Delhi High Court
Kerar Nath And Anr. vs Mohani Devi Etc. on 9 October, 1973
JUDGMENT P.N. Khanna, J.
(1) Th main question that has arisen in th se two Second Appeals from Orders Nos. 6 and 54 of 1968 is: Can the proceeding under the Delhi Rent Control Act, 1958, herein called 'the 1958 Act', initiated for the viction of a tenant, after terminating his contractual tenancy, be continued after his death; and viction order passed against his l gal repr sentatives?
(2) Shri Kedar Nath, the predecessor-in-interest of the pr sent appellants in both appeals, filed two separate viction applications, under section 14 of the 1958 Act, against his tenants, who held two separate promises on lease under him. The contractual tenancies in both cases, had been terminated earlier, by service of notices to quit. In one proceeding, which has given rise to Sao 6 of 1968, the tenant was Naubat Ram, and the grounds on which viction was sought were non-payment of arrears of rent, after service of notice of demand referred to in clause (a) of the proviso to section 14(1) of the 1958 Act, subletting without landiord's consent [clause (b) of the said proviso] and misuse of the premises [clause (c) of the proviso]. In the other which hag given rise to Sao 54 of 1968, the tenants were Prabhu Dayal and Mamman Lai, and th grounds for eviction besides the aforesaid three grounds, were non-residence of the tenant in the premises [clause (d) of the proviso] and substantial damage to the premises [clause (j) of the proviso]. The tenants in both the premises died while proceedings were pending before the Additional Controller. Their legal representatives, who did not dispute their character as such, were brought on record and amended petitions were filed. In proceeding against Prabhu Dayal and Mamman Lai, (SAO 54 of 1968), besides four legal representatives of the deceased, three sub-tenants were aiso imp leaded as respondents Nos. 5 to 7.
(3) In the amended petitions, it was further contended that the legal representatives of the deceased tenants had not inherited the tenancy rights, because the tenancies were "statutory" and personal to the tenants in nature; and the legal representatives had, therefore, no right to remain in possession. The Additional Controller was of the view that as the relationship of landiord and tenant was no longer alleged to subsist between the parties, the petitions were not maintainable under the 1958 Act. ??, therefore, dismissed both the petitions.
(4) The Rent Control Tribunal concurred with his views, further holding that the right to sue did not survive and dismissed the appeals. It was against the orders of the Tribunal that these two second appeals were filed in this court by Shri Kedar Nath, the land lord. While the appeals were pending, Kedar Nath died on April 10. 1971. On August 20, 1971 two applications were filed by his legal representatives in each of the two appeals fo have the abatement of appeals set aside, and to be imp leaded in his place and for condensation of delay in filing th applications. S. N. Shanker J. before whom these applications came up, referred both appeals to a larger bench, as he found divergence of views of this court on the question of the applicability of the Limitation Act, 1963 to such applications. The matter came up before a Bench consisting of S. N. Andiey C. J. and T. P. S. Chawla J., who allowed the applications and brought the legal representatives, hereinafter collectively referred to as "the landiord", on record. On merits they noticed that similar quesltiens had been referred for decision to a -larger Bench in another appeal. They, therefore, directed these two appeals to be placed before the same Bench, which was to hear the other appeal. The matters came up before a Division Bench, consisting of S. N. Andiey C.J., and S. N. Shankar J. They noticed that in one of the appeals, the Sub-tenants were parties to th viction p tition, along with th l gal repr sentatives of th deceased tenants. Reliance was placed on behalf of th appellant landlord on South Asia Industries Private Limited v. Sarup Singh and others . lt was contended that some of th observations in th Full Bench d cision of this court dated April 5, 1973 in ?. G. Malhotra v. Vijay Kumar, Esa 2 of 1971, were irreconcilable with th majority opinion in th said Jadgment of th Sapreme Court. As th said judgment had neither been cited nor considered by th Full Bench in K. G. Mathotra's case, th Division Bench directed th se two appeals to be placed before th same Full Bench. Th appeals then came up beforc th said Full Bench consisting of Andley C.J., S. N. Shankar and V. S. Deshpande JJ. lt was urged on behalf of th appellants that th decision in K. G. Malhotra's case required reconsideration in View of th Supr me Court jadgment in th case of South Asia Industries Private Limited. lt was for this reason that th se appeals have been placed before this larger Bench.
(5) Lt may be pointed out that in th case of K. G. Mathotra, (supra) th viction had been claimed under th Delhi and Ajmer Rent Control Act, 1952. But the said Act had been repealed. As most of th cases coming up before this court were being heard under th 1958 Act, it was considered useful by th Full Bench to examine th questions involved in relation to th 1958 Act also. lt was under these circumstance that provisions of th 1958 Act ware 'examined and opinion 'express d in relation there.
(6) Mr. T. C. B. M. Lal, th learned counsel for th appellant landlord has raised two main contentions before us: (L)that th duty of th tenant on th d termination of th lease to put th Lesser into possession of th property devolves, on th tenant's death, on his L gal repr sentatives and th landlord's right to get back possession is not affected ? any way by th death of th tenant. Th right to sue on th basis of th tenancy which has been determin d, survives in favor of th landlord against th tenant's l gal repr sentatives; and (2) that th jurisdiction of th Controller to entertain, proceed with and finally dispose of th proceedings, which were initiated before him by th landlord is not affected by th death of th tenant during its pendency.
(7) According to him, th conclusions drawn in K. G. Malhotra's case, which were relied upon by th l gal repr sentatives of th deceased tenants, agaiast th landiord's daim, both before th Division Bench and the Full Bench and now before us, require reconsideration as they came in conflict with the majority view expressed by the Supreme Court in the case of South Asia industries (supra). In the latter case, th Supre me Court was of th view that it was not the tenant alone against whom an order could be passed by th Control1er for recovery of possession of th promises. Orders could be passed against "ail persons in occupation". The judgment of the Supreme Court, therefore, indicated that there was nothing to prevent an order for recovery of possession being passed against th legal representatives. We will examine this judgment in greater d tail a little later. We would first deal with th judgment of th Full Bench in K. G. Malhotra's case (supra), which according to Mr. H. K. L. Subharwai, th leamed counsel appearing as amices curiae, on behaif of the respondents, in no way cornes in conflict with th views expressed by th Supr me Court and lays down th correct law.
(8) V. S. Deshpande J., who spoke for the Full Bench in that case was of th view that if viction was claimed in a suit in any ordinary court under the Delhi and Ajmer Rent Control Act, 1952, then on th death of the tenant, "th suit, though friable by the same Court, would change from a suit based on tenancy to a suit based on title But on the death of a statutory tenant, an "application for eviction under section 14 of th 1958 Act would not proceed further". The landiord would h ve to file a separate suit based on title in a court having g n ral jurisdiction, as th l gal representatives do not inherit the tenancy or th statutory protection. Th leamed Judge, then considered the question as to how an applicatiorf under section 14(1) of the1958 Act, was to proceed on th death of th tenant and concluded : "THElandiord may not apply within th prescribed time to bring the legal repr sentatives on record. In such a case, th application abates as provided by order 22. But, if th landiord makes an application to bring th l gal representatives on the record, they will have to be brought on th record as th right to sue survives.......... ......if the legal repr sentatives plead an independent title, then aiso the Controller would h ve to dismiss the petition for lack of jurisdiction to inqufr iirio the independent title. On th other hand, if th l gal representatives admit that the deceased tenant was a statutory tenant and have no defense to make except such defense as was personal to the deceased tenant, then though the general right to sue survives to the landiord to pursue his remedy on th basis of title in a civil court, the right pursue the application under th 1958 Act does not survive and th Controller has to terminate the proceedings............ This does not mean that a subs quent suit on th same cause of action could not be filed, as would happen after the abatement of a suit under the Civil Procedure Code. On the contrary, the landiord would have a right to file a suit on the basis of title predsely becausc of the death of the statutory tenant during th pendency of the proceeding before the Controller. We would not, therefore, call the termination of the proceeding before the Controller as an abatement. The Controller may, therefore, dismiss the application for eviction on the ground that he has ceased to possess the Jurisdiction to entertain it on the death of the statutory tenant. Such an order would have to be passed in the presence of the proposed legal representatives. But, it would have to be passed after bringing them on record."
(9) We must say with profound respect that the approach of the Full Bench to the question before it was not sound and we have not been able to persuade ourselves to agr e with its conclusions.
(10) When a lease is granted by the landiord to th tenant, which in tenns of section 105 of th Transfer of Property Act, is a transfer of a right to enjoy immovable property, possession of th property is delivered to the latter. The landiord by virtue of section 108(c) of the Transfer of Property Act, in the absence of a contract or local usage to the contrary, is deemed to have contracted with the tenant that if the latter pays the rent reserved by the lease and performe the contracts binding on him, he can hold the property during the term of th lease, without interruption. Thebenefit of such contract, according to th said section, is annexed to and goes with th tenant's interest as such and can be enforced by every person in whom that interest in whole or in part from time to time vests. On th d termination of the lease, whether on th expiry of a notice to quit or on the happening of any one of th other events mentioned in section Iii of the Transfer of Property Act, the tenant loses the right to enjoy the property. The tenant, then, if he continues in possession, is just holding over and is bound under clause (q) of section 108 of the Transfer of Property Act to put th Lesser into possession of the roperty. The landiord becomes entitled to recover possession and if such a tenant resists, to seek th assistance of th court for that purpose.
(11) It is at dlis stage tbat the 1958 Act steps in and by its section 50 provides that no (ava court shafl eatertain any suit or proceeding in so far as i( relates, inter o , to eviction of any tenant from any premises or to any other Baatter wluch the ControHer is empowered by or under that Aot t6 decide. This, however, does aot prevent a civil court from eatertaining ?n? suit or proceediag for the decision of any question of tide to any premises {sub-section (4) of section 50] The Jurnsdictioa, thus t?k?n away from th civ court, is vested in tbe Controller, but oniy to a limited extent as presoribed. The Controller ie an authority, which has been created by die 1958 Act. Its section 35 authorises th Central Govemment to appoint Controllers aod Additional Controllers "to -exercise the ipowers conferred, and perform th duties imposed," on them .by or under th said Act. Varions sections of die Act then give him diverse powers. To illustrate, section 36 gives him power, inter alla, to summon and enforce attend. ance of any person and examine him -on oath; section 37 enables him to follow as far as may be, th .practice and proc dure of a court of Small Causes; section 40 gives him power to correct cl rical or arithmetical of accidentai slips or omissions in any order; section 42 makes his order or an order passed in appeal executable as if it was a decree of a civil court, and section 41 confers on him certain magieterial powers. So far as eviction is concemed, the power is given to the Controll r by th proviso to sub-section (l) of section 14 of the Act. The relevant part of section 14(1) reads as follows : "14.(l) Notwithstanding.anything to the contrary contained in any other law or conteact, ?? order or deoree for the recovery of possession of any premises shall ?e made by any court or Controller in f vour of the dandlord against a tenant; Provided that the Controller may, on an application made te him in the prescribed manner, make an order for the recovery to the premises on one or more of the following grounds oniy, namely;
(12) Then are enumerated the said grounds in clauses (a) to Cl). The Controller, thus, can make an order for th recovry of the premises omiy under the given cireumstances, that is, only if eme or more of the groonds spedfied 'in clauses (a) to (l) of the proviso exist. ?? gets Junsdiction which according to th Supr me Court in Officiai Trustees, West fengal & Others v. Sachindra Nath Chatterie & another., , includes the authority to hear and decide the particular controversy that has arisen between the parties, when "an application (is) made to him in the prescribed manner" This application must disclose one or more grounds from out of those given in the said clauses (a) to (l), which if proved, will enable him to pass orders which he is empowered to pass. The Controller will have jurisdiction. on the basis of the petitioners allegations, to entertain his application, to ascertain the essential points involved in the case, to determine if the said pre-conditions exist and ultimatcly to pronounce upon them. If the Controller finds that any of the circumstances mentioned in clauses (a) to (l) of the said proviso exist, he will exercise the powers specifically vested in him of making an order for the recovery of the premises. If, on the other hand, he finds that those circumstances do not exist, then still exercising jurisdiction in the matter, he will decide by dismissing the application on the ground that he has no power to make the order which the landlord requested him to make. The jurisdiction is exercised by the Controller, on the basis of the allegations in the petition, and not on what the respondent may say in defense; while an order is made by him oniy if the making of it is within the limits of the powers, conferred on him.
(13) The above legal position can be viewed from another angle. Section 14(1) creates a bar to the passing of an order or decree for the recovery of possession of the premises, notwithstanding anything to the confrary contained in any other law or contract. The proviso to the sub-section then lists certain circumstances, in clauses (a) to (l) in the nature of exceptions, on the existence of which the said bar is lifted, to enable the passing of an order for recovery of the premises by The Controller, on whom power has specifically been conferred for the purpose. The tenant continues to hold possession of the premises by virtue of the protection given to him by section 14(1), if he is not covered by any of the said clauses (a) to (l) of the proviso. Every application under section 14, therefore, pre-supposes that (a) the person against whom it is made, i.e. the respondent, though once a tenant is no longer entitled to the tenancy rights or the right to enjoy the premises under the provisions of the Transfer ol Property Act, and (b) the respondent no longer is entitled to the statutory protection, which was available to him under the first part of section 14(1).
(14) Coming to The facts of the present case, the landiord alleged that contractual tenancies had been terminated, and that the grounds mentioned in the proviso to section 14(1) of the 1958 Act were available to him as the tenants in both cases had committed more than one specified defaults. The bar created by section 14(1) against the passing of an order for possession of the premises, which was a personal protection to the tenant, was alleged to have been lifted. During the pendency of the said applications, before the Controller, the tenants died. The possession of the promises, which, according to the landiord's allegations, was unprotected in the hands of the tenants fell into the hands of his legal representatives. They did not enter into possession as trespassers to begin wlth, but happened to be the legal representatives of the deccased and came into possession as such, representing the estate of the deceased. By virtue of their so coming into possession of the premises, the obligation of the tenants to hand over possession of the promises back to the landiord aiso passed over to them.
(15) A question was raised at the Bar, as to whether the respondents in Sao 6 of 1968 and respondents Nos. l to 4 in Sao 54 of 1968 ??n be said to be the legal representatives of the deceased tenants for the purposcs of the applications under section 14 of the 1958 Act, as they have not inherited the statutory protection which the tenants enjoyed. lt is true that the statutory protection from eviction provided by the first part of section 14(1) is personal to the tenant. The heirs of the deceased tenant, according to the 1958 Act, as it stands today, do not acquire the status of tenants. According to section 2(1) of the 1958 Act, uniess the context otherwise requires, "tenant means any person by whom or on whose accov.nt or behaif the rent of any premises is or but for a special contract would be payable and includes a sub-tenant and aiso any person continuing in possession after the termination of his tenancy but shall not include any person against whom any order or decree for eviction has been made". The rent is not payable, as such, by the legal representatives on their own behaif and they are, therefore, not the tenants; nor are they entitled under the provisions of 1958 Act to the protection from eviction which the deceased enjoyed. But, that does not imply that they are not legal representatives of the deccased tenant even for the purpose of proceeding under section 14(1) of the 1958 Act.
(16) The expression legal representative has acquired in law, a definite connotation, which is embodied in its definition in section 2(11) of the Code of Civil Procedure. It means, according to that definition, a person, who in law, represents the estate of the deceased person and includes any person who intermeddies with that estate and where a person sues or is sued in a representative character, is the person on whom the estate devolves on the death of the party so suing or sued. Although, the Code as such is not applicable to the proceedings before the Controller, yet he follows the practice and procedure of a court of Small Causes as far as may be and on other he is guided by its provisions. Accordingly, any person who reprcsents the deccased after his death and in whose hands the propcrty or estate of the deceased falls, or who daims or is intcrested in that estate as a representative of the deceased, will be the legal representative of the deceased. Normally, this estate will corne into the hands of a legatee or an heir of the deceased, and he will, therefore, be the legal representative of the deceased in respect of the property of the deceased, He is the person, who in law would represent the estate. The status of legal representative devolves on the person concemed by reason of the death of the person, whose estate he hoids and represents. The term intermeddier likewise denotes a person who intermeddies with the estate of the deceased in such a way as to indicate an intention or an ostensible intention in him to exercise the functions of a representative of the deceased. trespasser or any other person who may daim title in hirnself adverscly to the estate of the deceased, accordingly, would not be his legal representative. For, he does not get any estate of the deceased by reason of his death. Nor can he be said to represent the estate of the deceased. He would then be sserting his own daim. The 1958 Act does not provide anything contrary to this concept of a legal representative.
(17) The respondents concemed, in the present appeals, who are wives and chiidren of the deceased tenants, and have cornes into possession of' the promises in dispute, whether by thernselves or through the subtenants inducted by the deccased tenants, have not acquired possession by any overt act or under any independent title. They can be said to have just corne into possession of the promises, whatever its nature may be (whether unprotected or otherwise). Possession just passed into their hands on the death of the tenants and they claimed to have the right to continue in possession as the heirs or successors of the deceased tenants. They, therefore, are holding possession of the promises as representing the estate of the deceased tenants and, are, therefore, legal representatives of the deceased tenants. We are, accordingly, unable to agree with V. S. Deshpande J., when, speaking for the Full Bench in K. G. Malhotra's case, he observed: ". . . .under the 1958 Act oniy a person inheriting the tenancy and/or the statutory protection of the deceased tenant would be regarded as legal representative"; and when he gave expression to similar views in Nathu Khan v. Mohd. Ismail, . In fact there would be no question of any person inheriting the tenancy because there was no tenancy in existence, which could be inherited in a case like this. Even the deceased were ex-tenants and did not have tenancy rights or any other interest in the promises, their contractual tenancies, according to the landiord's allegations, having been terminated earlier. There would aiso bc no question of inheriting The statutory protection, as there was no such protection availabic cvcn to the deceased. According to the allegations of The landiord. niore than one grouiid eut of the grounds referred to in clauses (a) to (l) of the proviso to section 14(1) were available to hiin and the deceased tenants had ceased to enjoy the statutory protection. Ail that fell into the hands of the legal representatives' from the decea.scd tenants on their death was the possession of The premiscs, whicn had to be made over to the landiord. lt is this possession, still existing in their hands, which the landiord daims: and it is for this purpose that they represent the estate of the deceased and are accountable to the landiord. They are thus in every sense of the expression legal representatives of the deceased. In the present case, the respondents concerned, in any case. have not challenged their status. as legal representatives of The deceased tenants.
(18) The question next ariscs whcther the right to suc on the basis of The application under section 14 of the 1958 Act. which was pending before the Controller at the time of the tcnant's dcath. survives in favor of the landiord. against The legal representatives of thc deceased. The answcr is clearly in The affirmative. The right to sue, after ail, is nothing but the right to seek relief (sec lhrallimhhoy V. State o] Cajarat, ) . A petitioner may daim by way of relief recovery of moncy or property from the respondent. On the latters' death, the petitioner lias the right to follow The subject matter of The litigation in The hands of the legal representatives. The generai ruie is that ail rights of actions and demands whatever existing in favor or against a person at the time of his death which arc not personal to the deceased, would survive to or against his legal representatives. Section 306 of The Indiaii Succession Act is more or less to this effect and spccifying certain exceptions provides that causes of action for defamation. assault as defined in The Indian Penal Code, or other personal injuries not causing the dcath of the party and in cases where after the death of the party the relief sought could not be enjoycd or granting it would be nugatory, do not survive. Section 37 of the Contract Act lias aiso the same effoct and lays down that ''promises bind The representatives of the promisors in case of the death of such promisors belorc performance, uniess a contrary intention appears from the contract", According to Ruie 23 of The Delhi Rent Control Ruies, 1959, the Controller and the Rent Control Tribunal arc, as far as possible, to bc guided by the provisions of the Code of Civil Procedure, on ail questions relating to procedure not specifically provided by the Act and the Ruies. Section 146 of the Code of Civil Procedure lays down that "where any proceeding may be takcn or application made by or against any person then the proceeding may bc taken or application may be made by or against any person claiming under him." The Supr me Court in Girajanan- dini Devi and others v. Bijendra Narain Chondhary, observed: ''the maxim 'actio personalis moritur ciim persoila' a personal action dies with a person, has a limited application, lt oper tes in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be cnjoycd oi granting it would be nugatory. An action for account is not an action for demages ex delicto and does not fall within the enumeratcd classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory. Death of the person liable to render an account for proper y received by him does not, therefore, affect the liability on his estate."
(19) The applications for recovery of possession of the premises in dispute, ont of which the present appeals have arisen, were not actions for demages ex-delicto. They did not fall within the enumerated classes, nor were they such that the relief claimed was personal to the deeeased tenants and could not be enjoyed after their death oi; granting it would be nugatory- Such would have been the case, if the relief claimed had been in respect of an obligation of the deeeased, which was personal to him as would be the obligation of a painter to paint a picture, for example. The right of the deeeased tenants to statutory protection from eviction from the premises was personal to them; but their obligation to deliver it hack to the landiord on the termination of the statutory protection, was not personal. The daim of the landiord for possession of the premises was not extinguished with the death of the tenants. The premises are still in existance and their possession is in the hands of the legal representatives, who can bc directed to hand it over to the landiord. The death of the tenants, who were liable to put the landiord into possession of the promises, which they had earlier acquired, would not, therefore. affect the liability of their estate. The landiord still can follow his- claini for recovery of the premises, in the hands of the legal representatives of the deeeased tenants. Accordingly, his right to sue survives against them.
(20) Mr. Sabharwai contended that even if the right to sue had suivived in favor of the landiord and against the legal representatives. it could not be enforced by the Controller, who had no power to pass an order against any person other than a tenant. The legal representatives, according to him, were not the tenants; and, therefore, not amenable to the Controller's jurisdiction. This contention is not well founded. Although in section 14(1) the language cniployed speaks of a ban against an order or decree for recovery of possession in favor of the landiord against a tenant, yet The power of the Controller to make an order for recovery of the premises is contained in the proviso which is widc in scope. It provides, in uncquivocal terms that "the Controller may, on an application made to him, in the prescribed manner, make an order for the recovery of the preniiscs on one or more of the specified-grounds. It does not say against whom this order can or cannot be made. There are no such limits tothe Controller's power. The interpretation put by Mr. Sabharwai suggesting that this power is limitcd to making an order against a tenant oniy has no justification. A similar argument was advanced in South Asia Industries Private Limifed v. Sarup Singh and others, Air 1966 Sc 3460) which case had arisen aiso out of an application eviction under section 14(1) of the 1958 Act. RepeUing this argument, Mr. Justice A. K. Sarkar, who delivered The Icading judgment of the majority, with whom Mr. Justice Bachawat agreed in a separate concurring judgment, observed : "Iam unable to accept this argument. This proviso expressly states that an order for ejeetnient can be made 'on one or more of the following grounds' and then sets thc grounds out in the different clauses that follow. one of which is clause (b) with which we are concemed. The clauses, therefore, set out the circumstances in which the operative part of the proviso is set in motion, that is, thc circumstances in which an order for recovery of possession may be made. If this is so, as l think, it is. the clauses could not have been intended to indicate the person against whain an order for recovery of possession could be, made. Their purpose was entirely different, am not suggesting that an order for recovery of possession against the assigning tenant cannot be made. Ail that l say is that the clauses do not intend to indicate The persons against whom an order for recovery of possession can be made and so it cannot be argued that the order cannot be made against any other."
(21) Mr. Sabharwai contended that that case was for eviction under clause (b) against a sub-tenant and not against a legal representative. Here aiso sub-tenants are parties in Sao 6 of 1968. But, this hardiy makes any difference. In the case before the Supr me Court, the tenant was a company incorporated under the Companies Act. During the pendency of the proceeding, the company was completely wound up and became extinct. lts name was struck off from the record, leaving the sub-tenant as the oniy respondent. The ground for eviction claimed was, of course, under clause (b) ; but the observations of the Supreme Court were general and were intended to cover ail cases for recovery of possession under section 14(1).
(22) Mr. Justice Sarkar observed : "Lobserve that the object of the first part of sub-section (l) of S. 14 is to ban ail recovery of possession of tenanted premises by a landiord and that of the proviso is to lift that ban in specified cases. The object of the proviso is then to enable the landiord to recover possession in any of the specified cases. Assume that the present is a case where the landiord became enti (23) Even the dissenting view expressed by Mudholkar J. limited its dissent to a case where the tenant became totally extinct as happened on the winding up of the company, which was the tenant in that case, without leaving any legal representative. But, if the tenant died leaving legal representatives (as has happened in the instant case) the leamed Judge saw no objection to bringing on record his said legal representatives, Mudholkar J. observed : "WHEREduring the pendency of the proceeding before the Rent Controller the tenant dies or makes an assignment of whatever interest he may still h ve left in the demised premises, no difficulty would arise, because his legal representative or assignee could be brought on record in his place."
(24) This was a case from Delhi under this very 1958 Act. This judgment of the Supr me Court, thereforc, is dircctiy on the point involved and clinches this issue, lt is patent that once any of the circumstances mentioncd in clauses (a) to (l) to the proviso to sub-section (l) of section 14 are shown to exist, the legal representative will not escape from the jurisdiction of the Controller who will continue to have power even after the tenant's death to pass an order for recovery of the premises in favor of the landiord against whosoever claiming under the tenant, may be in possession. V. S. Deshpande J, we must say with respect, was, therefore, in crror when speaking for the Bench in K. G. Malhoira's case, hc observed "If the statutory tenant dies before an order for eviction is passed the basis of the daim of the landiord for eviction has to shift from the proviso to section 14(1) to that of his general title. The application for eviction cannot, therefore, proceed further. ........ .though the general right to sue survives to the landiord to pursue this remedy on the basis of title in a civil court, the right to pursue the application under the 1958 Act does not survive and the Controller has to terminale the proceedings". His observations in the case of Mangal Chand v. Garinukh Singh Air 1972 Delhi to the effect that "the application for eviction would have abated on the death of Mangal Chand in accordance with the principle of Ruie 4 of Order 22, Code of Civil Procedure", even as explained by him in K. G. Malhotra's case, cannot be supported and we are unable to subscribe to the said view. The Controller cannot dismiss the application for eviction on the Jeath of the statutory tenant, by saying that he has ceased to possess iurisdiction. We arc of the opinion that he does not lose jurisdiction.
(25) A legal representative is appointed merely in order that the suit or the proceeding might proceed and a decision be arrived at. lt is the original parties' rights and disabilitics that h ve to bc considered and the mere fact that the legal representative could not personally daim that right or could not personally be subjected to that disability, is not sufficient to render the proceeding initiated by the petitioner liable to dismissal. (Sec Gulli v. Sawan & others, Air 1924 Lahore 450. lt is the obligation of The dcceascd tenant thereforc that has to be considered and not that of his hoirs, who have bcen brought on record as legal representatives and in whose hands the possession of the property now is. That being so, an order for the recovery of the premises, if made by the Controller against the legal representatives can be duly cxeclitcd. The relief granted by the Controller after the death of the tenant against The legal representatives would not become nugatory. In Andhra Bank Liinifed v, R. Srinivasan and others, , the legal representatives of a deceased defendant were non-resident foreigners. Placing relianec on the judgment of the Privy Council in Gui'diul Singh v. Raja of Faridkote, 21 Ind. App. 171 an argument was advanced that a decree pronouneed in ubsenteiH by a foreign court, to The jurisdiction of which the defendants h ve not in any way submitted thernselves is by international law an absolutc nullity. The court was, therefore, in these circumstances, said to h ve lost jurisdiction against the legal representatives, who were foreigners and not submitting to its jurisdiction, on the death of The defendant. The Supr me Court, while rejecting this argument, referred with approval to The following passage in Salmond's 'Jurisprudence',11th Ed. inheritanceis in some sort a legal and fictitious continuation of the personality of the dead man, for the representative is in some sort identified by the law with him whom he represents. The rights which the dcad man can no longer own or exercise in propria persoiia, and The obligations which he can no longer in propria persona fulfill, he owns, exercises, and fulfills in the person of a living substitute. To this extent, and in this fashion, it may be said that the legal personality of a man survives his natural personality, until, his obligations being duly performed, and his property duly disposed of, his representation among The living is no longer called for."
(26) On the basis of the above statement, the Supr me Court observed : "ESSENTIALLYand in substance and for the purpose of jurisdiction the suits brought by the appellant against Raja Bahadur did not alter their character even after his death and continued to be suits substantially against his estate as represented by his legal representatives. If that be the true legal position, there would be no scope for urging that The court which was competent to try the suits as originally filed ceased to be competent and try them becausc the legal representatives of the deceascd Raja Bahadur were non-rcsident foreigners."
(27) The above observations of the Supreme Court show that V. S. Deshpande J. was not right when he said that "if the statutory tenant dies before an order for eviction is passed, the basis of the daim of the landiord for eviction has to shift from the proviso to section 14(1) to that of his general title". The Supr me Court further obscrvcd : INsuch a case if one of the defendants dies and his legal representatives happen to bc non-resident foreigners the procedural step taken to bring them on record is intended to enable them to defend the suit in their character as legal representatives and on behaif of the deceased defendants and so the junsdiction of the court continues unaffected and the competence of the suit as originally filed remaining unimpaired. In form it is a personal action against the legal representative but in substance it is an action continued against them as the legal representatives in which the extent of their liability is ultimately decided by the extent of the assets of the deeeased as held by them."
(28) In the present case, therefore, the legal representatives of the deceased tenants could be and were rightiy brought on record to enable them to defend the procedings on behaif of the deceased tenants. Jurisdiction of the Controller to deal with the applications continued unaffected and the competence of the application as originally filed remained unimpaired. Although in form it may appear to be a personal action against the legal representatives, in substance it is an action continued against them as legal representatvies and the extent of their liability is ultimately decided by the extent of the assets or the estate of the deceased held by them. Such assets or the estate in the present case is the promises in dispute in their hands. Their liability, therefore, would extend to their putting the landiord back into possession of the said promises. If therefore, any of the circumstances specified in the proviso to section 14(1) is found to exist, the Controller would make an order for recovery of the promises after bringing the legal representatives on record on the death of the tenants and for that purpose would continue the proceeding till final decision. This is precisely what Ruie 4 of Order 22 of the Code of Civil Procedure requires. For, when the right to sue survives, as it does in this case, the Controller on an application, "shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit" . The suit (the application in this case) has thus to be proceeded with and is not to be dismissed on the ground that the legal representatives did not inherit the tenancy rights or the protection from eviction.
(29) We may pause here to dispose of another point. Which though not involved in the present appeals, has been mentioned in a passage in the Full Bcncli judgment in K. G. Malholrcl's case, which may possibly cause some misunderstanding. The said passage, as already noticed, reads : "the landiord may not apply within the prescribed time to bring the legal representatives on record. In such a case, the application abates as provided by Order 22". We must say with respect that we cannot agree with this observation- This question came up for consideration before the Division Bench consisting of S. N. Andiey C. J., and T.P.S. Chawla J. in Silbhash Chander v. Rehmat Ullah, Ilr, 1973 (l) Delhi 181 and it was held that the Limitation Act does not apply to proceedings before the Controller. We arc in respcctfui agreernent with the said view of the Division Bcncli.
(30) The Supreme Court in J. C. Chatterjee and others v. Sri Krishna Tandon and another, , was of the opinion that thc landiord's right to proceed with The appeal (in that case the tenant died during The pendency of the appeal), with a view to obtain possession of his promises, did survive under Order 22 Ruie 4 read with Ruie 11 of The Code of Civil Procedure- The Supr me Court observed : "WHEREthe right to sue and prosecute appeal survives, the appellant is bound to cause the legal representatives of the deceased respondent to be made a party and proceed with the appeal."
(31) Under sub-rule (2) of Ruie 4 of Order 22, Code of Civil Procedure, any person so made a party can make any defense appropriate to his character, as legal representatives of the deceased defendants. The Supr me Court in J. C. Chatterjee's case held that ail contentions, which would be urged by the deceased could be urged by his legal representatives "except oniy those which were personal to the deceased". The Supr me Court observed : "THEoniy contentions that they (legal representatives) could put forward in the appeal were the contentions appropriate to their representative character and not one, which was personal to the deceased. The contention based on the ground of bona fide requircment by the landiord was pcrsonal to the 'statutory tenant and on his death the samc is not open to his legal representatives. ......."
(32) If the legal representatives set up their own independent titic this would not bc in their capacity as legal representatives of the deccased or representing his estate. Thcy wonid thon be parties to the proceeding in their dual capacity, viz. in their capacity as legal representatives ol' hc deccased tenant and in their other capacity claimed by them indcpendently of the deceased. And if the landiord denies The latter capacity. the controller would have jurisdiction to decide, incidentally, their daim on merits, in order to determine whether the contention of The landiord that they had the capacity as legal representatives oniy was correct. The decision of the Controller on the independent daim set up by The legal representatives, will, of course, bc subject io final review by The civil court, if that court is moved. This is what the Supreme Court observed in 0m Parkash Guphi v. Dr. Rai fan Sill.qh, 1963 (so) (33) To sum up, the relief the landiord daimed in his applications linder section 14 against The tenants, whose tenancies had aiready been determincd and who were alleged to have lost the protection of section 14 of the 1958 Act, could, thus, be daimed on their death against their legal representatives. The right to suc on the basis of The applications under section 14 of the 1958 Act, which were pending before The Controller. therefore, survived in favor of the landiord and against the respondents in Sao 6 of 1968 and the respondents Nos. l to 4 in Sao 54 of 1968. who were rightiy held to bc The legal representatives of the deceased tenants : and were correctiy brought on record as such. The jurisdiction of the Controller to deal with The said applications after the death of thc tenants remained unaf ectcd. The proceedings under section 14(1) of the 1958 Act, therefore, have to bc continued against The said legal representatives. Since the power of the Controller to pass an order for recovery of possession depends on The existence of one or more of The conditions spccified in clauses (a) to (l) of the proviso to sub-section (l) of section 14, the landiord has to establish that they do exist. In answer thereto, the legal representatives who have been brought on record, may put forward such contentions as are appropriate to their representative character, but not the contentions which were pcrsonal to The deccased tenants. Thev would, of course, be entitled to support their aforesaid contention by such evidence, as thev may be able to adduce. If the Controller finds that one or more of the aforesaid conditions exist, nothing would prevent him from passing an order for The recovery of the premises in favor of the landiord and against The legal representatives. In case The Controller cornes to The finding that the landiord has not been able to establish any of the grounds which arc mentioned in clauses (a) to (l) of the proviso to section 14(1), then he would have no power to pass an order for recovery of possession for the reason that The conditions on which his power to order recovery of possession rests, do not exist. The landiord may then file, if so adviscd, a regular suit for possession in the civil court, which would be on a different cause of action.
(34) Before parting with these appeals. wc must express our appreciation for The valuabic assistance given to us by Mr. H. K. L. Sabharwal, who at our request argued The appeals on behaif of The respondents ainiclis curiae. This had to bc done because The respondents were unrcprcsented on the day whcn the appeals were put up for arguments before us for the first time. Subscquently, Miss Asha Singh appeared, filed memo of appearance on behaif of respondents Nos. 5 to 7 in Sao 54 of 1968 and addressed arguments on their behaif.
(35) In the resuit, The second appeals succeed. The order of The Tribunal aflirming those of The Additional Controller, as well as The order of the Additional Controller dismissing The applications for eviction are set aside. The cases are remanded to the Additional Controller for proceeding with The trial of the applications for eviction in accordance with law and in The light of the observations made in this judgment. In the peculiai- circumstances of The case, the parties shall bear their own costs in these second appeals and before the Tribunal and the Additional Controller.