Krishan Kant And Ors. vs Tulsi Bahi Gordhan Bhai Patel
1987 Latest Caselaw 503 Del

JUDGMENT

P.K. Bahri, J.

(1) This civil revision has been brought against judgment dated April 16, 1985 of Sh. B. S. Chaudhry, Additional District Judge by which he has dismissed the appeal brought by the appellant against the order dated February 18, 1978 of Sh. R. N. Jindal, Sub-Judge whereby he dismissed the objection petition filed by the objectors-appellants in execution application No. 117/71.

(2) Facts in brief are that Moti Sarup, since deceased, predecessor-in-interest of the present petitioners was a tenant in the premises bearing Municipal No. 3143/IX situated at Lal Darwaza, Bazar Sita Ram. The respondents had filed an eviction petition against Moti Sarup under the provisions of Delhi and Ajmer Rent Control Act, 1952 on 6th January, 1959. The said suit for ejectment was decreed by Shri H. S. Ahiuwalia, Sub Judge, 1st Class on March 21, 1960. The appeal was dismissed by the appellate court against the judgment and decree of the lower court on March 27, 1962 and a revision petition filed in the High Court was dismissed on August 29, 1962.

(3) As the law then stood, the respondents applied for getting permission from the Competent Authority under the Slum Areas (Improvement and Clearance) Act, 1956 for executing the eviction decree against Moti Sarup. The permission was declined. The respondents, threafter, filed a civil suit seeking possession of the premises on the averments that as the eviction order stood passed against the tenant, Moti Sarup, he had ceased to be tenant or in lawful possession of the premises in question so he was bound to surrender possession of the premises to the respondents. It so happened that the law which was being interpreted by the High Court at that time, helped the respondents in getting a decree for possession from the civil court against Moti Sarup on March 30, 1966. Appeal filed by Moti Sarup was dismissed by the first appellate court on October 28, 1966. Moti Sarup filed a second appeal which was No. Rsa 23167. During the pendency of this appeal in the High Court, Moti Sarup died in August, 1967 and the present petitioners being his legal representatives were substituted as appellants in place of Moti Sarup. By the time the appeal came up for decision a Full Bench of this High Court decided the legal issue regarding the status of an ex-tenant against whom the eviction order was passed vis-a-vis definition of tenant given in the Slum Areas (Improvement and Clearance) Act, 1956. The said judgment is reported as Bardu Ram v. Ram Chander, (1970 Rcj 1078) (1). It was held in that judgment that for the purposes of the provisions of Slum Areas (Improvement and Clearance) Act, the person, against whom a valid eviction order had been passed, continues to be covered by the definition of tenant given in the aforesaid Act and thus, no civil suit was maintainable for getting possession from such a tenant and the landlord was bound to obtain requisite permission from the Competent Authority under the said Act before executing the eviction decree. Following the aforesaid judgment D. K. Kapur, J. on August 5, 1971 allowed the appeal and set aside the judgments and decrees of the lower courts.

(4) The respondents thereafter filed an execution application on November 25, 1971 for getting possession from the petitioners in execution of the decree already obtained under the provisions of Delhi and Ajmer Rent Control Act, 1952. The petitioners filed objection petition pleading that without obtaining the permission from the Competent Authority under Slum Areas (Improvement and Clearance) Act the execution application was not maintainable and moreover it has been held by the High Court in the appeal that the execution cannot proceed till necessary permission is taken from the Competent Authority under the Slum Areas (Improvement and Clearance) Act and the said judgment operated as res judicata between the parties. They also, inter alia, pleaded that they are covered by the amended definition of tenant under the Delhi Rent Control Act, 1958 and the decree already passed against their predecessor is liable to be re-opened.

(5) The first point to be seen is whether the respondents are liable to obtain any permission from the Competent Authority under the Slum Areas (Improvement and Clearance) Act before executing their eviction decree. This point has already been settled by this Court in a number of judgments to which I may refer. In 1971 (RLR (Notes) 1, Ram Chand Siri Ram & Anr. v. Mangol Kumar (dead) & L. Rs. (2), it is held that the legal representatives of the tenant against whom eviction order had already been passed are not covered by the definition of 'tenant' as given in the Slum Areas (Improvement & Clearance) Act and thus, no permission was required to be obtained from a Competent Authority under Slum Areas Act before executing a decree for eviction. This judgment has discussed the implications of the judgment of the Full Bench given in case of Bardu Ram (supra) also. 1972 Rcr 428 Raj Rani v. Moolan Bai & Ors. ; 1973 Rcr 63 Nathu Khan & Ors. v. Mohd Ismail 1973 Rcr 516 Jagatri Lal v. Charanji Lal ; 1974 Rcr 276 Chhotey Lal y. M. S. Shammi & Ors ; also lay down the same proposition of law that protection of the provisions of Slum Areas Act is not available to the legal heirs of the tenant against whom eviction order stands passed. The legal position is simple one. After all a person against whom a valid order of eviction stands passed in law is no longer a tenant. but in view of the provisions of the Slum Areas Act he is entitled to retain the possession unless and until a permission is obtained from the Competent Authority for executing the decree against such a tenant. However, such a right to retain possession by a tenant against whom eviction order stands passed is a personal right which cannot be inherited by his heirs. Under the general law such a te

(6) It has been, however, vehemently contended by the learned counsel for the petitioners that this particular issue should be treated as res judicata inasmuch as the respondents did not raise any plea at the time of the decision of the regular second appeal by this Court although the petitioners have been allowed to be substituted in that appeal. He has argued that the respondents ought and might have raised this plea before the Court deciding the appeal that with the death of Moti Sarup the petitioners have no locus standi to urge any points and they bought not to be imp leaded as appellants in place of the deceased in view of the fact that Moti Sarup had not left behind any estate in the premises in question to be inherited by his legal representatives and as respondents failed to take such a plea they are debarred from raising such a plea on principle of constructive res judicata. There is no merit in this contention because the previous suit of which the second appeal arose in the High Court was based on a different cause of action. The said appeal was to be decided on the basis of the original cause of action which was sought against Moti Sarup was that the decree having been passed against him he ceased to be the tenant. The question which arose for the decision was whether for the purposes of Slum Areas Act Moti Sarup would still be deemed to be tenant or not ? It is only the said point in issue which was subject matter of decision in that suit up to the second appeal. Alleged rights of the legal representatives of Moti Sarup were not in issue in those proceedings. When a party in a particular salt or appeal dies his legal representatives are merely appointed in order that the suit or appeal may proceed and a decision arrived at. It is the rights and liabilities of the original parties that have to be considered and not those of the legal representatives themselves. All that the legal representatives can, therefore, do is to take up the suit or appeal at the stage at which it was left when the original party died and to continue it. The legal representatives have to rely on the same cause of action as was available at the time of the filing of the suit. It is not open to the legal representatives to assert their own individual right in such a suit or appeal. These are the legal principles which have been holding the field for all times. In this connection we may see Air 1924 Lahore 45 Gulli v. Sawan & Others ; Air 1951 Punjab 389 (1) Durga Dass v. Ram Rakha Mal & Ors ; and Radhakrishna Padhi etc. v. Bhajakrishna Panda & Ors . I may also refer to J. C. Chattarjee & Others v. Shri Sri Kishan Tandon & another ; wherein it has been held that en the death of a tenant whose tenancy has been terminated his legal heirs brought on record do not get any title from the deceased and they have only the duty of handing over possession of the premises to the landlord. It was mentioned that legal representatives are entitled to make only that much defense which is appropriate to their character as legal representatives. They could urge only those contentions which the deceased could have urged except those which were personal to the deceased. So, the respondents in that appeal in the High Court were not legally entitled to urge any plea which they could have against the legal representatives of the deceased in independent proceedings. It was not in issue in the appeal as to whether any permission was liable to be obtained for executing the decree of eviction against the petitioners who are the legal representatives of deceased tenant. So, I am of the firm view that principle of res judicata is not applicable in the present facts.

(7) No finding has been given in that appeal that any permission is required to be obtained from the Competent Authority under the Slum Areas Act before executing the decree against the petitioners. It is also a settled law by the High Court in Mathura Prasad Sarjoo Jaiswal & Others v. Dossibai N. B. Jeejeebhoy ; that a question relating to Jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of a Court. It was observed that if by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not operate as res judicata. Learned counsel for the petitioners has sited Avtar Singh & Others v. Jagjit Singh and another ; in which it was held that if a particular issue is raised and decided with regard to the point of jurisdiction then decision will operate as res judicata in a subsequent suit between the same parties. This ratio is not applicable to the facts of the present case because this issue relating to jurisdiction was not raised in the second appeal as to whether the executing court has jurisdiction to proceed with the execution of decree against the legal representatives of the deceased tenant without first having the sanction of the Competent Authority under the Slum Areas Act. So, this judgment would not help the petitioners on this point.

(8) In view of the above discussion, I hold that the respondents could execute the eviction order against the petitioners without getting any permission from the Competent Authority under the Slum Areas Act. The petitioners then in half hearted manner tried to take advantage of the amended definition of tenant in the Delhi Rent Control Act of 1958. By amendment of the said definition the tenancies of the tenants whose contractual tenancies have been terminated have become inheritable by the legal heirs. Even in the case decided prior to the amendment of the definition of the tenant where eviction orders have been passed against such legal heirs and possessions have not been yet delivered the said eviction orders could be got set aside by the said legal representatives of the tenants who in view of the amended definition of the tenant in the Delhi Rent Control Act, 1958 have become entitled to remain in possession of the premises. The present is not such a case. Here, the eviction order was passed under the provisions of Delhi and Ajmer Rent Control Act 1952 against the tenant himself. No other point has been urged.

(9) I find no infirmity in the impugned orders of the lower courts and I dismiss this appeal with costs.