http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: PARASRAM HARNAND RAO

       Vs.

RESPONDENT: SHANTI PRASAD NARINDER KUMAR JAIN & ANR.

DATE OF JUDGMENT10/04/1980

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KAILASAM, P.S.

CITATION:  1980 AIR 1655            1980 SCR  (3) 444  1980 SCC  (3) 565  CITATOR INFO :  RF         1986 SC1218  (15)

ACT:      Delhi Rent  Control Act,  Section 25 read with Order IX Rule 9  C. P.  C., scope  of-Whether the  dismissal  of  the earlier suit  of respondent-tenant for default of appearance under Order  IX Rule  9 C.  P. C.  a bar  for an application under section 25 of the Delhi Rent Control Act.      Transfer of  tenancy rights by the Official Liquidator, whether voluntary  and did  not come  under the  mischief of section 14(1) (b) of the Delhi Rent Control Act.

HEADNOTE:      The appellant  landlord executed  a lease in respect of the disputed  premises in  favour of  respondent 2 for three years as  far back  as 1-4-1942. In 1948, a suit was brought by the  appellant for eviction of the tenant for non payment of rent  on the  ground of  conversion of  the user  of  the premises. The  suit for possession was however dismissed but a decree dated 31-11-1948 for arrears of rent was passed and it  was   held  that   Laxmi  Bank   was  the  real  tenant. Subsequently, the  Bombay High  Court ordered the Bank to be wound up  and in  the winding up proceedings, the High Court appointed an  Official Liquidator  who on 16-2-1961 sold the tenancy rights  to respondent  No. 1. The sale was confirmed by the  High Court  on the same date and as a result thereof respondent No.  1 took possession the premises on 24-2-1961. On 5-1-1961,  the landlord  appellant filed  an  application under the Delhi Rent Control Act for eviction of Laxmi Bank. On 31-7-1961,  a decree for eviction was passed in favour of the appellant.  On 22-1-1963,  respondent No. 1 filed a suit for declaration  that  he  was  a  tenant  of  the  landlord appellant. The  suit was dismissed for non-prosecution on 5- 5-1964 and  an application  to set  aside the ex parte order was also  dismissed and  the appeal  against that order also failed. Thereafter  respondent No.  1 filed  an  application under Section 25 of the Delhi Rent Control Act for recalling the warrant  of possession  issued by the Court in pursuance of the  decree dated  31-7-1961 in  favour of the appellant. The Rent  Controller allowed  it on 20-12-1966. An appeal to the Rent  Controller Tribunal was ordered by order dated 25- 11-1968 in favour of the appellant. A second appeal filed by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

respondent No. 1 to the High Court was allowed in his favour and the  Rent Controller’s  order allowing  recalling of the warrant of  possession was  restored. Hence  the  appeal  by special leave by the landlord.      Allowing the appeal, the Court ^      HELD: 1.  The application  of respondent  No.  1  under Section 25  of the  Delhi Rent Control Act is clearly barred by  the  principle  contained  in  order  IX  Rule  9  Civil Procedure  Code.  It  was  the  appellant  who  brought  the previous suit which resulted in a decree for eviction of the tenant on  31-7-1961-a date  when  the  Ist  respondent  had already taken  possession  of  the  premises  by  virtue  of transfer made  by the  Official Liquidator. There is nothing to show  that respondent  No. 1  was  a  tenant  within  the meaning of Delhi Rent Control 445 Act so as to maintain an application under section 25 of the Act, when  in fact  he was an unlawful sub-lessee. [447A, E, F-G]      Suraj Ratan  Thirani and  Ors. v.  Azamabad Tea Co. and Ors. [1964] 6 S. C. R. 192; applied.      2. The  language of  section 14(b)  of the  Delhi  Rent Control Act is wide enough not only to include any sub-lease but even an assignment or any other mode by which possession of the  tenanted premises  is parted.  In view  of the  wide amplitude of  s.  14  (b),  it  does  not  exclude  even  in involuntary sale. [448D-E]      In the instant case, the official Liquidator had merely stepped into  the shoes of Laxmi Bank which was the original tenant and  even if  the official liquidator had transferred the tenancy  interest to respondent No. 1 under the order of the Court,  it was  on behalf of the original tenant. It was undoubtedly a  voluntary sale  which clearly fell within the mischief of  s. 14  (1) (b)  of the  Delhi Rent Control Act. Assuming that  the sale  by the  Official Liquidator  was an involuntary sale,  then it  undoubtedly became an assignment as provided  for by  s. 14  (b) of  Delhi Rent  Control Act. [448A-C]      Krishna Das  Nandy v.  Bidhan Chandra  Roy, A.I.R. 1959 Cal. 181 Overruled.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1085 of 1970.      Appeal by  Special Leave  from the  Judgment and  Order dated 17. 3. 1969 of the Delhi High Court in SAD No. 2/69.      P. R. Mridul and O. P. Sharma for the Appellant.      S. K. Bisaria for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI,J.  This appeal  by special leave is directed against a  judgment of  the Delhi Court and arises out of an application filed  by Respondent No. 1 who claimed to be the tenant of the appellant, recalling the warrant of possession issued by  the Controller in pursuance of a decree dated 31- 7-1961 passed against the 1st respondent.      The case  had a  rather chequered  career having passed through several phases. To begin with the landlord-appellant executed a  lease in  respect of  the disputed  premises  in favour of  Respondent No.  2 for  three years as far back as 1.4.1942. In  1948, a  suit was brought by the appellant for eviction of the tenant for non-payment of rent on the ground of conversion  of the  user of  the premises.  The suit  for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

possession was  however dismissed but a decree dated 31. 11. 1948 for  arrears of  rent was  passed and  it was held that Laxmi Bank  was the  real tenant.  Subsequently, the  Bombay High Court ordered the 446 Bank to  be wound  up and in the winding up proceedings, the said High  Court appointed an Official Liquidator who on 16. 2. 1961  sold the  tenancy rights  to Respondent No. 1-S. N. Jain. This  sale was confirmed by the High Court on the same date and  as  a  result  there  of  respondent  No.  1  took possession of  the premises on 24.2.1961. On 5. 4. 1961, the land-lord-appellant filed  an application  under  the  Delhi Rent Control Act for eviction of Laxmi Bank. On 31. 7. 1961, a decree  for eviction was passed in favour of the landlord- appellant. On 23-1-1963. Respondent No. 1 filed a suit for a declaration that  he was a tenant of the landlord-appellant. This suit  was dismissed for non-prosecution on 5.5.1964 and an application  to set  aside the  ex parte  decree was also dismissed and  the appeal  against that  order also  failed. Thereafter Respondent No. 1 filed an application under s. 25 of Delhi  Rent Control  Act (hereinafter  referred to as the Act) for  recalling the  warrant of possession issued by the Court in  pursuance of  the decree dated 31.7.1961 in favour of the landlord.      The present appeal arises out of these proceedings. The Rent Controller  allowed the  application and  recalled  the warrant of  possession by  its Order dated 20. 12. 1966. The matter was  then taken  up by  the landlord in appeal to the Rent Control  Tribunal which by its Order dated 25. 11. 1968 reversed the  order of the Rent Controller and dismissed the tenant’s application.  A second  appeal against the order of Tribunal was  then filed  by the  tenant to  the High  Court which reversed  the order  of the  Rent Control Tribunal and restored the order of the Rent Controller, hence this appeal by special leave.      Mr.  Mridul  appearing  for  the  appellant  challenged before us the findings of the High Court on point nos. 1 & 3 which are formulated at page 91 of the judgment of the Delhi High Court. These points may be extracted thus:-           "(1) The  application made by the appellant before      the High  Court under  section 25  was  not  barred  by      reason of  the dismissal  of the  appellants  suit  for      default of appearance under Order IX Rule 9, C.P.C.           (3) The  transfer to the appellant by the Official      Liquidator of  the tenancy  rights being  voluntary did      not come within the mischief of section 14(1)(b) of the      Act.      In the  first place  it was argued that so far as point No. 1 is concerned, the High Court was wrong in holding that the application  of Respondent  No. 1  was not barred by the reason of  the dismissal of the appellant’s suit for setting aside the  ex-parte decree  by the principle of Res Judicata or Order IX Rule 9 C.P.C. It was contended that 447 even if  the previous  suit filed  by respondent  No. 1  for declaration of  his status  as a  tenant was  dismissed  for default but  as the application for setting aside the decree also failed,  there was  an adjudication  against  the  then plaintiff-respondent No.  1 and  therefore the  present suit was clearly  barred by  the principles  of Res  Judicata  or Order IX Rule 9. At any rate there can be no escape from the position that  the application  of respondent No. 1 would be clearly barred  by the  principle contained in Order IX Rule 9, C.P.C.  In case  of Suraj  Ratan Thirani  & Ors.  v.  The Azamabad Tea Co. & Ors.(1) this Court held thus:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

         "We are not however impressed by the argument that      the ban  imposed by  O.  IX,  r.  9  creates  merely  a      personal  bar   or  estoppel   against  the  particular      plaintiff suing  on the same cause of action and leaves      the matter  at large  for  those  claiming  under  him.      Beyond the  absence  in  O.  IX,  r.  9  of  the  words      referring "to those claiming under the plaintiff" there      is nothing  to warrant  this argument.  It has  neither      principle, nor  logic to  commend it  .. The rule would      obviously have no value and the bar imposed by it would      be rendered meaningless if the plaintiff whose suit was      dismissed  for  de  fault  had  only  to  transfer  the      property to  another and the latter was able to agitate      rights which  his vendor  was  precluded  by  law  from      putting forward."      In the  instant case  it was  appellant who brought the previous suit which resulted in a decree for eviction of the tenant on  31-7-1961-a date  when  the  1st  respondent  had already taken  possession  of  the  premises  by  virtue  of transfer made  by the Official Liquidator. Thus the identity of the  subject matter  being substantially  the same,  this case clearly falls within the ambit of the ratio in the case supra. On  this ground  alone  therefore  the  appellant  is entitled to  succeed because the High Court with due respect does not  appear to  have properly  construed the  scope  of Order IX Rule 9 C.P.C. There is however nothing to show that respondent No.1  was  tenant  within  the  meaning  of  Rent Control Act  so as to maintain an application under s. 25 of the Act  when in  fact he  was an  unlawful  sub-lessee.  As regards point No. 3, the High Court relying on a decision of Calcutta High  Court in Krishna Das Nandy vs. Bidhan Chandra Roy(2)  has   found  that  as  the  transfer  in  favour  of respondent No. 1 by the Official Liquidator was confirmed by the Court,  the status of the tenant by respondent No. 1 was acquired by operation of law and therefore the transfer 448 was an  involuntary transfer  and  the  provisions  of  Rent Control Act would not be attracted. After careful perusal of Calcutta case,  in the  first  place  it  appears  that  the section concerned has not been extracted and we are not in a position to know what was the actual language of the section of the  Bengal Act.  Secondly, in  our opinion, the official liquidator had  merely stepped  into the shoes of Laxmi Bank which was  the original  tenant and  even  if  the  official liquidator  had   transferred  the   tenancy   interest   to respondent No.  1 under  the orders  of the Court, it was on behalf  of   the  original  tenant.  It  was  undoubtedly  a voluntary sale  which clearly  fell within  the mischief  of s.14(1)(b) of  the Delhi Rent Control Act. Assuming that the sale by  the official  Liquidator was  an involuntary  sale, then it  undoubtedly became an assignment as provided for by s. 14(b) of Delhi Rent Control Act. S. 14(b) runs thus:-           "14(b)-that the  tenant has,  on or  after the 9th      day of June, 1952, sublet, assigned or otherwise parted      with the  possession of  the whole  or any  part of the      premises with  out obtaining  the consent in writing of      the landlord."      The language  of s.  14(b) is  wide enough  not only to include any  sub-lease but  even an  assignment or any other mode by which possession of the tenanted premises is parted. In view  of the  wide amplitude of s.14(b) we are clearly of the opinion  that it  does not  exclude even  an involuntary sale. Fore  these reasons  therefore we  are unable to agree with the  view taken  by  the  High  Court.  The  appeal  is accordingly allowed,  the judgment  and decree  of the  High

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

Court are set aside and the plaintiff’s application under s. 25 of the Delhi Rent Control Act is dismissed.      Mr.  Bisaria,   learned  counsel   appearing  for   the respondent submitted  that as  the tenant  has been  in  the premises for a period of 19 years and is conducting business therein,  he  may  be  permitted  sufficient  time  to  make alternative  arrangements.  Mr.  Mridul  appearing  for  the appellant fairly conceded that he would have no objection if one year’s  time is  allowed to  the respondent  provided he gives an  undertaking for  handing over  peaceful and vacant possession at  the expiry  of the  time. We  therefore allow time to  the respondent  to vacate the premises on or before 15th  April,   1981  on  the  condition  that  he  files  an undertaking within two weeks to the effect (1) that he shall hand-over vacant  and peaceful possession to the landlord on or before 15th April, 1981; (2) that he shall not induct any per son  on the premises; (3) that he shall go on paying the compensation for  wrongful use of premises equivalent to the rent. 449      The undertaking must be filed supported by an affidavit within two weeks from today failing which the order granting time shall stand revoked.      There will be no order as to costs. S.R.                                         Appeal allowed. 450