafter he only enjoyed the protection of the statute aginst his eviction. As held by the Supreme Court in Anand Nivas PrivateLtd V. Anand Kalyanii's Pedhi. AIR 1965 SC 414, the protection of the statute against eviction was entirely personal to the tenant and was not capable of being transferred or assigned or inherited. Consequently, the legal representatives of Babu Ram were not tenants and did not enjoy the protection of the law nor did they have any legal right to remain in possession of the premises. The suit of the landlord for recovery of possession of the property from the legal representatives will therefore He in a civil court and such a suit is based on the title of the landlord to recover the possession and not on the existence of any relationship on landlord and tenant between the plaintiff and the defendants. Such a suit is not hit by section 50 of the Rent Act, but is rather saved by the exception contained in sub-section (4).

(2.) Reliance has been placed by Mr. Raizada on a Full Bench decision of five judges of this court in Kedar Nath V. Smt. Mohini Devi, AIR 1974 Delhi 171, =1973. Rajdhani L.R, 701 but there is nothing in the said judgement to assist the appellants In that case the court was dealing with a situation whereafter terminating the contractual tenancy by notice to quit, the landlord had instituted a petition for eviction before the Controller against the statutory tenant himself on the grounds mentioned in clauses (a) to (1) to the proviso to sub-section (1) of section 14 of the Act. The petition as framed was perfectly valid and maintainable and did not suffer from any infirmity with regard to the jurisdiction of the Controller to try the same. During the pendency of the petition the statutory tenant died and his legal representatives were brought on record. The question before the Full Bench was whether the said petition would then abate or could be continued against the legal representatives of the deceased and the Full Bench answered the question that the jurisdiction of the controller to continue the petition against the legal representative of a tenant who was a party to the petition but had died during its pendency continued unabated and the legal representatives were bound to deliver possession of the property to the landlord, if he succeeded in establishing the grounds of eviction which he had claimed. The Full Bench did not consider the case where the statutory tenant had died before the institution of proceedings for eviction. It also did not repel the right of the landlord to file a suit for recovery of possession against the legal representatives of the deceased tenant in civil court on the basis of his title. In fact, it observes in paragraph (30) of the report that the Controller can pass an order for eviction against the legal representatives only on the grounds mentioned in the statute, but in case the Controller "came to the finding that the landlord had not been able to establish any of the grounds...... then he would have no power to pass an order for recovery of possession for the reason that the conditions on which his power to order recovery of possession rested, did not exist, but the landlord may then file, it' so advised, a regular suit for possession in the civil court, which would be on a different cause of action". The aforesaid observations of the Full Bench provide a complete answer to the appellants herein. The respondent was entitled to institute a suit in a civil court for recovery of possession of the premises from the legal representatives of a deceased statutory tenant, if he was not basing his claim on any of the grounds specified in clauses (a) to (1) to the proviso to sub-section (1) of section i4 of the Rent Act of 1958. The case in hand relates to a suit for recovery of possession on the basis of title against the legal representatives of the deceased statutory tenant, who according to the well established principles of law did not have any legal right or title in the property. This contention of the learned counsel therefore, fails and is rejected. As such, the suit was. in my opinion, maintainable in civil court.

(3.) The second contention is again without any force. The petition for eviction had been dismissed by the Controller on the ground that the tenant had died and the petition had abated against the legal representatives. Rule 9 of Older 22 of the Code of Civil Procedure on which the learned counsel for the appellants relies only bars the institution of a fresh suit on the same cause of action. It is difficult to hold that the proceedings for eviction before a Rent Controller under the Rent Act, constitute a suit and that those proceedings will, apart from the provisions of section '0 of the 'Rent Act bar the institution of any suit in civil court. In fact in Om Prakash v. Dr. Rattan Singh , 1960 PLR 543, the Supreme Court observed that the finding of the Controller with regard to the existence of relationship of landlord and tenant though final so far as the Controller is concerned, was only tentative and indeed subject to review by civil court. This authority would show that the jurisdiction of the civil court is different and is not barred by anything that the Controller does or omits to do, apart from the statutory provisions taking away the jurisdiction of the civil court like section 50 of the Rent Act or any other provision of law which expressly or by necessary intendment bars its jurisdiction. I am, however, assuming for the sake of arguments that Order 22 Rule 9 applies to the suit Still the contention of the counsel has absolutely no force. The cause of action before the Rent Controller consisted of the grounds of eviction specified in the Rent Act. The suit filed in the civil court is based on a different cause of action : it is known as a title suit and the landlord has instituted it on the allegations that he was the owner of the property and the appellants had no right, title or interest to remain in the property and so they must deliver its possession to the respondent. This is entirely a different cause of action. Considered from any point of view, I find that there is no provision or principle of law which barred the instant suit in the civil court. Moreover, it should not be forgotten that this suit had been instituted on 7th November, 1%6 before the Controller passed an order on 4th March, 1967 dismissing the petition as having abated and so there ?s nothing in the order of the Controller or provisions of law to unsuit the already instituted suit of the respondent.