Delhi District Court
Shri Harjit Singh vs Smt. Padma Sehgal on 4 January, 2021
IN THE COURT OF MS. NEENA BANSAL KRISHNA:
PRINCIPAL DISTRICT & SESSIONS JUDGE/RENT CONTROL TRIBUNAL
SOUTH EAST DISTRICT, SAKET COURT, NEW DELHI.
RCT No.11/2019
SHRI HARJIT SINGH
S/o Late Sh. Budh Singh
R/o WZ-54, Gali No.2,
Sadh Nagar, Palam Colony,
New Delhi-110045.
......Appellant/Landlord
Versus
1 SMT. PADMA SEHGAL
W/o Late Sh. Ved Prakash Sehgal
2 MS. RANI SEHGAL
D/o Late Sh. Ved Prakash Sehgal
3 SMT. PAYAL NAGDEV
D/o Late Sh. Ved Prakash Sehgal
4 SMT. DEEPAL SEHGAL
D/o Late Sh. Ved Prakash Sehgal
All at: Shop No.8-B,
Pushpa Market, Lajpat Nagar,
New Delhi-110024.
......Respondents/ Legal Heirs of Tenant
Date of filing of Appeal: 30.08.2019
Date of Decision : 04.01.2021
JUDGMENT
An appeal under Section 38 Delhi Rent Control Act, 1958 (hereinafter called the Act) has been filed against the order dated Harjit Singh Vs. Padma Sehgal page 1 of 42 18.07.2019 vide which the Ld. ARC has allowed the objections filed by respondent No. 2 Ms. Rani Sehgal and dismissed the Execution petition of the appellant/ landlord. 2 The facts in brief are that an Eviction Petition No. E352/09(old No.252/02) under Section 14 (1) (k) of the Act in respect of the Shop No.8B, Pushp Market, New Delhi was filed on the ground of misuse against Late Sh. Ved Prakash Sehgal, (husband of respondent) the tenant on 26.01.2002. 3 It was stated in the Eviction Petition that Shop No.8 along with back portion consisting of 32 sq. yards and 59.7 sq. yards Pushpa Market, Lajpat Nagar, New Delhi was allotted by L&DO office to Sh. Budh Singh, father of petitioner Sh. Harjit Singh vide Lease Deed executed on 14.04.81 commencing from 01.10.1955. According to Clause I (v), (vi) and (vii) and Clause II, the property was to remain a single storey property and no construction could be made and there could not be any sub-division of the aforesaid property. The allotted shop was sub-divided into six shops and the suit shop bearing No.8B measuring 8.4½ X 12 out of the portion mentioned 59.7 Sq. Yards was let out to Sh.Ved Sehgal, husband of respondent No.1 and father the respondents No 2 to 4 for godown purpose. It was asserted by the appellant/ landlord that Harjit Singh Vs. Padma Sehgal page 2 of 42 the premises was being misused as a shop and hence, the possession of the property was sought under Section 14 (1) (k) of the Act.
4 The Eviction Petition was allowed vide order dated 13.02.2004 by observing that there was illegal construction on the rear side of the area 59.7 Sq. Yards which was being misused as six shops in regard to which Show Cause Notices on behalf of L&DO from time to time were issued to the appellant and despite repeated notices to the tenant/ respondent, the misuse was not stopped which was in violation of the Lease Deed Ex.PW1/1. As mandated by law before passing an eviction order, an enquiry was initiated under section 14(11) of the Act.
5 The Ld. ARC conducted the enquiry and vide order dated 02.01.2008 directed Sh. Ved Prakash Sehgal to stop the misuse of the suit premises forthwith and to deposit up to date misuse charges and damages for temporary regularization of the breaches. The order was never complied with by Sh. Ved Prakash Sehgal during his life time and after his demise on 13.12.2011 by his legal heirs/respondents and the matter was kept pending for one reason or the other.
6 The factum of death of Late Sh. Ved Prakash Sehgal was Harjit Singh Vs. Padma Sehgal page 3 of 42
informed by the Ld. Counsel for the respondent on 12.01.2012. The appellant was directed to take appropriate steps but no application for bringing the Legal Heirs of the deceased tenant was ever filed by the appellant. Some intervener Sh. Pradeep Arora and Smt. Sushma Arora moved an application under Section 1 Rule 10 CPC, but the same was disposed on 03.09.2016 in favour of the appellant/ landlord and against the respondent/ interveners. 7 Respondent No.1 Smt. Padma Sehgal, wife of Late Ved Prakash Sehgal appeared before the Ld. ARC and gave an undertaking on 13.04.2017 to hand over the peaceful possession of the property on or before 13.09.2017. An order was made directing Smt. Padma Sehgal to abide by her statement and it was further noted that in case she failed to vacate the premises by 13.09.2017, the appellant would be at liberty to file the execution to recover the possession of the suit shop. The appellant thus withdrew his petition.
8 Smt. Padma Sehgal failed to comply with her undertaking and did not deliver the possession of the suit property; consequently the appellant filed an Execution Petition on 18.09.2017. The respondent no.2 Rani Sehgal (daughter of Late Sh. Ved Prakash Sehga) sought stay of execution and also filed Harjit Singh Vs. Padma Sehgal page 4 of 42 her objections claiming that the statement given by Smt. Padma Saxena was not binding upon her. The Ld. ARC vide impugned order dated 18.07.2019 allowed the objections filed by Rani Sehgal and dismissed the Execution Petition of the appellant. Aggrieved by the said order, present Appeal has been preferred by the Landlord.
9 The impugned order is challenged by the appellant/ landlord on the grounds that the statement given by Respondent no.1 was binding on the other Legal heirs as only Smt. Padma Sehgal Respondent no.1 was in possession of the suit shop after the demise of Sh. Ved Prakash Sehgal. Respondents' no.2 to 5 were not even in possession and it has now come to the knowledge of the appellant that they were all living under the same roof. It is asserted that Supreme Court in Suresh Kumar Kholi Vs. Rakesh Jain in Civil Appeal No.3996 of 2018 decided on 19.04.2018 has held that when the original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the heirs as joint tenants. It is not necessary for the landlord to implead all legal heirs of the deceased tenant whether they occupy the property or not. The statement made by Smt. Padma Sehgal was thus, binding on all the legal heirs Harjit Singh Vs. Padma Sehgal page 5 of 42 including the Objector Rani Sehgal. However, the respondents with an ill intention and to abuse the process of law entered into conspiracy and filed the objections concealing from the Court and from the appellant that she was not the sole surviving legal heir. 10 It is further asserted that the Addl. Rent controller while recording the statement of Respondent no.1 Padma Sehgal and consequently making an order on the basis of the statement, exercised his inherent powers and considered Respondent no.1 as a party to the suit after the death of her husband as she was continuously participating in the Eviction Petition and had even filed reply to various applications as well as filed applications for and on behalf of her deceased husband. The minor legal error on the part of the appellant in not filing the impleadment application for bringing the legal heirs of deceased tenant before the recording of the statement of the Respondent no.1 cannot be made a basis for discarding the Eviction Order that was eventually made by the Ld. ARC. The veracity and truthfulness of the facts remains the same and there is also an admission made in regard to the default of the tenant. The ARC has failed to appreciate the facts of the case on merit and has failed to consider that the order of Eviction was made on the basis of admissions of Respondent no.1 and the Harjit Singh Vs. Padma Sehgal page 6 of 42 question of deciding the issue on merits in the Execution Petition did not arise. It is thus, submitted that the impugned order allowing the objections of Respondent no.2 is liable to be set aside.
11 The respondents in their detailed reply dated 09.12.2019 have taken the objection that the appeal has not been preferred within the period of limitation and is barred by limitation. On merits, it is submitted that the order of the Rent Controller dated 13.02.2004 and 02.01.2008 holding that misuse of suit premises was established, was set aside by the Predecessor of this Court vide order dated 17.10.2011 with the directions to re-adjudicate the matter in accordance with law. The tenant Late Sh. Ved Prakash Sehgal died on 13.12.2011 and was succeeded by his wife Smt. Padma Sehgal and three daughters Rani, Payal and Geeta Sehgal. The factum of death of tenant was brought to the notice of the Court on 12.01.2012 and the same was confirmed by the petitioner on 13.03.2012 and matter was adjourned for taking appropriate steps for substitution of legal heirs of the deceased tenant. However, no steps were taken to bring the legal heirs on record till 13.04.2017 and as such the Eviction Petition stood abated under Article 120 of the Limitation Act. The petitioner also Harjit Singh Vs. Padma Sehgal page 7 of 42 failed to file an application for setting aside the abatement within 60 days as provided under Article 121 of the Limitation Act and as such the Eviction Petition stood abated. On 13.04.2017 Smt. Padma Sehgal on her own appeared before the Court and made a statement about vacating the premises on or before 13.09.2017 on the basis of which she was directed to hand over the peaceful and vacant possession on or before 13.09.2017 to the landlord. 12 The objector Rani Sehgal on coming to know about the order of eviction in respect of suit property filed her objections before the Executing Court which were allowed by the impugned order. It is submitted that there is not merit in the appeal since the impugned order is based on proven facts and has been made in the circumstances of the case. It is not in dispute that the suit premises is a commercial premises but it is asserted that the statutory tenancy in respect of the commercial premises is heritable in accordance with the law of succession and that all the legal heirs stepped into the possession of the deceased tenant and continued to enjoy the protection accorded by the Act. Once, the protection of the Act is available to all the legal heirs, they cannot be held to be bound by a statement made by one legal heir. Considering the inheritability of the commercial tenancy, the Harjit Singh Vs. Padma Sehgal page 8 of 42 statement made by Smt. Padma Sehgal cannot be held to be binding on all the other legal heirs. Moreover, the Eviction Order had been made arbitrarily contrary to the provision of Order 23 Code of Civil Procedure without giving any notice to the interested persons. Ld. ARC merely recorded the compromise and passed an Eviction Order without application of judicial mind. Moreover, the concerned decree has been passed in violation of Order 23 C.P.C. and lacks legal sanctity. It is, therefore, submitted that the appeal is without merit and is liable to be dismissed. 13 I have heard the arguments and have also perused the record and the written submissions on behalf of both the parties. My observations are as under:
14 The policy and purpose as reflected in the Preamble indicates of the Rent Act was enacted to grant protection to the tenants in the matters of eviction, repairs and rent. The Tribunals were given exclusive jurisdiction for enforcement of its provisions and expressly barred eviction under any circumstances expect on proof of any of the grounds specified therein. Clauses (a) to (1) of the proviso to S. 14(1) contain the grounds on which recovery of possession of the premises can be ordered by the Controller. Section 14 (1) (k) gives a right to seek eviction where the premises Harjit Singh Vs. Padma Sehgal page 9 of 42 are used in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or Municipal Corporation of Delhi. Sub Section (11) of S.14, however gives an option to the Controller to pass an order whereby recovery of possession may not be directed but in the alternative the tenant maybe directed to comply with the conditions imposed on the landlord by the Authorities referred to in clause (k) and to stop the misuse of the premises in question as Sub Section (11) of S.14 also uses the words "pay to that authority such amount by way of compensation as the Controller may direct". 15 Keeping in view the fact that clause (k) of the proviso to sub- section (1) of Section 14 has been inserted in order that the unauthorized use of the leased premises should come to an end, and also bearing in mind that the continued unauthorized use would give the Principal lessor the right of re-entry after cancellation of the deed, the aforesaid words occurring in sub- section (11) of Section 14 cannot be regarded as giving an option to the Controller to direct payment of compensation and to permit the tenant to continue to use the premises in an unauthorized manner. The Principal lessor may, in a given case be satisfied in cases of breach of lease to get compensation only and may waive Harjit Singh Vs. Padma Sehgal page 10 of 42 its right of re-entry or cancellation of lease. In such a case the Controller may, instead of ordering eviction under Section 14(1)(k) direct payment of compensation as demanded by the authorities mentioned in clause (k). Where, however, compensation is demanded in respect of condoning/ removal of the earlier breach, but the Authority insists that the misuser must cease then the Controller has no authority to pass an order under Section 14(11) giving a license or liberty of continued misuse. In other words, sub-section (11) of Section 14 enables the Controller to give another opportunity to the tenant to avoid an order of eviction. Where the Authority concerned required stoppage of misuse then an order to that effect has to be passed, but where the Authority merely demands compensation for misuse and does not require the stoppage of misuser then, only in such a case would the Controller be justified in passing an order for payment of compensation alone.
16 In Dr. K. Madan Vs. Smt. Krishnawati & Anr. AIR 1997 SC 579 a reference was made to Faqir Chand Vs. Shri Ram Rattan Bhanot AIR 1973 1 SCC 572 and Curewell (India) Ltd. Vs. Sahib Singh 1992 SCW 1702 and it was observed that continued wrongful user cannot be permitted by levying penalty or Harjit Singh Vs. Padma Sehgal page 11 of 42 compensation and in such a case an order of eviction for stoppage of misuse of premises need to be passed and it will not be sufficient if compensation alone is directed to be paid. 17 In Bharat Sales Ltd. & Anr. Vs. Laxmi Devi 98 (2002) DLT 383 SC it was observed that from conjoint reading of Section 14(1)
(k) and Section 14(11) it was clear that the tenant is given an opportunity to stop the misuse or stop breach of condition of the lease and discontinue the misuser by giving a notice to him and if despite such notice the tenant fails to take the necessary steps for stoppage of misuse, a right is vested in the landlord to seek an order of eviction 18 In the present case, the misuse was that the Shop No.8 had been sub divided and unauthorized construction had been carried out in contravention of the Lease Deed. The ld. ARC vide order dated 02.01.2008 under Section 14(11) held that L &DO was not agreeable to condone the unauthorized construction, misuse and sub-division of the property and thus, the respondent was directed to stop the misuse of the premises and also to deposit the misuse charges and damages for temporary regularization of the breaches w.e.f 03.07.87 to 31.3.2004, within a month.
19 As already discussed above, once it was held that the Harjit Singh Vs. Padma Sehgal page 12 of 42 breaches were not condonable and there could be no
regularization of either misuse or unauthorized construction, mere direction of payment to misuser and damages for temporary regularization of breaches was not sufficient and an eviction order should have necessarily been made against the respondent. However, the record shows that no final eviction order was made even though the enquiry under Section 14(11) stood concluded by the order dated 02.01.2008; the matter kept lingering for payment of misuse charges. This aspect was noted by the Ld. ARC in its order dated 29.07.2008 that the order has become final and it is only the compliance which was being sought from time to time, but considering that the property stood transferred from L& DO to MCD, a notice from MCD was directed to be issued. Thereafter, the matter was adjourned on various dates. Eventually on 23.02.2017, the Successor Court of Ld. ARC again observed that since the misuse charges were not deposited on behalf of the respondent and eviction order should be passed immediately but on the principles of natural justice an opportunity was given to show cause why an eviction order be not made for violation of the order under Section 14 (11) of DRC Act. The record reflects that the Additional Rent Controller had concluded that on account of Harjit Singh Vs. Padma Sehgal page 13 of 42 failure of the tenant to stop misuse, he was liable for eviction. However, having so concluded to the misfortune of the landlord no formal eviction order was ever made on the basis of findings by the ARC.
20 On 12.01.2012 proxy Counsel on behalf of the respondent informed the Court that the tenant Sh. Ved Prakash Sehgal had expired. However, none was present on behalf of the appellant/ petitioner on that date. On the next date i.e 14.03.2012 the petitioner appeared in person and confirmed about the demise of the respondent. Despite the direction to take necessary steps nothing was done by the appellant.
21 Smt. Padma Sehgal wife of deceased Sh. Ved Prakash Sehgal appeared before the Court along with Counsel and made a statement on 13.04.2017 that after the demise of her husband, she has continued in the possession of the suit shop as legal heir and undertook to vacate and hand over the vacant possession of the suit shop on or before 13.09.2017 and further, undertook not to damage the property. The statement of the petitioner/landlord was also recorded accepting the statement made by Smt. Padma Sehgal. On the basis of the statements/ compromise Ld. ARC directed Smt. Padma Sehgal to vacate the premises by Harjit Singh Vs. Padma Sehgal page 14 of 42 13.09.2017 and it was further directed that in case the respondent failed to abide by her statement to vacate the premises on or before 13.09.2017, the landlord/appellant Sh. Harjit shall be at liberty to seek possession through execution proceedings. Consequently, the eviction petition was withdrawn by the appellant. 22 Smt. Padma Sehgal failed to vacate the premises as undertaken by her and an Execution Petition was filed before the Ld. ARC. The respondent herein Ms. Rani Sehgal, daughter of deceased tenant, filed objections claiming the order of Ld. ARC permitting eviction to be illegal. The objections have been allowed and the execution petition has been dismissed. 23 In this context it may be noted that the respondents has asserted in her Reply that the order of Ld. ARC was set aside in appeal vide order dated 17.10.2011 but during the course of arguments it was clarified on behalf of respondents that the other tenants in respect of other shops in property in question had gone in appeal and succeeded but the respondents in the present case never went in appeal and the order of Ld. ARC was never set aside against them.
24 The questions for consideration which arise in the present appeal are:
Harjit Singh Vs. Padma Sehgal page 15 of 42 1) Whether the legal heirs of a statutory tenant in respect of
commercial premises inherit the tenancy rights as joint tenants?
2) Whether an eviction order can be made on the basis of a compromise between the parties in eviction petition?
3) What is the consequence of non-impleadment of legal heirs of the tenant on his demise in the eviction proceedings? and
4) Whether the illegality of an order can be challenged in execution proceedings?
1) Whether the legal heirs of a statutory tenant in respect of commercial premises inherit the tenancy rights as joint tenants.
25 Fundamentally, the concepts of joint tenancy and tenancy-in- common are different and distinct in form and substance: joint tenants have unity of title, unity of commencement of title, unity of interest, unity of equal shares in the joint estate, unity of possession and right of survivorship.
26 Tenancy-in-common is a different concept. There is unity of possession but no unity of title, i.e. the interests are differently held and each co-tenant has different shares over the estate. Thus, the tenancy rights, being proprietary rights, by applying the principle of Harjit Singh Vs. Padma Sehgal page 16 of 42 inheritance, the shares of heirs are different and ownership of leasehold rights would be confined to the respective shares of each heir and none will have title to the entire leasehold property. Therefore, the estate shall be divided among the co-tenants and each tenant in common has an estate in the whole of single tenancy. Consequently, the privity exists between the landlord and the tenant in common in respect of such estate.
27 There has been much debate in various judgments about the true incidence of tenancy inherited by the legal heirs of a statutory tenant. The distinction between heritability of residential and commercial tenancy was explained by the Apex Court in the celebrated judgment of Smt. Gian Devi Anand vs Jeeevan Kumar And Others 1985 AIR 796 SC. It was observed that the term "statutory tenant" is used in English Rent Act and though this term is not to be found in the Indian Acts, in the judgments of the Supreme Court and also various High Courts in India, this term has often been used to denote a tenant whose contractual tenancy has been terminated but who has become entitled to continue to remain in possession by virtue of the protection afforded to him by the statutes in question. S. 2(i) of the Act which defines the term "Tenant" provides that termination of the Harjit Singh Vs. Padma Sehgal page 17 of 42 contractual tenancy does not disqualify him from continuing to be a tenant within the meaning of this Act and the tenant whose contractual tenancy has been determined enjoys the same position and is entitled to protection against eviction. This interest or estate which the tenant continues to enjoy creates a heritable interest in the absence of any provision to the contrary. It was further observed that the amendment of the definition of 'tenant' by Act 18 of 1976 introducing particularly section 2(i) (iii) does not create any additional or special right in favour of the heirs of the 'so called statutory tenant' on his death, but seeks to restrict the right of the heirs of such tenant in respect of residential premises. However, the Legislature has not thought it fit to put any such restrictions with regard to tenants in respect of commercial premises in this Act. The absence of any provision restricting the heritability of the tenancy in respect of the commercial premises only establishes that commercial tenancies notwithstanding their determination will devolve on the heirs in accordance with law of succession. 28 Thus, it is evident that on termination of contractual tenancy the legal heirs would inherit as per law of succession. However, what would be the nature of such possession was considered by the apex Court in H. C. Pandey vs. G. C. Paul, 1989 AIR 1470, Harjit Singh Vs. Padma Sehgal page 18 of 42 wherein it observed that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, it is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable thereof. The heirs thus, succeed to the tenancy as joint-tenants. 29 This concept was followed by High Court of Delhi in Mohd. Usman vs. (Mst.) Surayya Begum (1990) 2 RCR (Rent) and it was held as under:-
The Supreme Court in Gian Devi Anand's case (Supra) has no doubt observed that tenancy right which is inheritable devolves on the heirs under the ordinary law of succession. It only means that only those heirs who would be entitled to inherit the property of a deceased tenant under the ordinary law of succession would be entitled to inherit even the right of tenancy after the death of the tenant.
...
The incidence of the tenancy is the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable thereof. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. In the present case it appears that the respondent acted on behalf of the tenants that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice was served on the respondent was sufficient....."
30 Further, the case of Mohd. Usman went to Supreme Court in Mst. Surayya Begum vs. Mohd. Usman and others (1991) 3 SCC 114 wherein the Supreme Court held as under:-
"7. The learned advocates representing the decree holders in these two appeals have argued that when the tenancy rights devolve on the heirs of a tenant on his death, the incidence of Harjit Singh Vs. Padma Sehgal page 19 of 42 tenancy remains the same as earlier enjoyed by the original tenant and it is a single tenancy which devolves on them. There is no division of the premises or of the rent payable, and the position as between the landlord and the tenant continues unaltered......
8. So far as Section 19 of the Hindu Succession Act is concerned, when it directs that the heirs of a Hindu dying intestate shall take his property as tenants-in-common, it is dealing with the rights of the heirs inter se amongst them, and not with their relationship with a stranger having a superior or distinctly separate right therein. The relationship between the stranger and the heirs of a deceased tenant is not the subject matter of the section. Similar is the situation when the tenant is a Mohammedan. ....."
31 In Harish Tandon vs. Addl. District Magistrate, Allahabad, U.P. and Others (1995) 1 SCC 537 Apex Court has elucidated and explained this aspect as follows:-
"Take a case where the original tenant who was paying the rent dies leaving behind four sons. It need not be pointed out that after the death of the original tenant, his heirs must be paying the rent jointly through one of his sons. Now if there is a default as provided in clause (a) of sub-section (2) of Section 20 in respect of the payment of rent, each of the sons will take a stand that he has not committed such default and it is only the other sons who have failed to pay the rent. If the concept of heirs becoming independent tenants is to be introduced, there should be a provision under the Act to the effect that each of the heirs shall pay the proportionate rent and in default thereto such heir or heirs alone shall be liable to be evicted. There is no scope for such division of liability to pay the rent which was being paid by the original tenant, among the heirs as against the landlord what the heirs do inter se, is their concern. Similarly, so far as ground (b) of sub-section (2) of Section 20, which says that if the tenant has willfully caused or permitted to be caused substantial damage to the building, then the tenant shall be liable to be evicted; again, if one of the sons of the original deceased tenant willfully causes substantial damage to the building, the landlord cannot get possession of the premises from the heirs of the deceased tenant since the damage was not caused by all of them. Same will be the position in respect of clause (c) which is another ground for eviction, i.e., the tenant has without the permission in writing of the landlord made or permitted to be made, any such construction or structural alteration in the building which is likely to diminish its value or utility or to disfigure it.
Harjit Singh Vs. Padma Sehgal page 20 of 42 Even if the said ground is established by the landlord, he cannot get possession of the building in which construction or structural alterations have been made diminishing its value and utility, unless he establishes that all the heirs of the deceased tenant had done so. Clause (d) of sub-section (2) of Section 20 prescribes another ground for eviction - that if the tenant has without the consent in writing of the landlord, used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes; the landlord cannot get possession of the building unless he establishes the said ground individually against all the heirs. We are of the view that if it is held that after the death of the original tenant, each of his heirs becomes independent tenant, then as a corollary it has also to be held that after the death of the original tenant, the otherwise single tenancy stands split up into several tenancies and the landlord can get possession of the building only if he establishes one or the other ground mentioned in sub-section (2) of Section 20 against each of the heirs of original tenant. One of the well-settled rules of interpretation of statute is that it should be interpreted in a manner which does not lead to an absurd situation."
32 This also answers the challenge about the three daughters not having been made a party. In Mohd. Usman (supra) this aspect was explained by Delhi High Court as under:
"6. In the light of the above observations of the Supreme Court there can be no doubt that even if one of the legal heirs is not a party to proceedings for eviction filed by the landlord against the legal heirs of the original tenant, that heir who has been left out cannot later on come forward and agitate his or her right in the tenancy. In the present case, I find that Surayya Begum who claims to be living in the same disputed premises along with other legal heirs after the death of Khalil Raza has chosen to file her objections after the whole round of litigation is over and after the other legal heirs have lost right upto the Supreme Court. It is thus clear that these objections are filed only to defeat the decree and delay the execution of the decree. In my view, therefore, even if Surayya Begum was not a party to the previous litigation between the parties she has no right to object to the execution of the decree and the Additional Rent Controller ought to have dismissed the objections on that ground alone."
Harjit Singh Vs. Padma Sehgal page 21 of 42
33 This view was upheld by the Apex Court in Mst. Surayya
Begum (supra) as under:
"The main dispute between the parties, as it appears from their respective stands in the courts below, is whether the heirs of the original tenants who were parties to the proceeding, represented the objector heirs also. According to the decree holder in Miss Renu Sharma's case their interest was adequately represented by their mother and brothers and they are as much bound by the decree as the named judgment debtors."
34 This aspect has been further explained in detail in Suresh Kumar Kohli vs. Rakesh Jain & Another, in Civil Appeal No. 3996/2018 (arising out of SLP (C) No. 5489/2014 decided on 19.04.2018 as under:
"20. We are of the view that in the light of H.C. Pandey (supra), the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenant is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail." 35 The respondents having inherited the tenancy from their husband/father on his demise, all the four respondents stepped into his shoes and became liable to pay rent jointly to the Harjit Singh Vs. Padma Sehgal page 22 of 42 Appellant. It is established that they all have become the joint tenants implying unity of title as well as unity of possession. 36 It can thus be safely concluded that after the demise of original tenant the Respondents became the joint tenants which implies unity of title and possession and they did not become tenants in their individual capacity. They are entitled to same legislative protections which had been enjoyed by the original tenant. So being the case, impleadment of one and any statement so made even by one would make all the respondents liable for eviction.
2) Whether an eviction order can be made on the basis of a compromise between the parties in eviction petition?
37 The second aspect to be considered is whether a compromise can be effected in the eviction proceedings. 38 The Rent Act gives special protection to the tenants who can be evicted only if any of the grounds as specified under Section 14 are made out. This has been consistent view that until and unless the grounds of eviction as provided under the Rent Act is not made out, no eviction of the tenant can be ordered even if the parties have entered into compromise. In Bahadur Singh Vs. Muni Harjit Singh Vs. Padma Sehgal page 23 of 42 Subrat Dass [1969] 2 S.C.R. 432 it was held by the Supreme Court that an eviction order based on compromise is a nullity. Similar were the observations made in Kaushalaya Devi Vs. K.L. Bansal [1969] 2 S.C.R. 1048 wherein the eviction petition had been filed on the ground of bonafide requirement and default in payment of rent. The parties compromised and on their statement a decree was passed but the tenant failed to vacate the premises in terms of this compromise. It was held that the order was a nullity as it was made solely on the basis of compromise without indicating that any of the statutory grounds were made out. Similarly, in Firozi Lal Jan Vs. Man Mal A.T.R. 1970 S.C.794 the eviction petition filed on the ground of sub letting was allowed in terms of the compromise between the parties. The tenant failed to vacate the premises and an execution petition was filed. It was held that a decree for ejectment and possession can be made only if the Court concerned is satisfied that one or more grounds are made out and the question of nullity can be agitated even in the execution proceedings. (Similar observations have been made in Nagindas Ram Dass Vs. Dalpatram Ichharam AIR 1974 SC
471).
39 The above three cases were considered by the Apex Court in Harjit Singh Vs. Padma Sehgal page 24 of 42
the subsequent case of K.K.Chari v R. M. Sheshadri 1973 (1) SCC 761. It was pointed out that while the decision in Bahadur Singh's case (supra) was an authority for the proposition that a court ordering eviction has to satisfy itself that a statutory ground of eviction has been made out by a landlord; how exactly that satisfaction was to be expressed by the court or gathered from the materials, has not been laid down in that decision; that in Kaushalya Devi's case (supra) also the manner in which the court's satisfaction was to be expressed or gathered has not been dealt with; nor has the decision in Ferozi Lal's case (supra) given an indication as to how the satisfaction of a court could be expressed or gathered in a particular case. It was observed that "if a stage had been reached in a particular proceeding for a court to apply its mind regarding the existence of a statutory condition, it may be held that it was so satisfied about the plea of the landlord. Again, from other material on record it can be inferred that the court was so satisfied." It was held in the particular circumstances of the case that as the tenant had withdrawn his defence and submitted to a decree for eviction unconditionally, he had accepted the claim of the landlord that he required the premises bona fide for his own occupation; that he had accepted the position that the Harjit Singh Vs. Padma Sehgal page 25 of 42 landlord has made out the statutory requirement entitling him to ask for possession of the premises; that by this unconditional withdrawal of the defence regarding the statutory condition pleaded by the landlord, and the compromise following it that was accepted by the court, the tenant had accepted the plea of the landlord,; and it was futile to hold that the Rent Controller must again embark upon an enquiry regarding the requirement of the landlord being bona fide and adjudicate upon the same. 40 It was also observed that the true position appears to be that an order of eviction based on consent of the parties is not necessarily void if the jurisdictional fact, viz. the existence of one or more of the conditions mentioned in Rent Act were shown to have existed when the court made the order; that the satisfaction of the court which is no doubt a pre-requisite for the order of eviction, need not be by the manifestation borne out by a judicial finding; and that if at some stage the court was called upon to apply its mind to the question and there was sufficient material before it before the parties invited it to pass an order in terms of their agreement, it is possible to postulate that the court was satisfied about the grounds on which the order of eviction was based. If the tenant in fact admits that the landlord is entitled to Harjit Singh Vs. Padma Sehgal page 26 of 42 possession on one or other of the statutory grounds mentioned in the Act, it is open to the court to act on that admission and make an order for possession in favour of the landlord without further enquiry. On these grounds the conclusion was drawn that the facts in the case satisfied these tests and therefore, the eviction order could be validly made.
41 Under Order 23, Rule 3 of the Code of Civil Procedure all matters to be decided in a suit can be settled by means of a compromise. The application of Code of Civil Procedure is not excluded in proceedings before the Rent Controller and in any case there is no reason why the principle underlying Order 23, Rule 3 should not apply to those proceedings. It is not clear why a tenant should be treated as a minor or as an imbecile. In the case of a minor the Order 32, Rule 7 of the Code of Civil Procedure specifically lays down that the court should be satisfied before it sanctions a compromise binding the minor. There is no such provision in the Rent Control Act. Therefore, it should be held that there is no objection to a compromise consenting to an order of eviction in Rent Control proceedings.
42 Of course, a compromise can be valid only if it is in accordance with the Act, i.e. only if the landlord has asked for Harjit Singh Vs. Padma Sehgal page 27 of 42 possession of the building on one of the grounds laid down in the Act. For instance, a landlord merely on the ground that he is the owner of the building cannot come to the Rent Controller and ask for possession of the property and the Rent Controller cannot pass a valid order merely because the tenant submits to an order of eviction. Bahadur Singh's case is an instance in point. In that case the landlord did not even apply for eviction. But where the landlord specifically asks for possession on any one of the grounds on the basis of which he is entitled to ask for possession under the provisions of the Act there will be no objection to the tenant either submitting to an order of eviction or entering into a compromise submitting to an order of eviction. There is no magic in the words 'if the Controller is satisfied' in Section 10 (3) (e). The section would have been as effective even if those words were not there and the section had read as follows "If the claim of the landlord is bona fide the Controller shall make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller; otherwise he shall make an order rejecting the application." 43 It was thus, concluded by Apex court in K.K.Charis case(supra) that if the compromise decree is based on the Harjit Singh Vs. Padma Sehgal page 28 of 42 grounds on which the landlord could claim a decree for eviction under section 13 of the East Punjab Urban Rent Restriction Act, then it is within the jurisdiction and competence of the Rent Controller to pass such a decree with a default clause; it is similarly competent for the civil court to execute such a decree when default has occurred.
44 It was further held that "no doubt a reading of the order of the court, dated March 31, 1969, isolated from all other circumstances, may give the impression that the decree for eviction is passed because of the compromise between the parties. It is no doubt true that the order on the face of it does not show that the court has expressed its satisfaction that the requirement of the landlord is bona fide. If the court had expressed its satisfaction in the order itself, that will conclude the matter. That the court was so satisfied can also be considered from the point of view whether a stage had been reached in the proceedings for the court to apply its mind to the relevant question? Other materials on record can also be taken into account to find out if the court was so satisfied." 45 In M.S.Mohammed Arif vs M.Devadoss C.R.P.(NPD) No.4752 of 2012decided on 8 April, 2013 the Madras High Court it was explained that in order to get a decree or order for eviction Harjit Singh Vs. Padma Sehgal page 29 of 42 against a tenant whose tenancy is governed by any Rent Restric- tion or Eviction Control Act the suitor must make out a case for eviction in accordance with the provisions of the Act. When the suit is contested the issue goes to trial. The Court passes a decree for eviction only if it is satisfied on evidence that a ground for passing such a decree in accordance with the requirement of the Statute has been established. Even when the trial proceeds ex-parte, this is so. If, however, parties choose to enter into a compromise due to any reason such as to avoid the risk of protracted litigating ex- penses, it is open to them to do so. The Court can pass a decree on the basis of the compromise. In such a situation the only thing to be seen is whether the compromise is in violation of the require- ment of the law. In other words, parties cannot be permitted to have a tenant's eviction merely by agreement without anything more. The compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord, in the circumstances is entitled to have such a decree un- der the law.
46 It was further observed that it is too late in the day to contend that the provisions of Order 23, Rule 3 of the Code of Civil Harjit Singh Vs. Padma Sehgal page 30 of 42 Procedure cannot apply to eviction suits governed by the special statutes. Undoubtedly, a compromise of such suit is permissible under the said provision of law. The protection of the tenant is inherent in the language of Order 23, Rule 3 when it says, "Where it is proved to the satisfaction of the Court that a suit has been adjusted by any lawful agreement or compromise.... the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit".
47 If the agreement or compromise for the eviction of the tenant is found, on the facts of a particular case, to be in violation of a particular Rent Restriction or Control Act, the Court would refuse to record the compromise as it will not be a lawful agreement. If on the other hand, the Court is satisfied on consideration of the terms of the compromise and, if necessary, by considering them in the context of the pleadings and other materials in the case, that the agreement is lawful, as in any other suit, so in an eviction suit the Court is bound to record the compromise and pass a decree in accordance therewith. Passing a decree for eviction on adjudication of the requisite facts on or their admission in a compromise, either express or implied, is not Harjit Singh Vs. Padma Sehgal page 31 of 42 different.
48 All these judgments were considered by the Apex Court in M/s Alagu Pharmacy & Ors. Vs. N. Magudeswaran (2018) 8 SCC 311 and it was concluded that considering the provisions of Rent Act in the light of public policy which permeates the entire scheme and structure of the Act, there is no escape from the conclusion that the Rent Court is not competent to pass a decree for possession either invitum or with the consent of the parties on a ground which is de hors the act or ultra virus the Act. The existence of one of the statutory ground is a sine qua non to the exercise of the jurisdiction of the Rent Court. Even the consent of the parties cannot confer such jurisdiction on the Rent Court to do something which according to the legislative mandate it cannot do. The mere fact that order 23 (3) is applicable to the proceedings in a petition under Rent Act does not remove that fetter on the Rent act or empower it to make a decree of eviction de hors the statute. It was further observed as under:
"From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape Harjit Singh Vs. Padma Sehgal page 32 of 42 either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions is fully binding on the party that makes them and constitutes a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence are by themselves, not conclusive. They can be shown to be wrong."
49 Thus, from the above discussion it can be safely concluded that an eviction order can be made on the basis of compromise statement, but there should be sufficient material on the record to show that there are valid grounds for eviction. 50 In the present case the perusal of the record shows that vide order dated 13.02.2004 and 02.01.2008 it had been observed by the Court that the ground of eviction under Section 14(1) (k) read with Section 14(11) was made out but only a formal order of eviction needs to be made. The record thus, shows that there existed a valid ground for passing the eviction order and the Rent Controller was well within his jurisdiction to record the compromise between the parties and the eviction order so made on the basis of compromise between the parties would be legal and valid. However, the respondent/tenant has to be a person who is legally Harjit Singh Vs. Padma Sehgal page 33 of 42 impleaded as a party. In the present case, Smt. Padma Sehgal wife of deceased husband Sh. V.P. Sehgal though was a LR and competent to bind the other joint tenants by her statement, but was never formally brought on record and was not a party to the eviction petition. The question thus arises whether Smt. Padma Sehgal's statement could be made a basis of eviction order in the eviction petition that stood abated.
3)What is the consequence of non-impleadment of legal heirs of the tenant in the eviction proceedings?
51 Order 22 Rule 4 provides that on the demise of the respondent/ defendant, the legal heirs are required to be impleaded. In the present case, the record reveals that though on 12.01.2012 the respondent's Counsel had informed about the demise of respondent and the plaintiff was directed to take appropriate steps, no application whatsoever was ever filed by the petitioner for impleadment of legal heirs under Order 22 Rule 4 C.P.C.
52 The Supreme Court in Madan Naik Vs. Hansubala Devi 1983 Law Suit (SC) 114 had observed that Order 22 Rule 11 of CPC read with Order 22 Rule 4 makes it obligatory to seek Harjit Singh Vs. Padma Sehgal page 34 of 42 substitution of the legal heirs and legal representatives of the deceased/ respondent if the right to suit survives. Such substitution has to be sought within the time prescribed by law of limitation. If no such substitution is sought, the suit/ appeal shall abate. Sub Rule 9 Order 22 enables a party who is under an obligation to seek substitution to apply for an order to set aside the abatement and if it is proved that he was prevented by sufficient cause from continuing the suit, the Court shall set aside the abatement. In case the Court is not satisfied that the party seeking setting aside of abatement was prevented by sufficient cause, the Court may decline to set aside the abatement and the suit shall stand disposed of as abated. It was further observed that where no order for abatement is made as envisaged under various rules of Order 22, the abatement takes placed on its own force by passage of time. In fact, the specific order is necessary under Order 22 Rule 9 CPC for setting aside the abatement. 53 Likewise, in Perumon Bhagvathy Devaswom, Perinadu village Vs. Bhargavi Amma (Dead) By Lrs & Ors. 2008 (4) Civil Court Cases 503 (SC) similar question came up for consideration. A reference was made to Sub Rule 9 of Order 22 which provides that where no application is made to cause the legal representative Harjit Singh Vs. Padma Sehgal page 35 of 42 of the deceased respondent to be made a party, the appeal shall abate as against the deceased respondent. The limitation for getting an order of abatement set aside is 60 days from the date of abatement as per Article 121 of the Limitation Act. It was held that having regard to the wordings of Rule 4 it is clear that when a respondent dies and an application for bringing the LRs is not made, the abatement shall take place on the expiry of prescribed period of 90 days by operation of law. Abatement is not dependent upon any judicial adjudication or declaration of such abatement by a judicial order; it occurs by operation of law. But nevertheless the abatement requires judicial cognizance to put an end to a case as having abated and therefore, the suit shall not close itself automatically on abatement and till the suit is alive, an application for impleadment may be filed along with an application under Section 5 of Limitation Act for condonation of delay. 54 The law is thus clearly elucidated that the abatement takes place on expiry of sixty days from the death of a party if no application of impleadment of legal heirs is made. Further, the suit does not automatically come to an end on abatement but a formal order of closure is mandatory. Till such time the order of abatement is not made, the applicant may move an application for substitution Harjit Singh Vs. Padma Sehgal page 36 of 42 of legal heirs along with an application for condonation of delay. The necessary corollary that follows is that if the legal heirs are not brought on record, then any proceedings conducted would be against a dead person and any orders so made would be a nullity being against a dead person.
55 In the present case, it is clearly brought forth that the Counsel for the respondent had duly informed about the demise of Sh. Ved Prakash Sehgal despite which no application for impleadement of legal heirs had been made till the culmination of the eviction petition by order dated 13.04.2017 by which the compromise was recorded. The matter stood abated before the Ld. ARC and no compromise order could have been made against the dead person. Even though Padma Sehgal, wife/ legal heir appeared and made a compromise statement but abatement having not been set aside and legal heirs not impleaded formally any statement made by her was without any legal sanctity and was non est. Since, the legal heirs were not brought on record and the proceedings stood abated, the eviction order even though based on a compromise was in a proceeding which stood abated and thus, a nullity of which there could be no execution.
4) Whether the illegality of an order can be
challenged in execution proceedings?
Harjit Singh Vs. Padma Sehgal page 37 of 42
56 Learned counsel for the respondents submits that it is well
settled that the executing court can neither go behind the decree nor would act as an appellate court while executing the decree. A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere er- ror in exercise of jurisdiction does not vitiate the legality and valid- ity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation.
57 The Hon'ble Supreme Court in Kiran Singh and others vs. Chaman Paswan and others, AIR 1954 SC 340 held that it is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral pro- ceedings. A defect of jurisdiction, whether it is pecuniary or territo- rial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties.
Harjit Singh Vs. Padma Sehgal page 38 of 42
58 In United India Insurance Company Limited vs. Rajendra
Singh and others, (2000) 3 SCC 581 reference was made to S.P. Chengalvaraya Naidu v. Jagannath[(1994) 1 SCC 1] where the the two-Judge Bench of the Apex Court held:
" ''Fraud avoids all judicial acts, ecclesiastical or temporal' ob- served Chief Justice Edward Coke of England about three cen- turies ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree -- by the first court or by the highest court -- has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings."
59 In Indian Bank v. Satyam Fibres (India) (P) Ltd. [(1996) 5 SCC 550] two-Judge Bench concluded that since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an or- der obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order."
60 In C. Gangacharan Vs. C. Narayanan, AIR 2000 SC 589 Supreme Court held that it is now well settled that the executing court cannot go behind the decree of a court of competent jurisdic- tion except when the decree is void ab initio or without jurisdiction.
Harjit Singh Vs. Padma Sehgal page 39 of 42 Again in Hira Lal Patni v. Kali Nath [AIR 1962 SC 199] it was held:
"The validity of a decree can be challenged in execution pro- ceedings only on the ground that the court which passed the de- cree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of render- ing the court entirely lacking in jurisdiction in respect of the sub- ject-matter of the suit or over the parties to it."
61 Similar observations of the Hon'ble Supreme Court were ren- dered in Brakewel Automotive Components (India) Pvt. Ltd. vs. P.R. Selvam Alagappan, AIR 2017 SC 1577 :
"19. It is no longer res integra that an executing court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardising the rights of the parties thereun- der. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is ren- dered non est and is thus unexecutable. An erroneous decree cannot be equalled with one which is a nullity. There are no in- tervening developments as well to render the decree unexe- cutable.
62 The Apex Court in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman AIR 1970 SC 1475 enunciated that only a decree which is a nullity can be the subject-matter of objection under Sec- tion 47 of the Code and not one which is erroneous either in law or on facts. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a Harjit Singh Vs. Padma Sehgal page 40 of 42 person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. 63 The proposition of law has again been reiterated by the Supreme Court in Sneh Lata Goel Appellant(S) Versus Push- plata & Ors. in Civil Appeal No. 116 Of 2019 (@Slp(C) No(S). 26932/2018 decided on January 7,2019.
64 It is thus, established proposition of law that the executing court can go behind a decree which is claimed to be a nullity. Conclusion 65 In view of the above discussion, it is concluded that Smt. Padma Sehgal though the legal heir of Late Sh. V.P. Sehgal having inherited the tenancy jointly with other legal heirs and competent to represent all other legal heirs, was never formally impleaded as a respondent and at the time when she made a statement of compromise before the Rent Court, the eviction petition stood abated. The compromise and the eviction order that followed is a nullity, being against a dead person. The Executing Court was well within its jurisdiction to consider the legality of an eviction order which is a nullity in an Execution petition and the objections have been rightly allowed by the Ld. ARC. There is no illegality or Harjit Singh Vs. Padma Sehgal page 41 of 42 infirmity in the impugned order. The appeal is, therefore, dismissed.
66 A copy of this order along with Trial Court Record be sent
back to the Ld. Trial Court. Digitally
signed by
NEENA
NEENA
Appeal file be consigned to record room. BANSAL BANSAL
KRISHNA
Date:
KRISHNA 2021.01.05
17:02:44
+0530
ANNOUNCED in the open Court (Neena Bansal Krishna)
today on 4th day of January, 2021 Principal District & Sessions Judge/ Rent Control Tribunal South East, Saket Courts, New Delhi.
Harjit Singh Vs. Padma Sehgal page 42 of 42