Nathu Khan And Ors. vs Mohd. Ismail
1972 Latest Caselaw 222 Del

JUDGMENT

V.S. Deshpande, J.

(1) One Rahim Khan was a tenant under the predecessor-iri-title of the respondent Mohamad Ismail from before 1-12-1962 when section 106 of the Transfer of Property Act first beacme applicable to Delhi. The respondent landlord sent a notice dated 8-1-1964 to Rahim Khan alleging that the latter had not paid arrears of rent in respect of the premises and staling that if the arears of rent are not paid within two months of the service of the notice, then proceedings for recovery of rent and for eviction would be taken against him. This notice was a composite notice under clause (a) of the proviso to section 14(1) of the Delhi Rent Control Act, 1958 (hereinafter called the Act) and also a reasonable notice according to the principle underlying section 106 of the Transfer of Property Act. As the notice was not complied with, the landord filed a petition for eviction against Rahim Khan before the Rent Controller under the provisions of the Act. The landlord proved the service of this notice on Rahim Khan . In the application for eviction, the landlord had alleged the service of the said notice on Rahim Khan but Rahim Khan had generally denied the allegations regarding the service of notice. After the service of notice was proved by the landlord, the contractual tenancy of Rahim Khan was terminated and he became a statutory tenant. Rahim Khan died during the pendency of the eviction proceedings before the Controller as a statutory tenant. The landlord made an application on the principle underlying Order Xxii rule 4 Civil Procedure Code stating that though Rahim Khan died as a statutory tenant and his heirs and legal representatives did not succeed to any tenancy rights and did not, therefore, become tenants under the landlord, they should nevertheless be brought on record in order to avoid any technical or legal objection. The legal representatives stated that the application was not maintainable but had no objection to bs brought on record if the Court held that it was maintainable. The Controller simply ordered them to be brought on record and proceeded with the eviction proceeding. As the rent was not paid in accordance with the order passed by the Controller under section 15(1) of the Act, the landlord applied to the Controller that the defense originally contained in the written statement filed by Rahim Khan and continued by his legal representatives should bs struck out under section 15(7) of the Act. The Controller refused to strike out the defense. The landlord, therefore, went in appeal to the Rent Control Tribunal which allowed the appeal and ordered the defense to be struck out. The eviction proceeding came back to the Controller who passed an order for eviction in favor of the landlord and against the legal representatives of Rahim Khan under clause of the proviso to section 14(1) the Act and also on other grounds which are not material for consideration.

(2) The legal representatives of Rahim Khan filed an appeal against the order for eviction to the Rent Control Tribunal which dismissed the appeal solely onthe ground that the order for eviction was valid inasmuch as the legal representatives had failed to pay rent in accordance with the order passed under section 15(1) though as to the other grounds for eviction it agreed with the appellants. The second appeal against the order of the Rent Control Tribunal filed by the legal representatives of Rahim Khan was dismissed in liming.

(3) The landlord filed a proceeding for execution of the order of eviction before the Controller. The legal representatives of Rahim Khan objected to the execution on two alternate grounds. Firstly, the legal representatives were brought on record on the death of Rahim Khan in the eviction proceedmgs and the order for evietion was passed against them. According to the decision of a full bench of five judges of this court in Bardu Ram v. Ram Chander, 1970 All India Rent Control Journal 1078,(1) the permission of the Competent Authority under section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 is necessary even though the order for eviction is passed against the tenant and at the time of the execution of the order for eviction the tenant had ceased to e a tenant. For, the word "tenant" in section 19 was held to include a former tenant or an ex-tenant. The landlord was therefore bound to obtain the permission of the Competent Authority under section 19 of the said Act before he could execute the order for eviction. Secondly and alternatively, if the legal representatives are held not to have inherited either the tenancy or the statutory protection which was available to the deceased Rahim Khan, then the Rent Controller had no jurisdiction to join them as legal representatives and to proceed against them. For, the jurisdiction of th3 Controller was restricted to a proceeding between landlord and tenant. "The order for eviction passed by the Controller was, therefore, without jurisdiction and this lack of jurisdiction was apparent on the face of the record which could be seen even by the executing court. The executing court should,therefore, refuse to execute the order for eviction on this ground.

(4) The Controller, however, disallowed the objections and held that the order for eviction could be executed by him even though the landlord had not secured the permission of the Competent Authority under section 19 of the Slum Areas (Improvement and Clearance) Act, 1956. Ill the appeal filed by the legal representatives of Rahim Khan, the decision of the Controller was upheld by the Rent Control Tribunal. Hence this second appeal by the legal representatives of Rahim Khan.

(5) In this second appeal also, the same alternative grounds of challenge to the executability of the order for eviction have been pressed by the learned counsel Shri Adlakha.

(6) The word "tenant" in section 19 ofthe Slum Areas (Improvement and Clearance) Act, 1956 certainly includes a tenant against whom an order for eviction has been passed. Even though the definition of a "tenant" in section 2(1) of the Delhi Rent Control Act, 1958 expressly states that it "shall not include any person against whom any order or decree for eviction has been made", this definition is restricted to the construction of the said Act. It cannot be extended to the construction of section 19 of the Slum Areas (Improvement and Clearance) Act, 1956. The latter provision was enacted partly to protect the possession of a person against whom an order for eviction was passed. As held in Bardu Ram's case, therefore, a tenant against whom an order for eviction is passed is also a "tenant" for the purpose of section 19 of the Slum Areas (Improvement and Clearance) Act, 1956. The reason is that a tenant whose contractual tenancy has been terminated either by a notice to quit under section 106 of the Transfer of Property Act or according to the principle underlying that provision or by an order for eviction having been passed against him still continues to be a statutory tenant. The Delhi Rent Control Act, 1958 is expressly enacted to protect the possession of tenants whose contractul tenanacy has been so terminated. It is the protection of the said Act which makes such a tenant a statutory tenant after the termination of the contractual tenancy. But as held by the Supreme Court in Anand Niwas v. Anandji Kalyanji's Pedhi, , the statutory protection is confined personally to the tenant himself. It is not an interest in property. It is not, therefore, heritable by the legal representatives of the statutory tenant. On the death of a statutory tenant, therefore, the legal representatives of the statutory tenant are not entitled to the statutory prolection afforded by the Delhi Rent Control Act, 1958. That protection ended with the death of the statutory tenant. "The practice and procedure" of a court of small causes is to be followed by the Controller as far as may be in the proceedings for eviction in view of section 37(2) of the Act. The procedure to be followed on the death of the sole defendant or respondent has been laid down in order Xxii rule 4 Civil Procedure Code. The principle underlying that provision has, therefore, to be applied to the death of a respondent in an eviction proceeding under the Act as was held in Mangal Chand v. Gurbaksh Singh, . The basis on which a legal representative of the deceased defendant or respondent is brought on record under Order Xxii rule 4 Civil Procedure Code is that after the death of the defendant, the right to sue survives. The expression "right to sue" is a wide one. It comprises the right to sue in an ordinary civil court as well as the right to sue in a tribunal of limited jurisdiction like the right to bring a petition for eviction before a Controller under the Act. According to the decision in Mangal Chand's(3)case referred to above, the right to sue does not survive on the death of a statutory tenant againt his legal representatives. The meaning of that decision is that the right to sue the legal representatives of a deceased statutory tenant does not survive in respect of the proceedings before a Controller under the Delhi Rent Control Act, 1958. For, the jurisdiction of the Controller is confined to proceedings which are between a landlord and a tenant. For the purposes of those proceedings, the "right to sue" will include only the right of a landlord to sue a tenant or the legal representatives of a tenant. A distinction is to be made between two different capacities of legal representatives of a deceased defendant. In one capacity, any person who "represents the estate of a deceased person" within the meaning of the definition of the "legal representative" insection 2(11) of the Civil Procedure Code is to be joined as the legal representative of a deceased defendant in a civil suit. It is not necessary that such a legal representative should actually inherit any property or estates of the deceased defendant. He is not joined as a legal representative because he is in possession of any property left by the deceased defendant.

(7) The concept of a "legal representative" is purely a creation of law. A civil proceeding cannot continue in a court of law or before a quasi-judicial tribunal unless there are two parties to it. A court or a tribunal cannot pass a decree or an order in a vacuum in favor of a person and against no body. A decree or an order can be passed only against a human being. It is absolutely necessary, therefore, that a legal representative of a deceased defendant should be brought on record if the suit itself does not abate. The abatement takes place when the claim of the plaintiff was only personal against the defendant. Instances of such personal claims are given in section 306 of the Indian Succession Act. In all other cases, the right of the plaintiff to sue survives. The legal representatives of the deceased defendant are thus persons who are his heirs at law and who, therefore, represent his estate irrespective of the fact whether a deceased person had left any estate or assets at all. Even if the deceased was a pauper, his heir at law will be his legal representative. For, he represents the estate in the eye of law whether the estate exists or not. This is true of a civil suit.

(8) But in the capacity of an heir of a tenant or a statutory tenant who is a respondent in a petition for eviction under the Delhi Rent Control Act, 1958, the meaning of the word "legal representative" will be restricted. It would include only those persons who inherit either the interest of a tenant in the property or the statutory protection available to a tenant under the Act. This was so held in Mangal Chand's(3) case referred to above. The heirs at law of the deceased Rahim Khan could not, therefore, be brought on record in a proceeding for eviction pending before the Controller. For, they were not .entitled to inherit either the rights of tenancy or the statutory protection against eviction which was confined to Rahim Khan personally.

(9) The correct course to be adopted by the Controller was to decline jurisdiction to proceed further with the eviction proceeding on the ground that the relationship of landlord and tenant between the parties had come to an end. For, while the legal representatives of Rahim Khan could have been brought on record in a civil suit under Order Xxii rule 4 Civil Procedure Code, they could not have been brought on record in the eviction proceeding due to the limitation of the relationship of landlord and tenant on the jurisdiction of the Controller. What is the effect then of the order of the Controller bringing these legal representatives on record in the eviction proceeding before him? It is clear that the distinction between the two different capacities of "legal representatives", namely, one for the purposes of a civil suit and the other for the purposes of the eviction proceeding under the Delhi Rent Control Act, 1958, was not apparent to the Controller nor was such a distinction made by the Rent Control Tribunal.

(10) It is in the light of the above legal position that we have to consider the alternative grounds of attack on the executability of the order for eviction pressed by the appellants before me. The first ground is that the appellants have been regarded as the legal representatives of the deceased statutory tenant and, therefore, they are "tenants" within the meaning of section 19 of the Slum Areas (Improvement and Clearance) Act, 1956. The order cannot, therefore, be executed unless the permission under section 19 is obtained. It is true that the word "tenant" includes an ex-tenant. But in view of the decision of the Supreme Court in Anand Niwasv. Anandji Kalyanji's Pedhi(2) referred to above, the statutory protection of a statutory tenant afforded by rent control legislation comes to an end on his death. It does not extend to his heirs at law. The object of section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 is to supplement the statutory protection enjoyed by the tenants and statutory tenants under the Delhi Rent Control Act, 1958 as was observed by the Supreme Court in Jyoti Parsad v. Adninistration for Union Territory of Delhi, , followed by us in C.R. Abrol v. Administrator under the Slum Areas, 1970 R.C.R. 519.(5).

(11) The question , therefore, is whether a person who is not entitled to the protection of the provisions of the Delhi Rent Control Act, 1958 is nevertheless entitled to the protection of section 19 of the Slum Areas (Improvement and Clearance), Act, 1956. A perusal of section 19 would show that it protects only two kinds of persons, namely:- (a) against whom a petition for eviction can be filed under the Delhi Rent Control Act, 1958,and (b) against whom a decree or order for eviction has been obtained under the provisions of the Delhi Rent Control Act, 1958.

(12) Section 19 applies only to tenants or staatutory tenants against whom an eviction proceeding can be instituted or against whom an order for eviction can be obtained under the provisions of the Delhi Rent Control Act, 1958. A person who is not a tenant or a statutory tenant cannot be dealt with under the provisions of the Delhi Rent Control Act, 1958. It would follow, therefore, that neither an eviction proceeding can be filed against such a person nor can an order for eviction e obtained against such a person under the provisions of the Act. For the same reason, therefore, such a person is not contemplated by section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 to be included in the word "tenant" used therein The legal representatives of Rahim Khan are precisely such persons. They are not, herefore, "tenants" within the meaning of section 19. No application can, therefore, be made by the landlord under section 19 the Competent Authority for obtaining a permission there under either for instituting a proceeding against such persons or for executing an order for eviction against them under the provisions of the Delhi Rent Control Act, 1958. The landlord in the present case was. therefore, rightly advised to file a petition for the execution of the order for eviction before the Controller without obtaining the permission of the Competent Authority under section 19 of the Slum Areas (Improvement and Clearance) Act, 1956. The first objection of the appellants that such a permission was needed for the execution of the order for eviction cannot, therefore, be sustained.

(13) The appellants then alternatively argued that if they are neither tenants nor statutory tenants, then the Controller had no jurisdiction to pass an order for eviction against them. This contention is correct in law. On a true view of law, the Controller should have declined jurisdiction to proceed against them. But the question to be considered is what is the effect of the mistaken jurisdiction assumed by the Controller in the proceeding against the appellants and passing an order for eviction against them. Unfortunately, the objection to the jurisdiction of the Controller or the Rent Control Tribunal on this ground was not raised before them, when they passed the order for eviction against the appellants. The reason was that such an objection could be raised only after an intensive study of the law stated above and also in Mangal Chand's case,(3), referred to above. The objection is raised for the first time before the executing court.

(14) It is well settled that an executing court cannot go behind a decree or an order which is to be executed. It can, however, construe a decree or order. Such construction has, however, to be confined to the face of the record. In Abdul Rehman, , the jurisdiction of the court of small causes was confined under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 to proceedings between a landlord and a tenant in respect of the premises. Opsn land used for agricultural purposes was not included in such premises. Nevertheless, an order for ejectment in respect of such land was passed by the Court of Small Causes. When the landlord, applied for the execution of the decree for ejectment, the judgment-debtor raised the objection that the Court of Small Causes had no jurisdiction to entertain the suit and the decree for ejectment on that account was a nullity. In that case also such an objection had not been raised before the Court of Small Causes when it passed the decree for ejectment. The considerations which should govern an executing court in considering such an objection were laid down by the Supreme Court in paragraph 6 of the judgment in the following words :- "ACourt executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties".

(15) In paragraph 7, their Lordships gave two instances of a decree which is a nullity, namely, (1) where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, and (2) where it is passed against a ruling prince without the plaintiff obtaining a certificate which was necessary before the prince could be sued. As to the first instance, it is to be noted that if the defendant dies after the conclusion of arguments but before the judgment, then such a decree would not be a nullity. To that extent, the record should be clear before a decree can be held to be a nullity. Otherwise, both these instances are such that the invalidity of the decree would be apparent on the face of the record to anyone who looks at it. No argument is needed to prove its invalidity. In respect of the case like the present one, the Supreme Court observed as follows in paragraph 7:- "WHENthe decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction lo entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction".

(16) In that case the Supreme Court held that "the question whether the Court of Small Causes had jurisdiction to entertain the suit against Munshi depended upon the interpretation of the terms of the agreement of lease, and the user to which the land was put at the date of the grant of the lease. These questions cannot be permitted to be raised in an executing proceeding so as to displace the jurisdiction of the Court which passed the decree".

(17) In Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, , the Supreme Court explained what is meant by an error apparent on the face of the record in the following words:- "ANerror which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self-evident and if it can be established, it has to be established by lengthy and complicated arguments".

(18) The nature of the error committed by the Controller and the Rent Control Tribunal in passing the order for eviction can be discovered only after a close study of the various provisions of the law stated above. It was not only not apparent to them but it was not apparently argued by the learned counsel when he took the second appeal to the High Court because the second appeal was dismissed in liming. An error, if any, which could not occur to the learned counsel or the Controller or the Tribunal and which was not apparent to the High Court when the second appeal was dismissed in liming can hardly be said to be an error apparent on the face of the record. The distinction if any, between the two capacities of "legal representatives" attempted by me above is new and somewhat subtle. It does not seem to have been drawn in any previous reported decision. On the one hand, it must have appeared to the Controller and the Rent Control Tribunal that a proceeding before them must be against some human being and cannot be in vacuum, it was quite plausible, therefore, that they should have brought the legal representatives of the deceased Rahim Khan on record; on the other hand, an argument can also be made that the jurisdiction of the Controller is limited to the relationship of landlord and tenant and the heirs of a statutory tenant cannot become parties to a proceeding before the Controller. Both these arguments are plausible. The distinction between them is not so obvious as to require no elucidation. It cannot be said, therefore, that the order for eviction in this case contained an error of jurisdiction which was apparent on the face of the record.

(19) The result of the above discussion is that the order for eviction, though passed against persons who were not tenants or statutory tenants, has become final between the parties. Its correctness cannot be questioned by the executing court as it does not disclose an error apparent on the face of the record.

(20) The second appeal is, therefore, dismissed but without any order as to costs.