Shri Mohammed Anis vs Shri Sameer Ahmed And Others
2001 Latest Caselaw 746 Del

ORDER

Vikramajit Sen, J.

1. The Landlord has filed this petition under Article 227 of the Constitution against the dismissal of his eviction petition by the Additional Rent Controller (ARC) on the grounds that he had failed to implead the Legal Representatives of deceased Respondent No.3/tenant. The Landlord has also not succeeded in his challenge to the order before the Rent Control Tribunal (RCT). The letter had favored the view that even though 'Leave to contest' had not been applied for by Respondent No.3 it did not automatically follow that eviction orders should be deemed to have been passed. The Tribunal had further held that the law enjoined upon the Petitioner to move an application under Order XXII Rules 4 of the Code of Civil Procedure for impleading the Legal Representatives of the deceased party if the right to sue had survived. It held that since possession had to be taken from some person it was imperative that his Legal Representatives should have been imp leaded.

2. The facts of the case are that an eviction petition under Section 14(1)(e) read with Section 25B of the Delhi Rent Control Act (hereinafter referred to as DRC Act) was filed on 23.5.1994 against the legal heirs of late Mohammad Ahmed, the erstwhile tenant of the Petitioner. One of them was late Noor Ahmed, who was arrayed as Respondent No.3 in the Eviction Petition. Respondent 3 and 4 were served but failed to file any application for grant of leave to contest. However, on 2.3.1995, on the concession of the Counsel for the Petitioner, leave to contest was granted to all the remaining Respondents. No order was passed on this date of hearing in respect of Respondent 3 and 4, beyond recording the factum of their having been served. On 5.4.1995 the same position prevailed. On 28.5.1995 these Respondents were set ex parte. The eviction petition was contested by the other Respondents. In this interregnum, an application under Order IX Rule 7 of the C.P.C. was filed on 13.11.1995 but was rejected on 12.7.1996 as not maintainable, inter alia, because no application for grant of leave to contest the eviction petition has been filed. Significantly, even at this juncture neither was a prayer for the passing of an eviction order qua this Respondent made, nor did the ARC consider it appropriate to do so. Respondent No.3 thereafter filed an application dated 8.8.1996, under Order xxxviii Rule 4 of the C.P.C. read with Section 25B(4) of the D.R.C. Act but before this could be decided by the ARC he died on 14.11.1996. Thereafter, since no one was present at the hearing scheduled for 5.8.1998, the opportunity to cross-examine the Petitioner went unavailed. The case was still adjourned for the recording of the Respondent's evidence, but none appeared. In the course of hearing final arguments on 4.12.1998, the ARC observed that - "On 2.3.1995 a decree was passed against Respondent 3 and 4. Respondent No. 1, 2 and 5 to 8 were continuing. Respondent No. 3 has expired during the pendency of the proceedings. Counsel for the Petitioner has submitted that no substitution is required in view of the fact that a decree already stand passed against Respondent No.3 when he was alive and an Application under Order 9 Rule 7 of the Respondent No.3 also stand dismissed, final arguments hears, to come up for orders on 5.12.1998." It need underscoring that the argument was not based on sub-rule (4) of Rule 4 of Order XXII, even at this stage of the proceedings. On this date the ARC dismissed the eviction petition, holding that it had abated consequent on the non-impleadment of the legal representatives of the Respondent No.3. As already noticed he was in possession of the demised premises in his lifetime, and presumably his Legal Representatives are now in possession thereof. In the proceeding before this Court held on 19.3.2001 Learned Counsel for the Respondents including the newly added Respondents 3A to 3E (legal representatives of the deceased Respondent No.3) made a reasonable offer for the remand of the case to the stage when the application under order xxxvII Rule 4 had been filed, and also offered to waive objections to the delayed impleadment of Respondents 3A to 3E. This offer was declined by the Petitioner/landlord and hence final arguments were heard.

3. It would be of advantage of reproduce Rules 4 and 6 of Order XXII of the C.P.C. since the former has been relied upon by the Respondents and the latter by the Petitioner. The Appellants have quite apparently got lost in the labyrinth of Rule 4 and have not considered sub-rule (4) thereof to be of relevance.

"4. (1) Where on of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defense appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

(5) Where-

(a) the plaintiff was ignorant of the death of the defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963, and the suit has, in consequence, abated, and

(b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act 1963, for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act,

the court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.)

("4A and 5 omitted as they are not relevant.)

6. Notwithstanding anything contained in the foregoing rules, contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place."

4. In order to appreciate the rival contentions of Learned Counsel for the parties the first factor to be noticed is that the cause of action survived on the death of Respondent No.3 against his legal representatives, as they appear to have continued in possession of the demised property. Sub-section (3) of the Section (4) of Order XXII C.P.C. declares that "on the failure to file an application within the prescribed period the suit shall abate against the deceased defendant." It is now beyond debate that no orders of abatement are necessary and this consequence takes effect on its own. This appears to be the premise on which the order of dismissal was passed by the ARC and was sustained by the RCT.

5. Mr. Ishwar Sahai, Learned Senior Counsel for the Landlord, however, contends that Rule 6 applies to the facts of the present case and it mandates that the judgment may be pronounced regardless of the death of a party in the period between the conclusion of a hearing and the pronouncement of the judgment. If this argument is translated into the actual sequence of the hearings of the case, it will be seen that the relevant period would be bounded between 2.3.1995 and 5.12.1998. On the former date the Court had noticed that Respondents 3 and 4 had been served but no application had been filed; no other orders had been passed viz a viz these Respondents on that date. Significantly however, the other Respondents were granted leave to contest, and the opportunity to file the Written Statement was permitted. Neither on 2.3.1995 nor on any date thereafter were proceeding/hearing adjourned for the purpose of considering the nature of orders to be passed against Respondents 3 and 4. Rule 6 of Order XXII is clearly not attracted. It is true that it was open to the ARC to pass a decree of eviction against these Respondents on that date, since Section 25B(4) envisages that in default of the tenant's appearance or his obtaining leave to contest the statements made by the landlord in the eviction petition shall be deemed to be admitted by the Tenant and the Landlord/Petitioner shall be entitled to an order of eviction. This provisions is analogous to Order xxxvII Rule 3(6) of the C.P.C. It cannot, however, be ignored that such an order was not asked for or passed, but instead leave to contest was granted to the other Respondents. The only logical inference is that leave to contest was also allowed to Respondents 3 and 4. On a perusal of the eviction petition, all the Respondents were similarly placed and in granting leave to most of them there would have been little justification to refuse leave to Respondents 3 and 4. The argument that the case was adjourned on 2.3.1995 for pronouncement of judgment against Respondents 3 and 4 and continued i this state for almost three years till 5.12.1998, is absurd. Rule 6 of Order XXII would have applied to the case if after the final 'hearing' held on 4.12.1998 and the date fixed for pronouncement, that is, 5.12.1998, Respondent No.3 or Respondent No.4 had died. But this is not what transpired. Respondent No.3 died while his application under order xxxvII Rule 4 read with Section 25B was pending disposal. The argument that the situation was akin to that of the death of a plaintiff in a civil suit is intended to somehow cover-up the Landlords failure to take the requisite steps to bring the Legal Representatives of Respondent No.3 on record. The fair conclusion could at best be that the application of Respondent No.3 under order xxxvII read with Section 25B would have abated. This does not tantamount to excusing the Landlord from fulfillling his legal obligations. It is quite conceivable that one of the other Respondents may have succeeded in proving that the Landlord's petition called for dismissal. For instance, it may have been proved that the Petitioner was not the owner of the premises, or that he had other reasonably suitable accommodation available for his residential use. In such a situation it would not have been proper or possible to pass a decree against Respondent No.3 and 4 even though they had neglected to apply for leave to contest the petition.

6. Sub-section (4) of Rule 4 of Order XXII of the C.P.C. is undoubtedly contextual. It will be recalled that on 2.3.1995 it had been recorded that Respondents 3 and 4 had been served but had not applied for leave to contest the eviction petition. Since there was also no representation on their behalf, the ARC could have proceeded ex parte qua them, even if he did not consider it appropriate to pass a decree against them since the other Respondents had been granted leave to contest on the concession of the Advocate for the petitioner. Arguably, Respondents 3 and 4 could have taken advantage of this nebulous situation, and filed their Written Statement. This also did not transpire. Therefore, there was absolutely no defense but forward by the deceased Respondent No.3 Sub-rule (3) of Rule 4 declares that on the failure to take requisite steps for the impleadment of the legal representatives of the deceased defendant the suit shall abate. But this sub-rule is immediately qualified by the exception that if the deceased defendant had not effectively contested the suit the Court may, if it thinks fit, exempt the Plaintiff from the necessity of carrying out the substitution. On an analysis of this sub-rule it is clear that it comes into operation at the final hearing of the lis, since it mentions the pronouncement of a 'judgment' in contradistinction to an 'order'. The latter has been defined in Section 2(1a) of the C.P.C. to mean "the formal expression of any decision of a civil court which is not a decree". No doubt the word 'judgment' has been defined in Section 2(10) as "the statement given by a Judge of the grounds of a decree or order", thus encompassing both events. But a reading of Section 2(2) of C.P.C. leaves little room for doubt that what is envisaged in sub-rule (4) is 'only the judgment.' It reads as follows:-

"decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question * * * section 144, but shall not include:

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

7. Based largely on the narrower meaning given in the C.P.C. to 'order', I am of the opinion that the 'hearing' envisaged in this sub-rule is the final hearing of the lis. Thus, if one of the Respondents who had not put in his defense, or had shown his disinterest in the outcome of the case by remaining ex parte, or had died after 'final arguments' had been addressed, his legal representatives would not mandatorily require to be imp leaded. This is based on sound common sense. No appreciable difference would result even if it is assumed that the death of one of the Respondents at the stage of the completion of arguments of any miscellaneous or interim application attracts sub-rule (4) of Rule 4 of Order XII. This is, because, in my view, is essential that this relief must be applied for. As mentioned above, the norm is as contained in sub-rule (3); the exception is the exemption contained in sub-rule (4). The Concise Oxford Dictionary defines exempt as 'free from and obligation or liability etc. imposed on others'. In this analysis, this rule would apply at any stage, whether before or after the expiry of the period specified for impleadment of the Legal Representatives. Its operation is not automatic or mechanical but only when it is specifically and consciously applied and the court arrives at the conclusion that the circumstances of the case dictate its application. It is also explicit in the language of the sub-rule that the prayer for exemption can be declined. It could be resorted to after 90 days have elapsed from the death of a Respondent and the Petitioner relies on the sub-rule to resist an abatement. It could be relied upon even within the period of 90 days if the Petitioner seeks an exemption or dispensation from going through the rigours and delays of bringing the representatives on record. In either case the Court would be justified in granting the prayer of exemption since the deceased Respondent had not defended the lis in his life time. It should be remembered that the submission of Learned Counsel for the Petitioner on 4.12.1988 before the ARC was that there was no need to complete this exercise because "a decree already stands passed against Respondent No.3 when he was alive." The prayer was not for exemption to implead the legal representatives.

8. In these circumstances the petition is wholly without merit. The conclusion of the ARC and the RCT are correct. Since the eviction petition has already been dismissed, I refrain from imposing costs.

9. Dismissed.