Hari Chand vs Mohinder Nath
1969 Latest Caselaw 119 Del

JUDGMENT

I.D. Dua, J.

(1) S.A.O. No. 69 of 1968 was dismissed in default on 23.5.1969 on the ground that in spite of there being two counsels for the appellant, neither was present to prosecute the appeal. An application under order 9, Rule 13, read with section 151, Civil C.P. was presented in this Court on the same day on which it was dismissed in default and the reason given was that one of the counsel was present before one learned Single Judge of this Court and the other counsel before another learned Single Judge. Unfortunately, there was no one to inform this Court about this fact when the case was called, though I waited for the counsel for more than five minutes, having in the meantime gone through the record of the case. Even the Reader of this Court had nto been informed where the two counsels would be if this case happened to be called during their appearance in some other Court-room. This case was dismissed in default, as is usual with this Court, after waiting for more than reasonable time and when I felt that it would be improper to wait any longer. It must in this connection be clearly understood to be the duty of the counsel who have more cases than one fixed in one day before different Judges of this Court, to see that they make suitable arrangements with some colleague of theirs to appear for them in their cases which are called for hearing during their occupation elsewhere. There is no dearth of promising and industrious young lawyers practicing at the Bar of this Court who are anxious to get opportunities to prepare cases and argue them and who are second to none in their desire for maintaining the High traditions of the Bar. The counsel selected by the busy members of the Bar should, however, be ready, in the event of clash, to proceed with the case entrusted to them. Generally speaking, the counsel who are too busy professionally, are expected, in the interest of all concerned, to have a sufficiently large number of junior counsel whom they should train and appropriately instruct in cases they may have to conduct. This would nto only lessen inconvenience to the Court by saving time and safeguard the interests of the litigant public, but would in addition suitably equip and prepare the junior Bar for shouldering their responsibilities to the litigant public, to the Court and to the judicial process in our democratic set-up. Judicial process can effectively serve the cause assigned to it in our set-up only if the fraternal community of the Bench and the Bar concentrate on the conscientious performance of their respective duties in their traditional disciplined manner which postulates impartial and impersonal attention to the claims of the litigating parties. A professional lawyer, entrusted with the duty of representing his clients in their legal controversies in Court, is expected to perform that duty with the requisite sense of all-round responsibility befitting such entrustment. This sense of responsibility has its roots in the high traditions and conventions of the Bar, largely inherited by the Indian Bar from the English Bar. To appropriately guide, help and equip the junior Bar shouldering their responsibilities by appropriately instructing them and making them work, is indeed the privilege and also the duty of the senior Bar. This Court, it is needless to point out, is also fully alive to its duty in zealously guarding the traditional morality and privileges of the legal profession which is an essential and integral part of the administration of justice in our Republic, consistently with and subject to the legitimate interests of the litigant public and sustenance of the requisite quality of our judicial process.

(2) On this occasion, I have set aside the dismissal in default and restored the appeal to its original number as a, special case, but in future, this Court is duty-bound to be more strict in cases of those senior counsel whose hands are too full with cases which they cannto look after single-handed with the thoroughness demanded and who fail to have with them an appropriate number of junior counsel, so that the Courts do nto have to wait for them an unreasonable long time when their cases are called.

(3) After setting aside the dismissal in default and restoring the appeal to its original number, I have also heard the appeal on the merits.

(4) It appears that the Additional Rent Controller allowed Mohinder Nath's application for eviction of his tenant, the Municipal Corporation of Delhi, on the ground of bona fide personal requirement of the landlord. The Municipal Corporation and Hari Chand, the two defendants, as the order of the learned Additional Rent Controller shows, did nto admit Mahinder Nath to be the owner-landlord, although they admitted that the premises had been allotted by the Municipal Corporation to Hari Chand after its allotment to the Corporation by the Ministry of Rehabilitation for the residence of the Corporation employees. The Additional Rent Controller however, upheld the title of Mahinder Nath and as observed earlier, sustaining his plea for personal requirement, made the order of eviction.

(5) Hari chand alone seems to have appealed to the Rent Control Tribunal. A preliminary objection taken on behalf of Mohinder Nath before the Tribunal that Hari Chand had no locus standi to file the appeal because he was nto a tenant of Mohinder Nath, upheld. The Tribunal observed that Hari Chand being only an allottee of the premises in dispute under the Municipal Corporation his rights and liabilities were only those of the Municipal Corporation of Delhi and the order of eviction against the Corporation having become final, Hari Chand has obviously no locus standi to file the appeal. The appeal having been dismissed on the preliminary objection, Hari Chand has come to this Court on second appeal under section 39 of the Delhi Rent Control Act 59 of 1958.

(6) Shri Sethi, the learned counsel for the appellant, has relied on a decision of the Supreme Court in Karam Singh Sobti v. Pratap Chand in which it is observed that when a suit for ejectment is filed both against the tenant and the sub-tenant and one decree is passed against both, the sub-tenant has his own right of appeal against the decree. This right cannto be affected by the tenant's decision nto to file an appeal. There being one decree, the sub-tenant has a right to have it set aside, though the tenant would also be freed from the decree.

(7) Shri Goel has pointed out that in the Supreme Court case, the claim for eviction was based on subletting, with the result that both the tenant and the sub-tenant had independent rights if the sub-tenancy were to be held to be binding on the landlord and that question being in dispute, obviously, the sub-tenant had an independent right of appeal, whether or nto the tenant had availed of its right of appeal. As against this decision, Shri Goel has placed reliance on a Single Bench decision of the Punjab High Court in Dr.Prem Nath v. Pt. Manmohan Nath Dar,(2). It has observed in the reported case that person becoming a sub-tenant of the tenant with the consent of the landlord, cannto be deemed to be a tenant under his landlord and that a sub-tenant who is a party to the suit for ejectment brought by the landlord against the tenant is competent to prefer an appeal from an order of eviction passed against the tenant and himself, even though the tenant had preferred no appeal there from. To this extent, this decision is in accord with the decision of the Supreme Court. It has, however, been pointed out that in the course of the judgment, the learned Chief Justice had also observed as follows :- "DR. Prem Nath was a party to the suit for ejectment brought by the landlord and was at liberty to prefer an appeal from the order which was passed by the trial Court and to attack the judgment directly and collaterally. This attack, however, could be of little avail in a case like the present where Dr. Kidar Nath, the original tenant, had nto thought fit to lodge an appeal and order of ejectment passed against him had thereby become final and conclusive. Prem Nath was a sub-tenant under Dr. Kidar Nath, derived his rights and interests from Dr. Kidar Nath and had no independent status of his own. He is bound by the judge- ment of the trial Court in the same way as Dr. Kidar Nath himself, for, as stated above his rights and interests have been driven solely from Dr. Kidar Nath. It may be stated as a general proposition that when a landlord brings a suit for ejectment against his tenant and impleads the subtenant as a defendant, the sub-tenant has a right in his capacity as a party to the litigation to prefer an appeal from the judgment which has been rendered in the case. If, however, the judgment has become final and conclusive against the tenant, the right of appeal conferred upon the subtenant becomes illusory as he is bound by the decree passed against the landlord in view of the principles enunciated in the second part of the Transfer of Property Act (compare -Shankanao Govindrao Naik V. Kishanlal Nagarmal(3). In such circumstances the appeal is nto competent but infructuous."

(8) In my opinion, the question whether the appeal preferred by Hari Chand in the Rent Control Tribunal had become infructuous, was a matter to be decided by the Rent Control Tribunal. Unfortunately, the Tribunal has merely proceeded to dismiss the appeal on the ground that Hari Chand had no locus standi to file the appeal. This, in my view, is technically nto the correct view to take. Being a party to the proceedings before the Additional Rent Controller and being bound by the decree made against him and also against the Municipal Corporation, under the general principle of law, Hari Chand was entitled to take the matter to the appellate Court. But the effect of the Municipal Corporation having nto filed any appeal and, having allowed the order of the Additional Rent Controller to become final and unassailable, as against it, on the appeal presented by Hari Chand, alone had to be considered judicially by the Rent Control Tribunal. Shri Sethi has thrown a suggestion that this appeal could very well be considered to have been filed for the benefit of the Municipal Corporation. This argument has also to be determined after considering the relevant provisions of law which empower the Court of Appeal to give relief to a non-appealing party in case the appellant succeeds in assailing the part of the decree impugned by him on appeal. The question of common ground on which appeal by one of the several defendants proceeds, is again a question which requires determination of the merits of the case because it is only if a ground is available to both independently that it may as a general rule be considered to become common. Unless a clear finding was given on the merits that Hari Chand had no independent right surviving to him after the Corporation declines to contest its liability, the question of his locus standi could nto be decided against Hari Chand. As a general rule, a party to a legal proceeding, feeling aggrieved by an order made against him, is entitled to go up on appeal and unless it is considered on the merits that his right had, as a matter of law, being lost because of something happening in the interval, otherwise, his right of appeal could not, on general principles, be taken away. As to how far the power of the Court to grant such relief in favor of the respondent would be applicable to a case where the principal party, against whom a decree is made, which is rendered binding on the subsidiary party, has nto chosen to appeal from the impugned order or decree would also have to be considered by the Tribunal judicially after hearing proper arguments and coming to the necessary conclusion. This equitable doctrine empowering the appellate Court to grant relief to non-appealing party, requires proper balancing of several rules of law in the light of the facts of each case. Settled broad general principles can easily be found adumbrated in the law reports.

(9) As a result of the foregoing conclusion, I am constrained to allow this appeal and setting aside the order of the learned Rent Control Tribunal, send the case back to it for a fresh decision of the appeal in accordance with law and in the light of the observations made above. This order is nto to be construed as an expression of any considered opinion on the merits of the points in controversy. The parties are directed to appear before the learned Tribunal on 21.7.1969 and it is hoped that the appeal would be disposed of within two weeks thereafter. This controversy seems to have been somewhat unduly prolonged. There will be no order as to costs of these proceedings.