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PETITIONER: PUKHRAJ JAIN

       Vs.

RESPONDENT: MRS. PADMA KASHYAP AND ANR.

DATE OF JUDGMENT20/03/1990

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) SHETTY, K.J. (J)

CITATION:  1990 AIR 1133            1990 SCR  (2)  25  1990 SCC  (2) 431        JT 1990 (1)   486  1990 SCALE  (1)531  CITATOR INFO :  RF         1992 SC1555  (2,5)

ACT:     Delhi  Rent Control Act, 1958.’ Section  21-Recovery  of possession by landlord from tenant--Whether legal  represen- tatives  of landlord can initiate and  continue  proceedings for recovery.

HEADNOTE:     The  petitioner-tenant was let out the demised  premises by the landlord for a period of three years, with permission of  Controller  under section 21 of the Delhi  Rent  Control Act, the landlord died before the expiry of period of tenan- cy.  After the expiry of the period, his  legal  representa- tives  made an application for recovery of possession.  This application  was resisted by the tenant on the  ground  that proceedings  for  recovery of possession  under  section  21 could  not be initiated and continued by  legal  representa- tives of the landlord who had obtained permission.     Having failed before the High Court, the petitioner  has filed  petition for special leave. It was contended  on  his behalf  that ’landlord’ in second part of section 21,  enti- tling him to claim vacant possession, should be confined  to the  person who had obtained permission on the premise  that he  "does not require the whole or any part of the  premises for a particular period." Dismissing the special leave petition, this Court,     HELD:  (1)  Section  21 is a self  contained  code.  The purpose and objective of its enactment as provision of short duration  tenancy or periodical tenancy in Rent Control  Act of  Delhi  is  unique amongst such  legislations.  What  was unique of it was not short duration tenancy but a fresh look on eviction. [27G; 28G] Shiv  Chand Kapoor v. Amar Bose, [1990] 1 SCC 234,  referred to.     (2)  Since section 21 is an exception to section 14  and it mandates restoration of possession, "notwithstanding  any other  law" it has to be construed strictly and against  any attempt to frustrate it. [28G] 26     (3)  Recovery  of  possession under section  21  is  not

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hedged, by any inquiry or opportunity, if permission is  not challenged  on any of the exceptions which have been  carved out by courts, obviously to uphold fairness and honesty  the core of our jurisprudence. Right to get vacant possession is thus absolute. [29D]     S.B.  Noronah  v. Prem Kumari Khanna, [1980] 1  SCC  52; V.S. Rahe v. Smt. Rem Chamben, [1984] 1 SCC 612; Shiv  Chand Kapoor v. Amar Bose, [1990] 1 SCC 234, referred to.     (4) The expression "for the time being" in section  2(e) makes it clear that landlord has to be understood in presen- ti. That is anyone entitled to receive rent is the landlord. It  does not visualise, past or future landlord.  Therefore, the word "landlord" on plain reading of Section 21 does  not warrant construction of the word in any other manner. [29G]     (5)  Constructionally, Section 21 is in two  parts:  one creation of short term tenancy and other its execution after expiry  of time. Both stand on their own and  operate  inde- pendently.  Non-requirement of premises for time being  fur- nishes  basis  for entering into  agreement  for  periodical tenancy. Truth of it or its genuineness are relevant consid- erations for granting permission. And the permission granted continues unabated, unaffected irrespective of variation  in requirement. [30D-E]     (6) Vacation is not linked with landlord but with  time. Expiry  of it obliges tenant to vacate. If he does not  then whosoever  is the landlord at the time of afflux of  tenancy may  approach Controller for putting him in  vacant  posses- sion.  Death of landlord does not either shorten or  enlarge period nor the consequences envisaged are altered or affect- ed. [30F]     (7)  The doctrine of actio personalies moritur cum  per- sonna does not apply to Rent Control Acts. Its applicability was  generally confined to actions for damages  for  defama- tion, seduction, inducing a spouse to remain apart from  the other and adultery. [31D-C]     Supreme Bank v.P.A. Tindulcar, AIR 1973 SC 1104;  Shanti Lal Thakur Das & Ors. v. Chaman Lal Magan Lal Lala, [1977] 1 S.C.R.  313: Phool Rani v. Naubat Rai, [1973] 3 S.C.R.  769, referred to. (8)  An  action  for eviction abates only if  the  cause  of action does 27 not survive. The cause of action for granting permission was the  nonrequirement by the landlord of the premises for  the time mentioned in the agreement whereas cause of action  for eviction  is non-vacation by the tenant after the expiry  of period.  Therefore, it is immaterial who is the landlord  at the time when the action for vacation arose. [31F-G]     (9) Permission in the instant case was granted on state- ment of parties in regard to their necessity or non-require- ment  of  the premises. Such necessity to let  out  or  non- requirement by the landlord could not be brought into  those exceptions which invalidated permission. Therefore, death of the  landlord was immaterial as even the reason for  letting out did not die with death of landlord. [32A-B]

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Special  Leave  Petition (Civil) No. 7914 of 1989.     From  the  Judgment and Order dated 26.5.1989  of  Delhi High Court in S.A.O. No. 296 of 1984. V.M. Tarkunde and S.K. Gupta for the petitioner.     Dr.  Y.S. Chitale, Ramji Srinivasan, P.K. Jain  and  Ra-

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vinder Nath for the respondents. The Judgment of the Court was delivered by     R.M. SAHAI, J. Tenant inducted in 1979, for three years, 2by the landlord under a written agreement, in C-4/33,  Saf- darjang  Development  Area, New Delhi,  with  permission  of Controller  under Section 21 of Delhi Rent Control Act  (for brevity  the  ’Act’) seeks leave of this  Court  on  limited question  of law if proceedings for recovery  of  possession under Section 21 of the Act could be initiated and continued by  legal representatives of the landlord who  had  obtained permission but who died before expiry of period of tenancy.     Answer of it shall depend, primarily, on construction of word  ’landlord’ used in Section 21, a provision held to  be self  contained  code  in Shiv Chand Kapoor  v.  Amar  Bose, [1990]  1 SCC 234 and also the purpose and objective of  its enactment as provision of short duration tenancy or periodi- cal tenancy in Rent Control Act of Delhi right from 1952, is unique amongst such legislations and is probably non  exist- ent in any other State. It reads as under: 28 21. "Recovery of possession in case of tenancies for limited period: (1) Where a landlord does not require the whole or any  part of  any premises for a particular period, and the  landlord, after  obtaining  the permission of the  Controller  in  the prescribed  manner, lets the whole of the premises  or  part thereof  as a residence for such period as may be agreed  to in  writing  between  the landlord and the  tenant  and  the tenant  does not, on the expiry of the said  period,  vacate such  premises, then, notwithstanding anything contained  in Section  14 or in any other law, the Controller may,  or  an application  made  to  him in this behalf  by  the  landlord within such time as may be prescribed, place the landlord in vacant possession of the premises or part thereof by  evict- ing the tenant and every other person who may be in  occupa- tion of such premises. (2)  while making an order under sub-section (1),  the  Con- troller  may award to the landlord such damages for the  use or occupation of the premises at such rates as he  considers proper in the circumstances of the case for the period  from the  date of such order till the date of actual vacation  by the tenant."     What it, undoubtedly, projects is the legislative aware- ness of acute crisis of houses in the State. To resolve  the paucity  of  accommodation,  on one hand,  due  to  enormous influx of office personnel and business class as a result of rapid growth of social, economic and political activity  and apprehension  of house owners, on other, bulk of  whom  hail from middle class or service class, of loosing their  houses if not for good then for substantial period due to  develop- ment  of strange phenomenon in big cities that  allotted  or rented houses are more economical than, even, own the legis- lature which is the best-judge of need of its people  carved out  an exception to usual rent control provisions  of  pro- tecting tenants from eviction What was unique of it was  not short duration tenancy but a fresh look on eviction.  Vacant possession was ensured, statutorily, without any notice,  or termination  of tenancy or the hazard of  establishing  bona fide need and comparative hardship etc. Since sec. 21 is  an exception  to  Section  14 and it  mandates  restoration  of possession,  "notwithstanding  any other law" it has  to  be construed strictly and against any attempt to frustrate  it. Intensity  of it can be appreciated better if its  language, is compared 29

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with other provisions of recovery of possession even  though those provisions, namely, secs. 14A, 14B, 14C and 14D,  were introduced later. They also provide speedy remedy to recover possession.  But  the landlord cannot succeed unless  he  is able to prove circumstances mentioned in it. More than  this the  tenant  has been given right to contest  under  Section 25B.  Import of Section 21 on the other hand  is  altogether different. It enjoins Controller to place landlord in vacant possession after expiry of time without any right to  tenant to  contest it except to the limited extent that  permission was vitiated by fraud as held in S.B. Noronah v. Prem Kumari Khanna, [1980] 1 SCC 52 or misuse of the provision by  land- lord taking advantage of helpless situation of the tenant as held in V.S. Rahe v. Smt. Rem Chambeh, [1984] 1 SCC 612;  or the permission really did not create genuine tenancy as held in  Shiv Chand Kapoor v. Amar Bose, supra. Recovery of  pos- session  under Section 21 is not hedged, by any  inquiry  or opportunity, if permission is not challenged on any of those exceptions which have been carved out by courts,  obviously, to  uphold  fairness and honesty the core of  our  jurispru- dence. Right to get vacant possession is, thus absolute.     Purpose and objective of the Section having been  ascer- tained,  it may now be examined if the word "landlord"  used in the second part of the Section which empowers landlord to make  an  application for recovery of possession  is  to  be understood as the same landlord who made the application  or his legal representatives as well. In other words, is  there any  justification for construing the word "landlord"  in  a narrow  sense so as to restrict it, only, to the person  who made the application and obtained permission. "Landlord" has been defined in Section 2(e) as under: "2(e). ’landlord’ means a person who, for the time being  is receiving, or is entitled to receive, the rent of any  prem- ises,  whether  on his own account or on account  of  or  on behalf  of, or for the benefit of, any other person  or  who would  so  receive the rent or be entitled  to  receive  the rent, if the premises were let to a tenant." Expression, "for the time being" makes it clear, that  land- lord  has  to be understood in praesentii.  That  is  anyone entitled to receive rent is the landlord. It does not visua- lise,  past or future landlord. Therefore, the  word  "land- lord".  on  plain  reading of Section 21  does  not  warrant construction  of  the word in any other  manner.  Basis  for submission, however, that landlord in second part of Section 21 entitling him to 30 claim vacant possession should be confined to the person who obtained  permission was rounded on use of expression,  "who does not require the whole or any part of the premises for a particular period." Attempt was made to personalise eviction proceedings  by  linking it with the person,  due  to  whose non-requirement  the  permission was  granted  resulting  in automatic  exclusion  of legal representatives.  To  put  it interpretationally  the word "landlord", in second part  was urged  to  be understood in a manner different  than  it  is defined  in  Section 2(e). Can it be said  that  context  or setting  of Section 21 is such that the word  "landlord"  in second part of it should be understood in a different  sense than  that in definition clause? Not on prima facie  reading of  it which has already been adverted to. Neither on  close analysis. What is visualised is occasion for short  duration tenancy due to non-requirement of whole or part of  premises by landlord for time being; method of its creation by  writ- ten agreement entered with tenant, statutory status to it by permission obtained from Controller and execution by  resto-

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ration  of vacant possession if the tenant does  not  vacate after expiry of period. All condensed in one.  Construction- ally  it is in two parts one creation of short term  tenancy and other its execution after expiry of time. Both stand  on their  own  and operate  independently.  Non-requirement  of premises  for time being furnishes basis for  entering  into agreement  for periodical tenancy. Truth of it on its  genu- ineness are relevant considerations for granting permission. But  it  exhausts thereafter except to  the  limited  extent pointed  out in decisions referred earlier. And the  permis- sion granted continues unabated, unaffected irrespective  of variation in requirement. Necessity of landlord, again, does not  entitle  him  to seek its revocation.  Even  his  death cannot shorten the period. Similarly once period expires the agreement, the permission all cease to operate by  operation of law. Nothing further is required. Vacation is not  linked with landlord but with time. Expiry of it obliges tenant  to vacate.  If he does not then the landlord may approach  Con- troller  for putting him in vacant possession.  Which  land- lord?  Obviously  whosoever is the landlord at the  time  of afflux of tenancy. Death of landlord does not either shorten or enlarge period nor the consequences envisaged are altered or affected.     Use  of expression notwithstanding any other law  render it  obligatory on tenant to vacate without  questioning  au- thority of landlord. Any other construction, may, as rightly observed by the High Court lead to disastrous  consequences. Even  on principles of civil law the provision for  recovery of  possession being in nature of execution it could not  be successfully resisted on the death of landlord due to  whose non-requirement the permission was granted. Such narrow and 31 unreaIistic construction of the word ’landlord’ shall  frus- trate entire purpose of Section 21.     Maxim  of actio personalies mortiur cum personna  cannot apply,  either,  on principle or on facts. In  Supreme  Bank v.P.A.  Tendulkar, AIR 1973 SC 1104  this Court  while  dis- cussing  applicability of the maxim held "whatever view  one may  take of the justice of the principle it was clear  that it  would not be applicable to actions based on contract  or where tort feasers’ Estate had benefitted from a wrong done. Its  applicability  was generally confined  to  actions  for damages  for  defamation,  seduction inducing  a  spouse  to remain apart from the other and adultery." In Phool Rani  v. Naubat Rai, [1973] 3 SCR 769; a decision which was relied by petitioner  in  support of submission  that  an  application filed  for eviction of a tenant on bona fide need lapses  on the  death of landlord and it could not be continued by  his legal representatives overruled in Shanti Lal Thakur Das and Ors. v. Chaman Lal Maganlal Telwala, [1977] 1 SCR 313 it was observed  that  doctrine  of actio  personalis  moritur  cum personna, did not apply to Rent Control Acts.     Even otherwise an action for eviction abates only if the cause  of  action  does not survive. What is  the  cause  of action  for an application for vacant possession in  Section 21 death of landlord or expiry of time for which tenancy was created.  Obviously  the latter, the failure’ of  tenant  to honour his commitment to vacate the premises after expiry of time  for which he was inducted with permission of  Control- ler. The death of the person who obtained the permission has nothing  to do with it. Permission was obtained because  the landlord  did not require the premises on the date  when  it was  let out to tenant. That does not continue on  the  date when the tenant does not vacate the premises. The  necessity of  not  requiring the premises, for some time, or  for  the

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duration  the tenant was inducted was confined to  the  date when  the  permission  was granted. It could  not  be  taken further to the time when the question of vacation arose. The cause of action for granting permission was the non-require- ment by the landlord of the premises for the time  mentioned in  the  agreement whereas cause of action for  eviction  is non-vacation  by  the  tenant after the  expiry  of  period. Therefore, it is immaterial who is the landlord at the  time when the action for vacation arose.     Even on facts permission was applied for by the landlord as, premises was surplus to his need for a limited period of 3  years due to the reason that his son had gone abroad  and he was expected to return 32 after three years. Permission was granted for this reason on statement  of  parties. Such necessity to let  out  or  non- requirement by the landlord could not be brought into  those exceptions  which invalidate permission. Therefore death  of the  landlord was immaterial as even the reason for  letting out did not die with death of landlord.     In the result this petition for special leave fails  and is dismissed. In the circumstances of the case the tenant is directed to suffer costs which we quantify at Rs.5,000. R.S.S. Petition dismissed. 33