The legal heirs of a deceased statutory tenant of commercial premises have no right to remain in possession of the premises after his death, and the Rent Controller has jurisdiction to evict them only if any ground which could be proved against the deceased statutory tenant, could be proved against his successors.

( 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