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High Court Of Delhi
KRISHAN GOPAL MALHOTRA - Appellant
Versus
VIJAY KUMAR - Respondent
. 2 of 1971
Decided On : 04/05/1973
RENT CONTROL - EVICTION - DEATH OF TENANT - JURISDICTION - 1952 ACT AND 1958 ACT - LEGAL REPRESENTATIVES.
Fact of the Case:
Tenant Kidar Nath Malhotra died during the pendency of a suit for arrears of rent and eviction filed by the landlord Vijay Kumar under the Delhi and Ajmer Rent Control Act, 1952 (1952 Act). The landlord alleged that the contractual tenancy of Kidar Nath had been terminated, and therefore, the legal representatives of the tenant did not inherit the tenancy or the statutory protection. The trial court dismissed the suit for eviction and passed a decree only for arrears of rent. On appeal, the District Judge allowed the landlord's appeal and passed a decree for eviction as well as damages for use and occupation against the legal representatives. The legal representatives challenged the decree in revision, arguing that the suit could not have proceeded against them under the 1952 Act. The executing court dismissed their objection, and their appeal against this order was also dismissed. The legal representatives filed a second appeal under section 100 read with section 47 of the Civil Procedure Code.
Finding of the Court:
1. Under the 1952 Act, a civil court has jurisdiction to try a suit for eviction filed by a landlord against a tenant under section 13. However, the suit must be based on one or more of the grounds specified in the proviso to section 13(1). A suit filed under section 13 cannot be based on title or involve a question of title. 2. On the death of a tenant, the right to sue for possession survives to the landlord under Order XXII rule 1 of the Civil Procedure Code. However, the jurisdiction of the court to entertain the suit is determined on the allegations in the plaint or in the application for eviction. If the landlord alleges that the contractual tenancy has been terminated and the tenant died as a statutory tenant, the suit would be based on title and not on the landlord-tenant relationship. In such a case, the legal representatives of the deceased tenant would be brought on record not as tenants but as the ordinary heirs at law. 3. Under the 1958 Act, an application for eviction can be filed by a landlord against a tenant under section 14. The Controller appointed under the Act has the powers of a civil court under the Civil Procedure Code. However, the Controller's jurisdiction is limited to an application for eviction filed by the landlord against a tenant on one or more of the grounds mentioned in the proviso to section 14(1). The Controller cannot pass an order for eviction against the legal representatives of a deceased statutory tenant. 4. If the contractual tenancy of the deceased tenant had not been terminated, the tenancy would be inherited by the legal representatives, and they would be entitled to defend the application for eviction as tenants under the 1958 Act. 5. The death of a statutory tenant during the pendency of an application for eviction filed by the landlord under section 14 of the 1958 Act terminates the proceedings before the Controller. The landlord's right to sue survives against the legal representatives of the deceased tenant, but the right to pursue the application under section 14 does not survive. 6. If an order for eviction is passed against the legal representatives of a deceased statutory tenant under the 1958 Act, it would be without jurisdiction and can be challenged in the executing court.
Issues: 1. Whether a landlord is entitled to a decree or order for the possession of the premises against the legal representatives of a deceased tenant in the same proceeding under the 1952 Act and the 1958 Act? 2. In what circumstances can such a decree or order be challenged as being without jurisdiction by the said legal representatives in the executing court?
Ratio Decidendi: 1. Under the 1952 Act, a landlord is entitled to a decree or order for the possession of the premises against the legal representatives of a deceased tenant in the same proceeding if the contractual tenancy of the tenant had been terminated and the legal representatives did not inherit the tenancy or the statutory protection. However, if the contractual tenancy had not been terminated, the legal representatives would be entitled to defend the eviction suit as tenants. 2. Under the 1958 Act, a landlord is not entitled to a decree or order for the possession of the premises against the legal representatives of a deceased statutory tenant. The Controller has no jurisdiction to pass an order for eviction against the legal representatives of a deceased statutory tenant. If such an order is passed, it would be without jurisdiction and can be challenged in the executing court.
Final Decision: The appeal was dismissed with costs.
( 1 ) ON facts stated below, two questions arise for decision, namely :-
(1) If a tenant (whose contractual tenancy has already been terminated) dies during the pendency of a suit or a proceeding for his eviction filed by the landlord, is the landlord entitled to a decree or order for the possession of the premises against the legal representatives of the deceased tenant in the same proceeding? and (2) In what circumstances can such a decree or order be challenged as being without jurisdiction by the said legal representatives in the executing court?
( 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 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.
( 4 ) A lease is a transfer of "right
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