Rameshwar Prasad And... v. M/S. Shyam Beharilal..., Allahabad High Court, Judgment, Law, casemine.com

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Case Number

Second Appeal No. 448 of 1952, against decree of 1st Civil J., Kanpur, D/- 26-11-1951

Advocates

Jagdish Swaroop and O.N. Mehrotra
N.P. Asthana
D. Sanyal and M.N. Shukla

Judges

D.N Roy, J.

Acts

S. 3(i) of the U.P (Temporary) Control of Rent and Eviction Act, No. III of 1947.
16. Section 3 of the U.P (Temporary) Control of Rent and Eviction Act, 1947,
provisions of the U.P (Temporary) Control of Rent and Eviction Act, 1947,
Section 3 of the U.P (Temporary) Control of Rent and Eviction Act
provisions of Or. XXII, Rules 3 and 11 and Or. 41 R. 4 of the CPC
S. 3(i)(e) of the U.P Rent Control and Eviction Act,
SECTION 5 LIMITATION ACT
22, Rules 3 and 11

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Smart Summary

Factual and Procedural Background

This appeal arises from a suit for ejectment and rent in respect of House No. 49/19, Generalganj, Kanpur. The plaintiffs were landlords and Manni Lal Beni Madho (Defendant No. 1) was their tenant at Rs. 70 per month under a month-to-month tenancy beginning the first of each Hindi calendar month. Rent was in arrears to Rs. 420 on the date of suit, unpaid despite demand. Defendant No. 1 had let the premises in sub-tenancy to Messrs Shyam Behari Lal Jagannath (Defendant No. 2). The parties disputed the date when the sub-tenancy began: plaintiffs alleged it began after 1-10-1946 without their permission; defendants said it began in August 1946 with the plaintiffs' permission. The date was material because of restrictions on eviction under S.3 (including ground (e)) of the U.P. (Temporary) Control of Rent and Eviction Act, No. III of 1947.

Procedurally: plaintiffs obtained permission of the Collector to sue for eviction of Defendant No. 1 and filed the suit seeking eviction of both defendants. The trial Court found the sub-tenancy was created after 1-10-1946 without landlords' permission, found wilful default by Defendant No. 1, and decreed ejectment of both defendants (rent against Defendant No. 1 only). Defendant No. 1 did not appeal; Defendant No. 2 appealed to the lower appellate Court. The lower appellate Court found the sub-tenancy began in August 1946 (i.e. prior to 1-10-1946), found collusion between plaintiffs and Defendant No. 1 and, because collusion vitiates proceedings, refused to eject Defendant No. 2 while confirming the decree against Defendant No. 1. The plaintiffs filed the present second appeal.

During the appeal one of the appellants, Kedar Nath (Appellant No. 3), died (8-9-1955). An application for substitution by his sons (filed 1-10-1956) along with an application under Section 5 of the Limitation Act was rejected by this Court on 1-5-1957 for inordinate and insufficiently explained delay. A preliminary objection was then raised that the appeal had abated as to the deceased appellant and that this abatement affected the rights of the surviving appellants. The Court examined provisions of Order XXII Rules 3 & 11 and Order XLI Rule 4 CPC and relevant authorities to determine whether the appeal could proceed.

Legal Issues Presented

Whether the sub-tenancy to Defendant No. 2 commenced before or after 1-10-1946 (controlling the applicability of ground (e) of S.3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947).
Whether, in a suit by a landlord to evict a tenant and a sub-tenant, permission under S.3 of the U.P. (Temporary) Control of Rent and Eviction Act must be obtained against both tenant and sub-tenant or only against the tenant in suit.
Whether the appeal could be heard after the death of one of the appellants (Kedar Nath) whose legal representatives were not brought on record within time — i.e., the effect of abatement under Order XXII Rules 3 & 11 and the interaction with Order XLI Rule 4 CPC.
Whether the application for substitution (and application under Section 5 Limitation Act) should be condoned despite delay.

Arguments of the Parties

Plaintiffs' Contentions

Plaintiffs alleged that the sub-tenancy to Defendant No. 2 began after 1-10-1946 without their knowledge or consent, bringing the case within S.3(e) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947.
Plaintiffs contended there was no privity of contract between them and Defendant No. 2 and thus Defendant No. 2 was liable to be ejected along with Defendant No. 1.
Plaintiffs obtained the Collector's permission to sue to evict Defendant No. 1 and relied on that permission in the suit.

Defendant No. 1's Arguments

Defendant No. 1 asserted the subletting was done with the permission of the plaintiffs.
He claimed to have offered rent to the plaintiffs which was not accepted.
He stated he urgently required the shop for his personal use and was taking steps to eject Defendant No. 2.
He alleged the plaintiffs instituted the suit to exert undue influence and enhance rent.

Defendant No. 2's Arguments

Defendant No. 2 pleaded that subtenancy was created in his favour on 2-8-1946 at Rs. 70 per month and that he paid Defendant No. 1 Rs. 300 on that date as an advance to be returned after a year.
He asserted he had regularly been paying rent to the principal tenant and that the suit was collusive between plaintiffs and Defendant No. 1.
Relying on provisions of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, he contended he was not liable to be ejected.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Baij Nath v. Ram Bharose, AIR 1953 All 565 (Full Bench)	Held that when all plaintiffs/defendants originally appealed and one appellant dies during the appeal leaving no legal representatives on record, the appeal of the remaining appellants can be heard only if (a) the rights and interests of the surviving appellants are not joint and indivisible with those of the deceased, and (b) success would not produce inconsistent or contradictory decrees; decision will not inure to benefit deceased's legal representatives.	The Court applied these principles to hold that the appeal had abated as to the deceased appellant (Kedar Nath) and, because the surviving appellants' rights were joint and indivisible with his (and success would produce inconsistent decrees), the appeal could not be heard for the surviving appellants.
Ramphal Sahu v. Satdeo Jha, AIR 1940 Pat 346	Was relied upon by respondents and examined by the Full Bench in Baij Nath; the opinion does not state the full principle of this decision in the present text.	The Court noted that this earlier decision was considered by the Full Bench in Baij Nath and was relied upon by respondents; the Full Bench's analysis and conclusion (in Baij Nath) governed the present case.
Makhan Lal v. Girdhari Lal, 1951 All LJ 671; AIR 1952 All 421	Supports the proposition that permission under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act must be obtained by the landlord against his tenant (not necessarily separately against a sub-tenant) when seeking eviction.	The Court referred to this decision when noting, but did not decide upon, the substantive eviction issues because a procedural defect (abatement) prevented adjudication on those merits.
Ram Bharose v. Ajit Kumar, AIR 1952 All 806	Also laid down that the permission contemplated by Section 3 of the U.P. Act is to be obtained by the landlord against his tenant and that a sub-tenant cannot have higher rights than the tenant-in-chief.	The Court cited this authority to indicate the established principle that where permission under Section 3 is obtained against the tenant, it suffices for eviction of the tenant and the sub-tenant derives no higher rights; but the Court declined to express a final opinion on these merits in view of the abatement issue.

Court's Reasoning and Analysis

The Court's analysis proceeded in these principal stages:

Substitution and Limitation: The Court recorded that Appellant No. 3 (Kedar Nath) died on 8-9-1955 and an application for substitution by his sons was filed on 1-10-1956 together with an application under Section 5 of the Limitation Act. This application under Section 5 was rejected because the delay was unexplained and the explanation offered (belief that appeal was not pending) was not credible. Consequently the substitution application was rejected as time-barred.
Preliminary Objection — Abatement: A preliminary objection was raised that the appeal had abated as to the deceased appellant and that this abatement affected the surviving appellants' right to prosecute the appeal. To resolve this the Court examined the interplay of Order XXII Rules 3 & 11 and Order XLI Rule 4 CPC and judicial authorities on the point.
Reliance on Full Bench Authority: The Court relied on the Full Bench decision in Baij Nath v. Ram Bharose (AIR 1953 All 565). That Full Bench had considered earlier decisions (including Ramphal Sahu v. Satdeo Jha) and held that where all parties had originally appealed and one appellant dies during the pendency of the appeal without legal representatives being brought on record, the appeal of the remaining appellants can be heard only if the surviving appellants' rights are not joint and indivisible with those of the deceased and if success would not lead to inconsistent decrees. The Full Bench further held Order XLI Rule 4 does not empower the appellate Court to set aside an abatement or to reverse or vary a decree which has become final against the deceased appellant.
Application to Facts: Applying those principles, the Court found that in the present case the rights and interests of the surviving appellants were joint and indivisible with those of the deceased appellant, and that success in the appeal would lead to two inconsistent and contradictory decrees. Moreover, any decision in favour of the surviving appellants would not enure to the benefit of the legal representatives of the deceased appellant. Therefore the appeal was deemed to have abated insofar as the deceased appellant was concerned and, for the stated reasons, could not be heard as to the surviving appellants.
Substantive Points Not Decided Because of Procedural Defect: Because of the abatement and the absence of substitution, the Court considered it unnecessary to express an opinion on substantive questions (for example, the correctness of the lower appellate Court's findings on date of subletting and collusion). The Court nevertheless referred to authorities (Makhan Lal and Ram Bharose v. Ajit Kumar) which had held that permission under Section 3 of the U.P. Act is to be obtained against the tenant and it suffices for eviction of both tenant and sub-tenant; a sub-tenant cannot have higher rights than the tenant-in-chief. The Court cited these authorities but did not resolve those substantive issues because the procedural defect precluded adjudication.

Holding and Implications

Holding: APPEAL DISMISSED.

Implications and immediate effects:

The appeal is deemed to have abated as to the deceased appellant (Kedar Nath) because his legal representatives were not brought on record within the time provided by law; the appeal cannot proceed as to the surviving appellants for the reasons stated (their rights were joint and indivisible and success would produce inconsistent decrees).
The Court did not decide the substantive dispute on the merits (e.g., timing of sub-tenancy or collusion) because of the procedural abatement.
The Court directed that Respondent No. 1 shall be entitled to his costs and refused leave to appeal.
The opinion does not purport to set any new legal principle beyond applying the Full Bench authority and existing precedents; the Court relied on prior authorities concerning abatement and on authorities about the operation of Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, but did not articulate a fresh rule that departs from those authorities.

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Rameshwar Prasad And Others v. M/S. Shyam Beharilal Jagannath Cloth Merchant And Another Opposite Party.

1. This is a plaintiffs' second appeal arising out of a suit for ejectment and rent in respect of House No. 49/19 situate in Generalganj in Kanpur. Messrs Manni Lal Beni Madho defendant No. 1 had been a tenant of the plaintiffs in this house on a monthly rent of Rs. 70/- per month. The tenancy had been from month to month beginning from the first of each Hindi calendar month. On the date of the suit, rent had fallen in arrears to the extent of Rs. 420/- and it had not been paid by defendant No. 1 in spite of demand. Defendant. No. 1 had led defendant No. 2, namely, Messrs Shyam Behari Lal Jagannath into occupation of the premises as a sub-tenant. The date when the sub-tenancy began was the subject of dispute between the parties. Whereas the plaintiffs had contended that the sub-tenancy began after the 1-10-1946 without their knowledge and consent, the defendants contended that the subtenancy began in August, 1946, with the permission of the plaintiffs. The question became important because of the restriction on eviction imposed by S. 3(i) of the U.P (Temporary) Control of Rent and Eviction Act, No. III of 1947. The plaintiffs had filed the suit after obtaining necessary permission of the Collector to evict defendant No. 1 from the premises, They contended that there was no privity of contract between them and defendant No. 2 and consequently defendant No. 2 was liable to eviction along with the other defendant.

2. Defendant No. 1 resisted the suit on the ground that the subletting was done with the permission of the plaintiffs; that defendant No. 1 offered rent to the plaintiffs but it was not accepted by them; that defendant No. 1 urgently requires the shop for his own personal use and he was taking necessary; steps to eject defendant No. 2 and that the suit has been instituted by the plaintiffs to bring undue influence upon him with a view to enhance the rent.

3. Defendant No. 2 pleaded that the subtenancy was created by defendant No. 1 in his favour on 2-8-1946, at Rs. 70/-; that on that date he gave defendant No. 1 a sum of Rs. 300/- with/a stipulation that defendant No. 1 would return the amount to him after a year; that defendant No. 2 has regularly been paying the rent to the principal tenant; that the suit was brought by the plaintiff in collusion with defendant No. 1 and that having regard to the provisions of the U.P (Temporary) Control of Rent and Eviction Act, 1947, he was not liable to be ejected.

4. The trial Court held that the Sub-tenancy was created subsequent to 1-10-1946, without the permission of the landlords, that defendant No. 1 committed wilful default in the payment of lent to the plaintiffs, that the plaintiffs having obtained necessary permission from the District Magistrate to eject defendant No. 1, the permission will act to operate against defendant No. 2 as well, that no notice of ejectment was necessary to defendant No. 2, and that the suit was a collusive, suit between the plaintiffs and defendant No. 1, that non-payment of rent by defendant No. 1 to plaintiffs will not annul the sub-tenancy, and that since the subletting was done subsequent to 1-10-1946, without the plaintiffs' permission, the defendant No. 2 was liable to ejectment. The trial Court decreed the suit for ejectment against both defendants and decreed the suit for rent against defendant No. 1 only. Defendant No. 1 submitted to that decree. Defendant No. 2 preferred an appeal (Civil Appeal No. 291 of 1951) before the lower appellate Court.

5. The lower appellate Court held that the subtenancy was created in August, 1946, and defendant No. 1 could not therefore be ejected on the ground given in S. 3(i)(e) of the U.P Rent Control and Eviction Act, No. III of 1947; that there was collusion between the plaintiffs and defendant No. 1; that defendants Nos. 1 and 2 could have been evicted on the basis of the notice of ejectment and on the basis of the permission to sue granted by the District Magistrate had there been no collusion, but since collusion vitiates all proceedings, Defendant No. 2 could not be ejected. The lower appellate Court accordingly modified the decree of the trial Court by refusing to eject defendant No. 2 and by holding that he, namely, defendant No. 2 stepped into the shoes of the principal tenant. The decree so far as it stood against defendant No. 1 was confirmed by the lower appellate Court. As against that decision this second appeal has been filed by the plaintiffs.

6. During the pendency of the appeal appellant No. 3, namely Kedar Nath died, his death having taken place on 8-9-1955. An application for substitution was made on 1-10-1956, by his two sons Bithal Das and Banarsi Das. The delay in making the application for substitution was said to be due to the belief that the appeal was not pending and had been decided. Along with the application for substitution another application under Section 5 of the Limitation Act had been made. That application was rejected on 1-5-1957, by this Court by the following order:

“Appellant No. 3 Kedar Nath is said to have died on 8-9-1955. An application for substitution was made on 1-10-1956.

7. The delay in making this application is said to be due to the belief that the appeal was not pending and has been decided. How the belief came to be entertained by the appellant himself has not been explained and it is difficult to accept the explanation in the absence of any details showing the basis for the belief that the appeal had been dismissed. In the circumstances it is not possible to accept the explanation offered or to condone the delay in making the application. The application is therefore rejected”.

8. The application under S. 5 having been dismissed, the application for substitution was also rejected on 1-5-1957, as having been made beyond time.

9. When the appellants came up before this Court a preliminary objection was taken to the effect that the appeal having abated so far as the deceased appellant Kedar Nath was concerned, it would affect the rights of the surviving appellant to prosecute their appeal. In order to determine this question, the scope and applicability of Or. XXII, Rr. 3 and 11, and Or. 41 R. 4 of the CPC have to be noticed. It appears that the question of the applicability of these provisions of the Code which had given rise to divergence of views between Courts in this country had been considered by a Full Bench of this Court in Baij Nath v. Ram Bharose, AIR 1953 All 565. In that case the previous decisions of this Court and others particularly the Full Bench decision of the Patna High Court in Ramphal Sahu v. Satdeo Jha, AIR 1940 Pat 346, which has been relied upon by the respondents had been considered and it was held that if in a suit a plaintiff makes a claim against a number of defendants on common grounds and all the defendants also contest the suit on common grounds and the suit is decided in favour of the plaintiff against all the defendants an appeal filed by all the defendants can be heard in favour of the remaining defendants after one of the appealing defendants has died during the pendency of the appeal and his legal representatives have not been brought on record so that his appeal has abated, only if the rights and interests of the surviving defendants were not joint and indivisible with those of the deceased defendant and in the event of the success of the appeal it does not lead to two inconsistent and contradictory decrees.

10. It was further held that while the appeal of the remaining defendants can be heard, the decision in it will not enure to the benefit of the legal representatives of deceased defendant-appellant. In the present case the appeal was filed by all the plaintiffs and one of them died during the pendency of the appeal and his legal representatives have not been brought on the record within the time provided by law so that his appeal has abated. The appeal filed by all the plaintiffs can therefore be heard in favour of the remaining plaintiffs only if the rights and interests of the surviving plaintiffs were not joint and indivisible with those of the deceased plaintiff and in the event of the success of the appeal; it does not lead to two inconsistent and contradictory decrees. Moreover, the decision in this appeal will not enure to the benefit of the legal representatives of the deceased plaintiff appellant.

11. In the present case the rights and interests of the surviving appellants were joint and indivisible with those of the deceased appellant. Furthermore, in the event of the success of the appeal it would lead to two inconsistent and contradictory decrees and the decision in it will not enure to the benefit of the legal representatives of the deceased plaintiff appellant. Consequently the appeal must be deemed to have abated so far as Kedar Nath the deceased appellant is concerned whose legal representatives have not been brought on record and the appeal so far as it concerns the other plaintiff appellants cannot be heard for reasons which I have already indicated above.

12. I may here mention that it would be unnecessary to consider all the cases which have been cited with reference to the provisions of Or. XXII, Rules 3 and 11 and Or. 41 R. 4 of the CPC by both sides, because those cases were considered by the Full Bench of this Court in AIR 1953 All 565 referred to above. This Full Bench observed:

“From the very wordings of Or. 41 R. 4 it would seem that this rule was intended to be applicable to only such cases where all the plaintiffs or defendants were alive and only one or more of ‘hem had cared to appeal from the decree. To go further than this would be to hold that Or. 41 R. 4 either overrides or creates an exception to Or. 22, Rules 3 and 11 and authorises the Court in effect to set aside an abatement and to reverse or vary a decree which has become final against the deceased appellant.

13. It is obvious that Or. XLI, R. 4 does not in express terms override Of. XXII, Rules 3 and 11. We cannot understand how it can be said that it overrides them by necessary implication. It is fair to assume that had the. Legislature intended that it should override the rules referred to above, it would have expressed itself in clear terms to that effect. On this part of the case we are unable to agree with the proposition that there is no difference in principle between a case where only some of the defendants have appealed and the case where all had originally appealed and one had died during the pendency of the appeal and no steps have been taken to bring the names of the heirs or personal representatives of the deceased appellant on to the record.”

14. The Full Bench further expressed its agreement with the statement of law, namely, that Or. XLI, R. 4 does not empower the appellate Court to set aside an abatement and to reverse or vary a decree which has become final against the deceased appellant.

15. Having regard to the facts and circumstances of the present case and applying the principles laid down by the Full Bench in AIR 1953 All 565, I am of opinion that Kedar Nath appellant No. 3 having died during the pendency of the appeal and his legal representatives not having been brought on record, the appeal has abated so far as Kedar Nath was concerned and since the, rights and interests of the surviving appellants were joint and indivisible with those of the deceased and in the event of the success of the appeal it would lead to two inconsistent and contradictory decrees, the appeal cannot be heard qua the surviving appellants. Nor can it be said that if the appeal of the surviving appellants is heard, the decision which may be reached in the favour after hearing such appeal will enure to the benefit of the legal representatives of the deceased plaintiff-appellant.

16. Section 3 of the U.P (Temporary) Control of Rent and Eviction Act, 1947, inter alia, provides that subject to any order passed under sub-sec. (3) of that section no suit shall, without the permission of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the grounds contained in that section. Ground (e) says that the tenant has on or after the first day of October 1946 sub-let the whole or any portion of the accommodation without the permission of the landlord. In the present case the lower appellate Court has found that the subletting was done by defendant No. 1 to defendant No. 2 prior to 1-10-1946, and therefore defendant No. 2 could not be ejected on the ground given in S. 3(e) of the Act.

17. The lower appellate Court further found that valid notice of ejectment was given to defendant No. 1 by the plaintiff terminating the tenancy at the end of the Hindi calendar month and defendants 1 and 2 could therefore be ejected on the basis of that notice; but since there was collusion between the plaintiffs and defendant No. 1 and collusion vitiates all proceedings, none of the defendants could be ejected, but as defendant No. 1 has not appealed against the decree of the trial Court and the decree of the trial Court therefore stood intact against him, defendant No. 1 stands ejected and defendant No. 2 continues to be tenant of the premises in suit.

18. It would be unnecessary for me to express any opinion on this part of the case because of the legal defect which has arisen in the hearing of the appeal in view of the death of one of the appellants and in view of his legal representatives not having been brought on record within the time provided by law. I may, however, refer to two decisions, the one in Makhan Lal v. Girdhari Lal, 1951 All LJ 671 : (AIR 1952 All 421) and the other in Ram Bharose v. Ajit Kumar, AIR 1952 All 806 in which it was laid down that the permission contemplated by Section 3 of the U.P (Temporary) Control of Rent and Eviction Act has to be obtained by the landlord against his tenant; and, therefore where the landlord proposes to evict a tenant and a sub-tenant both by a suit, (as in the present case) it is sufficient for him to obtain the permission under S. 3 of the Act as against the tenant only (as has been done in the present case), and he need-not obtain such permission against the sub-tenant also. It was further held that a subtenant can have no higher rights than those of the tenant-in-chief from whom he derives his title and that if the tenant becomes liable to eviction under the law, the sub-tenant cannot be allowed to continue in the accommodation. The net result is that the appeal has abated so far as Kedar Nath the deceased appellant No. 3 is concerned and the appeal qua the surviving appellants cannot proceed for reasons mentioned above and qua those appellants it is therefore dismissed. Respondent No. 1 shall be entitled to his costs. Leave to appeal is refused.

HC/K.S.B

19. Appeal dismissed.

Rameshwar Prasad And... v. M/S. Shyam Beharilal...