GIRDHARI LAL Vs. ABDUL JALIL

JUDGEMENT

(1.) The facts of this second appeal and the cross-objection (C. M. P. 1497/78) are that Shri Abdul Jalil owns the house in dispute in Nai Sarak, Delhi. Girdhari Lal was a tenant in the first and second floors of the said house since 1954 but his tenancy was terminated in March 1973. and he was sought to be ejected on three grounds out of which only one that is of sub-letting had eventually survived. It was alleged that Girdhari Lal sublet the premises to one Hari Singh in the first floor and Kunj Behari Lal in the second floor. As regards Hari Singh, the learned Addl. Rent Controller held that he was not a sub-tenant but was only living with the tenant as a friend. And since Kunj Behari Lal stated that he had left the premises but joined again a sub-tenant of Girdhari Lal in 1953, it was held that he became a sub-tenant after June 9, 1952. This subletting being without any written permission of the landlord, an order for eviction was passed in favour of the landlord on August 28, 1975. The Rent Control Tribunal dismissed the appeal against it on April 4, 1978. Hence, this second appeal. A cross-objection was field by the respondent against the findings respecting the sub-tenancy qua Hari Singh.

(2.) During this appeal, Girdhari Lal, who was a statutory tenant, died and his legal heirs were allowed to be brought on record on February 27, 1979, in spite of an objection raised by the respondent landlord that the appeal stood abated because the premises being commerial, no right to occupy them survived to the legal representatives in view of the Full Bench decision in Haji Mohammad Din and another v. Narain Das, A.1.R.1979 Del. 186. But it was urged on behalf of the repondent that though the appeal could not abate because the legal respresentatives were directed to be have been substituted, yet appeal shall have to be dismissed because the legal heirs have no right to remain in the premises and are bound to comply with the decree and surrender possession. Support was sought to be drawn form J.C. Chatterjee and others v. Sri Kishan Tandon another, A.I.R. 1972 S.C 2526, wherein on similar facts, the Supreme Court had maintained the decree of eviction though the statutory tenant had during the proceeding died. The learned counsel for the appellant contended that the order of February 27, 1979 which purports to say that once the legal representatives are on record, they have a right to raise the same defence which the deceased statutory tenant could and did raise, operated as res judicata. He points out that J.C. Chatterjee (super) was considered by a Bench of 5 judges of this court in Kedar Nath Smt. Mohani Davi A.l.R. 1974 Del 171, 1973 Raj. LR. 701 and yet it held that in case of an evicion application under the Delhi Rent control Act, 1958 (hereinafter the Act), eviction of the legal representatives of a statutory tenant dying meanwhile cannot be directed by the Rent Controller unless any ground which could be proved against the deceased statutory tenant, could be proved against his successors. In any other case, he had no jurisdicition, and the appellant could be evicted only by a separate suit for possession and not in these proceedings.

(3.) 1 have carefully examined Kedar Nath (supra) in Smt. Gian Devi v Jiwan Kumar S.A.O. No. 8 of 1979, decided today. (1980 Raj LR. 28) I do not find that it supports the contention of the appellant in any manner. Except in the cases now provided for in the recent amendments in Order 22 of the Code of Civil Proce dure, 1908, substitution in place of a party is a legal requirement because a dead person can neither proseed nor can be proceeded against and the law does not countenance vacuum and resultant frustration. Substitution of a legal representatives in place of a dead person is something which should not be confused with availability or otherwise of any pleas to him. Since it is the appellant who has died, it is Rule 3 of Order 22 that shall apply and it lays down that if the right to appeal survives, then the court shall cause the legal representatives of the deceased appellant to be made a party and shall proceed with the appeal, vide Order 22, Rule 11 Civil Procedure Code . There is no question of resjudicata here. Nothing which now falls for determination, that is their right to remain in possession, was finally heard and decided on February 27, 1979. The legal representatives simply save the appeal from abatement and they can certainly proceed with the appeal but that does not debar the respondent to say and this court to decide whether any or none of the pleas can be allowed to be raised by the appellant or not. No one is dislodging them from their substitutions but they cannot be heard to say that though the defences which were available to their predecessor were personal to him and were not available to them and consequently, they have no doubt no right to remain in possession, yet they cannot be dispossessed otherwise than by suit for possession because the Rent Controller has no jurisdiction. Such a stand is not permisible because they are not setting up any right independent of the rights which the deceased did have. That apart, Kedar Nath, (supra) has also made it clear that in a situation like this, the jurisdiction of the Controller remains unaffected. To refuse relief where the plaintiff disclose no cause of action or the defendant has a valid defence to make, is not the same thing as to say that the court does not possess or ceases to possess the power to allow or refuse such relief.