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PETITIONER: BAL KISHAN

       Vs.

RESPONDENT: OM PRAKASH & ANR.

DATE OF JUDGMENT26/08/1986

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) KHALID, V. (J)

CITATION:  1986 AIR 1952            1986 SCR  (3) 622  1986 SCC  (4) 155        JT 1986   253  1986 SCALE  (2)347

ACT:      Haryana Urban (Control of Rent and Eviction) Act, 1973, Ss. 2(h)  and 13(2)  (ii) (a)-Eviction on the ground of sub- letting whether  legal heir  of tenant  can be  treated as a tenant.      Code of  Civil Procedure,  1908, O.XXII  Rule  4--Legal representative of the deceased respondent-Lenant-Whether can be treated as a tenant and not a trespaper.

HEADNOTE:      The appellant  was brought  on  record,  as  the  legal representative of the deceased-tenant during the pendency of an  eviction   petition.  He  filed  an  additional  written statement contending  that the  premises in  question  being non-residential and commercial premises, the legal heir of a tenant could  not be treated as a tenant as defined under s. 2(h) of  the Haryana  Urban (Control of Rent & Eviction) Act and therefore, the possession of such legal heir of a tenant would be  that of  a trespasser and, the Rent Controller had no jurisdiction  to proceed  with the  case as  he  was  not competent  to   pass  a  decree  for  possession  against  a trespasser.  Overruling   the  said   contention,  the  Rent Controller allowed  the petition  for eviction on the ground that the  tenant  had  sublet  the  premises  in  favour  of respondent  No.   2  without  the  written  consent  of  the landlord. The appellant’s appeal and the revision before the Appellate Authority and the High Court respectively failed.      Dismissing the appeal by the appellant, ^      HELD: 1.  The plea of the appellant that he was holding the property  as a  trespasser is  not tenable  because  the possession of the tenant being permissive, the possession of the appellant  who had succeeded to the estate of the tenant as his  heir could  not be  that  of  a  trespasser  in  the circumstances of  the case.  He could not, therefore, resist the passing  of the  decree for  eviction on  proof  of  the ground in s. 13(ii) (a) of the Act. [525G-H; 526A] 623      2. Order  XXII Rule  4 of  the Code  of Civil Procedure 1908 provides  that where one of two or more defendants dies and the  right to sue does not survive against the surviving

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defendant or  defendants alone,  or a sole defendant or sole surviving defendant  dies and the right to sue survives, the court, on  an application  made in  that behalf, shall cause the legal  representative of  the deceased  defendant to  be made a  party and  shall proceed with the suit. Sub-rule (2) of rule  4 of Order XXII authorises the legal representative of a  deceased defendant or respondent to file an additional written statement  or statement  of objections  raising  all pleas which  the deceased  tenant had  or could  have raised except those  which were  personal to the deceased defendant or respondent. [625D-G]      In the  instant  case,  since  the  action  related  to property,  the  right  to  sue  did  survive  and  the  Rent Controller was  right in  bringing the legal representative, of the  deceased-tenant, on  record. The appellant could not have therefore,  in the capacity of the legal representative of the  deceased-respondent who  was  admittedly  a  tenant, raised the plea that he was in possession of the building as a  trespasser   and  the   petition  for  eviction  was  not maintainable. [625G-H]      3. It  is possible for the court in an appropriate case to implead  the heirs  of the  deceased defendant  in  their personal capacity  also in  addition  to  bringing  them  on record as  legal representatives  of the  deceased defendant avoiding thereby  a separate  suit for  a  decision  on  the independent title.  But, in  the instant case, the appellant cannot claim  the aforesaid  benefit for  two reasons. First the appellant  had not  been brought on record as respondent in the  eviction petition  in his  personal capacity but had been brought  on record  only as the legal representative of the tenant.  Secondly, even  if a  prayer had  been made  to bring the  appellant on record in his personal capacity, the Rent Controller  could not  have allowed the application and permitted him to raise the plea of independent title because such  a  plea  would  oust  the  jurisdiction  of  the  Rent Controller to try the case itself. [626E-F]      Jagdish Chander Chatterjee & Ors. v. Sri Kishan & Anr., [1973] 1 SCR 850, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1960 of 1980      From the  Judgment and  Order dated  23.7.1980  of  the Punjab & Haryana High Court in C.R. No. 904 of 1980 624      Mrs. Urmila  Kapur and  S.N.  Agarwala  for  M/s.  B.P. Maheshwari & Co. for the Appellant.      S.K. Mehta,  M.K. Dua, Aman Vachhar and E.M.S. Anam for the Respondents.      The Judgment of the Court was delivered by      VENKATARAMIAH, J.  The Ist Respondent Om Parkash is the landlord of a building situated in Ferozpur Jhirka, District Gurgaon in  the State of Haryana. He had leased out the said premises in  favour of  one  Musadi  Lal  for  a  commercial purpose. After Musadi Lal took the premises on lease he sub- let the  premises in  favour of  Med  Ram-Respondent  No.  2 without the  written consent  of the  landlord  Om  Parkash. Thereupon Om  Parkash filed  a petition for eviction against Musadi Lal and Med Ram before the Rent Controller, under the provisions  of  the  Haryana  Urban  (Control  of  Rent  and Eviction) Act,  1973  (Act  No.  11  of  1973)  (hereinafter referred to as ’the Act’) on the ground mentioned in section 13(2) (ii)  (a) of  the Act  which entitled  the landlord to

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file a  petition for eviction where the tenant had after the commencement of  the Act  without the written consent of the landlord transferred  his right  under the  lease or sub-let the building.  Musadi Lal  and Med  Ram, the  tenant and the alleged  sub-tenant   respectively  were  impleaded  as  the respondents to  the petition.  During the  pendency  of  the petition  Musadi   Lal  died.   Thereupon  Bal  Kishan,  the appellant herein,  filed  an  application  before  the  Rent Controller  to   bring  him   on   record   as   the   legal representative of  the deceased  Musadi Lal alleging that he was the  adopted son of Musadi Lal. The said application was opposed by  the landlord.  Overruling the  objections of the landlord the  Rent Controller ordered that the appellant Bal Kishan  should   be  brought   on  record   as   the   legal representative of  the deceased  Musadi Lal. After the above order was  passed Bal  Kishan filed  an  additional  written statement contending  that the  premises in  question  being non-residential and commercial premises, the legal heir of a tenant could  not be  treated as  a tenant  as defined under section 2(h)  of the  Act and,  therefore, the possession of such legal  heir of  a tenant would be that of a trespasser. That being  the case,  according to  the appellant, the Rent Controller had  no jurisdiction  to proceed with the case as the Rent  Controller was  not competent to pass a decree for possession against  a trespasser.  On the  above ground  the appellant prayed for the dismissal of the eviction petition. Overruling the  said contention, the learned Rent Controller allowed the petition for eviction holding that Musadi 625 Lal  had   sub-let  the  premises  in  favour  of  Med  Ram, Respondent  No.   2  without  the  written  consent  of  the landlord. Against  the judgment  of the Rent Controller, the appellant filed  an appeal before the Appellate Authority at Gurgaon. That  appeal was dismissed. Against the judgment in that appeal,  the appellant filed a revision petition before the High  Court which  was also  dismissed. This  appeal  by special leave  is filed  against the  judgment of  the  High Court.      In  this   appeal  also   it  is   contended  that  the proceedings  before   the  Rent   Controller  were   without jurisdiction since the appellant was not a tenant as defined in section  2(h) of the Act because the building in question was a non-residential building. That Musadi Lal was a tenant under Respondent  No. 1 is not disputed. We shall assume for purposes  of  this  case  but  without  deciding,  that  the appellant Bal  Kishan was  not entitled  to be  treated as a tenant of  the building  in question  under the  Act on  the death of  Musadi Lal.  The  question  for  consideration  is whether  in   the  circumstances   of  this  case  the  Rent Controller had  lost his jurisdiction to try the case before him.      Order XXII  Rule 4 of the Code of Civil Procedure, 1908 provides that  where one  of two or more defendants dies and the right  to sue  does not  survive against  the  surviving defendant or  defendants alone,  or a sole defendant or sole surviving defendant  dies and the right to sue survives, the Court, in  an application  made in  that behalf, shall cause the legal  representative of  the deceased  defendant to  be made a  party and  shall proceed  with the  suit. Since  the action in  this case  related to  property, the right to sue did survive  and the  Rent Controller  was right in bringing the legal  representative of  the  deceased  Musadi  Lal  on record. Sub-rule  (2) of  rule 4  Order XXII  authorises any person who  is brought on record as the legal representative of a  defendant to  make  any  defence  appropriate  to  his

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character as legal representative of the deceased defendant. The said  sub-rule authorises  the legal representative of a deceased defendant  or  respondent  to  file  an  additional written statement  or statement  of objections  raising  all pleas which  the deceased  tenant had  or could  have raised except those  which were  personal to the deceased defendant or respondent. In the instant case Bal Kishan, the appellant could not  have, therefore,  in the  capacity of  the  legal representative of the deceased respondent Musadi Lal who was admittedly  a  tenant,  raised  the  plea  that  he  was  in possession of  the building as a trespasser and the petition for eviction  was not  maintainable. It  is true  that it is possible for the Court in an appropriate case to implead the heirs of a deceased defendant in their 626 personal capacity  also in  addition  to  bringing  them  on record as  legal representatives  of the  deceased defendant avoiding thereby  a separate  suit for  a  decision  on  the independent title  as observed in Jagdish Chander Chatterjee & Ors.  v. Sri  Kishan &  Anr., [1973]  1  S.C.R.  850.  The relevant part of that decision at page 854 reads thus:           "Under sub-clause (ii) of Rule 4 of Order 22 Civil           Procedure Code  any person  so made  a part  as  a           legal representative  of the  deceased  respondent           was entitled  to make  any defence  appropriate to           his  character  as  legal  representative  of  the           deceased respondent. In other words, the heirs and           the   legal   representatives   could   urge   all           contentions which  the deceased  could have  urged           except only  those  which  were  personal  to  the           deceased. Indeed  this does  not prevent the legal           representatives from  setting up  also  their  own           independent title, in which case there could be no           objection to  the court impleading them not merely           as the  legal representatives  of the deceased but           also in their personal capacity avoiding thereby a           separate suit  for a  decision on  the independent           title."      But in  the instant case the appellant cannot claim the benefit of  the above  decision for  two reasons. First, the appellant had  not been brought on record as a respondent in the eviction  petition in his personal capacity but had been brought on record only as the legal representative of Musadi Lal. Secondly,  in the circumstances of this case, even if a prayer had been made to bring the appellant on record in his personal  capacity,  the  Rent  Controller  could  not  have allowed the  application and permitted him to raise the plea of independent  title because  such a  plea would  oust  the jurisdiction of  the Rent Controller to try the case itself. The observations  made in  the Jagdish  Chander Chatterjee & Ors. case  (supra) have  to be  confined to only those cases where the Court hearing the case has jurisdiction to try the issues  relating   to  independent   title  also.  The  Rent Controller, who  had no  jurisdiction to pass the decree for possession against  a trespasser  could not have, therefore, impleaded the  appellant as a respondent to the petition for eviction in  his independent capacity. We do not, therefore, find any  substance in  the above  plea  of  the  appellant. Further the  plea of  the appellant  that he was holding the property as  a trespasser  is also  not tenable  because the possession of Musadi Lal being permissive, the possession of the appellant  who had succeeded to the estate of Musadi Lal as his  heir could  not be  that  of  a  trespasser  in  the circumst- 627

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ances of  the case.  He could  not,  therefore,  resist  the passing of the decree for eviction on proof of the ground in section 13(2) (ii) (a) of the Act.      We  agree  with  the  findings  recorded  by  the  Rent Controller and  the  Appellate  Authority  which  have  been affirmed by  the High  Court that Musadi Lal had sub-let the premises without  the written  consent of  the landlord and, therefore, the  legal representative  of the  tenant and the sub-tenant were liable to be evicted from the premises under the Act.  The appeal,  therefore, fails and it is dismissed. There will be no order as to costs. M.L.A.                                     Appeal dismissed. 628