V.S Deshpande, J.:— Two important but independent questions arise in this appeal, one being of substance and the other of procedure.

The landlords who consist of respondents and one Ram Swarup deceased had filed a suit for eviction against the tenants who consist of the appellants under section 13 of the Delhi and Ajmer Rent Control Act, 1952 (hereinafter called the Act) on three grounds, namely: (i) subletting (ii) non-payment of rent, and (iii) the personal requirement of the landlords for the occupation of the premises. After the parties had closed their evidence, the statement of the counsel for the tenants was recorded by the Court as follows: —

(1) Decree for eviction and for arrears of rent be passed against the tenants in favour of the landlords.

(2) The personal requirement of the landlords was admitted by the tenants.

and (3) The tenants were to be granted time to vacate the premises till 31-3-1964.

The Court thereupon passed a decree in accordance with the statements of the parties only under proviso (e) to section 13 (1) of the Act, namely, on the ground that the premises were required bona fide by the landlords for their personal occupation. After enjoying the benefit of the decree, the tenants filed a suit on 1-4-1964 against the landlords for restraining them from executing the decree for eviction on the ground that the said decree was a nullity as it was passed only on the statements of the parties without the Court being satisfied that the premises were required bona fide by the landlords for their own occupation. The suit was decreed by the trial Court but was dismissed by the appellate Court. In this second appeal, the question of substance is whether the eviction of the tenants had been validly ordered by the Court on being satisfied on the admission of the counsel for the tenants in the light of the materials on record that the premises were required bona fide by the landlords for their personal requirement or whether the eviction was ordered merely because of a compromise between the parties.

The question of procedure arises as follows:

Sometime before the judgment of the lower appellate Court was delivered, one of the appellants namely Ram Swarup died. As the death was not brought to the notice of the lower appellate Court it passed a decree in favour of all the landlords including Ram Swarup. The tenants thereupon filed an appeal against all the tenants including Ram Swarup in this Court. But the death of Ram Swarup was brought to their notice and to the notice of the Court by the landlords in the second appeal. The tenant-appellants by an application dated 3-3-1971 contend as follows: Firstly as Ram Swarup had died before the lower appellate Court passed its decree, the lower appellate Court decision could not be said in law to be in favour of the deceased Ram Swarup. Further, the right to continue the appeal did not survive to the remaining appellants in the lower appellate Court. Secondly as Ram Swarup was not a party to the lower appellate Court decree, it is not necessary to bring his legal representatives on record either under Order XXII read with Order XLI or under section 153 of the Civil Procedure Code. Alternatively by other applications the appellants have contended that they were prevented by sufficient cause from doing so within time.

Let us examine the question relating to the substantive law first. Proviso (e) to section 13 (1) of the Act ran as follows: —

“13 (1) Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated):

Provided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery or possession if the court is satisfied: —

(e) that the premises let for residential purposes are required bona fide by the landlord who is the owner of such premises for occupation as a residence for himself or his family and that he has no other suitable accommodation”.

The Court could order the eviction of the tenants only if it was satisfied that the requirements of proviso (e) were fulfilled by the landlords. The decree for eviction against the tenants was binding on them unless and until the tenants got it set aside by the collateral proceeding of the suit filed by them. The burden of proof was, therefore, on the tenants to show that the decree for eviction was void. The various grounds specified in the provisos to section 13 (1) enable the Court to evict the tenants only if the Court was satisfied about the existence of any of them. The satisfaction of the Court as to the existence of a ground for eviction was a matter of public policy and, therefore, it was not open to the Court to pass a decree for eviction without being so satisfied merely because the parties agreed that such a decree should be passed. For, the tenants for whose protection the Act was passed could not just enter into some compromise with the landlords contrary to these statutory provisions and the landlords could not rest the validity of the decree for eviction on any implied waiver of the protection of the statute by the tenants. Even the validity of an express waiver of such protection has to be considered in each case on its own merits. But it was necessary for the tenants to allege and prove that the Court was not satisfied about the existence of the bona fide personal requirement of the landlords for the occupation of the premises within the meaning of proviso (e) to section 13 (1).

The pleading was very scrapy. It was simply stated that the landlords had sought eviction on three grounds none of which was admitted by the tenants and that the suit was not decided on merits but only on the statements of the parties by the Court without satisfying itself on merits. There was no pleading that any of the requirements of proviso (e) of section 13 (1) was not actually fulfilled by the landlords or that there was no material on record to show that it was so fulfilled or that the Court had not applied its mind and had not formed any conclusion that the said requirements had been fulfilled by the landlords. It was necessary, therefore, to determine whether “the Court was satisfied” within the meaning of proviso (e) to section 13 (1). The trial Court wrongly thought that the decree was based on compromise alone. The learned lower appellate Court has however fully discussed the question and came to the correct conclusion that the decree was based on the evidence on record and the admission made by the counsel for the tenants and not merely on a compromise. In considering such a question, it has been made clear by the successive pronouncements of the Supreme Court in Barium Chemicals v. The Company Law Board, (1966) Supp. S.C.R 311 (1); Rohtas Industries v. S.D Aggarwal, (1969) 3 S.C.R 108 (2), and Rampur Distillery Company Ltd., v. Company Law Board, (1970) 2 S.C.R 177 (3) that a mere statement by the authority concerned that it was satisfied would not be sufficient to prove such satisfaction. Conversely it may be said that even if the authority or the court concerned were not to say that it was satisfied still it is open for this Court to consider whether it was in fact so satisfied or not. The grounds on which the satisfaction was based have, therefore, to be shown to exist. But the sufficiency of the grounds is for the authority or the court concerned to decide. In the present case, the grounds on which the satisfaction on the Court under section 13 (1) (e) could be based were as follows: —

(1) There was evidence on record showing that the landlords wanted the premises for their own occupation bona fide.

(2) The counsel for the tenants expressly admitted the personal requirement of the landlords.

(3) The Court passed the decree for eviction in accordance with the statements of the parties. These statements included the admission made by the counsel for the tenants. This admission could be understood by the Court in the light of the evidence on record. The admission that the landlords required the premises for their personal occupation implied the further admission that the landlords were not in possession of a reasonably suitable residential accommodation for themselves. Had they been in possession of a reasonably suitable accommodation, then the tenants would not have admitted that the landlords required the premises for their personal occupation. The material, therefore, certainly existed from which the Court could be satisfied that the landlords had fulfilled the requirements of section 13 (1) (e).

(4) The application of the mind of the Court to the material on the record is proved by the fact that the Court passed the decree for eviction only on one of the three grounds on which the eviction was sought, namely, under proviso (e) of section 13 (1) only. By not passing the decree on the other two grounds, the Court disallowed those two grounds. All this could not be done if the Court had not applied its mind to the material on record.

There is a clear distinction between a decree on compromise and a decree based on merits. By its very nature a compromise excludes consideration of the merits of the case. Parties do not allow the merits of their contentions to be prejudiced but agree to a compromise for independent reasons. On the other hand, the decision on merits is arrived at after consideration of the pleadings and the evidence on record. An admission made by a party is conclusive whether it is contained in a pleading or in evidence. In the present case, the admission made by the counsel for the tenants stated that the personal requirement of the landlords was admitted by the tenants. This brief admission becomes pregnant in the light of the pleadings and the evidence on record. What we have to see is whether the grounds on which the satisfaction could be based existed or not. If they existed as they did in this case, the sufficiency of the grounds cannot be examined by us. It is clear to me that the decree for eviction was based not on compromise but on the admission of the counsel of the tenants understood in the light of the other material on the record by the Court. It was, therefore, valid.

This conclusion is fortified by the relevant three Supreme Court decisions. In Bahadur Singh and others v. Muni Subrat Dass and another (1969) 2 S.C.R 432 (4), the dispute between the landlord and the tenant was decided by an award. The Court merely accepted the award and passed a decree. It was obvious that the Court could not apply its mind to the question whether the circumstances allowing the eviction of the tenant existed or not. In Srimathi Kaushalya Devi & Others v. Shri K.L Bansal , 1969 R.C.R 703 (5), the application by the parties merely stated the terms of the compromise. There was no admission by the defendant of any of the grounds on which the plaintiff could evict him. In Ferozi Lal Jain v. Man Mal and another, 1970 R.C.R 375 (6), Hegde J. was particular to point out that:— (1) “the compromise petition does not make any reference to the alleged sub-lease”. The ground alleged by the landlord for eviction was the alleged sub-lease by the tenant. This ground was not admitted by the tenant. (2) “At no stage the Court was called upon to apply its mind to the question whether the alleged subletting is true or not. Order made by it does not show that it was satisfied that the subletting complained of has taken place, nor is there any other material on record to show that it was so satisfied”. In the above respects the facts in these Supreme Court decisions were different from the facts of the present case inasmuch as the decrees therein were based on compromise and not on admission or on the material on record as in the present case. This explains the different conclusion at which I have arrived at in this case.

The question of procedural law has raised some tantalizing problems. Firstly what was the effect of the death of Ram Swarup before the decree of the first appellate Court was passed ? One short answer is provided by Order XXII rule 3 of the Civil Procedure Code (hereinafter called the Code) as applied to appeals by rule 11 thereof. Under section 306 of the Succession Act all demands whatsoever and all rights to prosecute or defend any action or special proceedings existing in favour of or against a person at the time of his death, survive to and against his executors or administrators. The only exceptions to this rule are causes of action for defamation, assault, or other personal injuries not causing the death of the party and also cases where, after the death of the party, the relief sought by him cannot be enjoyed or granting it would be nugatory. The decree for eviction obtained by the landlords was a right which survived to the legal representatives of Ram Swarup after his death. Therefore, the right of Ram Swarup to continue the appeal in the first appellate Court against the decree of the trial Court setting aside the decree for eviction also survived to his legal representative along with the other landlords who were the co-appellants within the meaning of rule 3 (1) of Order XXII. Under rule 3 (2) it is only when no application is made within ninety days for bringing the legal representative of Ram Swarup on record that the appeal could abate as regards Ram Swarup alone. In the present case, there is absolutely nothing to show as to whether Ram Swarup died more than ninety days before the judgment of the first appellate Court was delivered. There is nothing to show, therefore, that the appeal abated in respect of Ram Swarup.

If the appeal did not abate even in respect of Ram Swarup, was the first appellate Court competent to pass a decree in favour of all the appellants including the deceased Ram Swarup ? I am not aware of any provision of law which bars a Court from passing a decree in favour of a person just because he is dead. On the contrary, rule 6 of Order XXII of the Code expressly provides that the death of a party after the conclusion of the hearing but before the pronouncement of the judgment has no effect whatsoever on the validity of the judgment. There is no inherent lack of jurisdiction in the Court, therefore, to pass a decree because of the death of a party. The reason is that “in the great majority of cases, however, death destroys merely the ownership of a proprietary right and not the right itself. The rights which a dead man thus leaves behind him vest in his representative. . . Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man. . . To this extent, it may be said that the legal personality of a man survives his natural personality”. (Salmond on Jurisprudence, Ninth Edition, page 624). The same theme is developed in Lecture X of Holmes on Common Law.)

Originally under the English Common Law, the death of a plaintiff or a defendant resulted in the abatement of the cause of action. But the provisions of the Indian Succession Act and the Civil Procedure Code referred to above changed this rule in India. The rule has since then been also abolished in England. In the United States, “the great preponderance of authority is to the effect that, where the Court has acquired jurisdiction of the subject-matter and the persons during the lifetime of a party, a judgment rendered against him after his death is, although erroneous and liable to be set aside, not void nor open to collateral attack.” (Black on Judgments, section 200, page 294 cited in Goda Coopooramier v. Soondarammall, ILR 33 Madras 167 D.B) (7). The same principle is expressed as follows in 46 American Jurisprudence (2nd Edition) 325 at the end of paragraph 18: —

“In a proper case, the courts may indulge in a presumption that before the rendition of judgment the parties had a day in court. Moreover, the mere fact that a judgment is rendered in the absence of a party does not render it invalid”.

Secondly the principle underlying the validity of a judgment is as stated in Order XX rule 1 of the Code that a case can be decided on merits only after hearing the parties. A judgment without hearing would, therefore, not bind a party against whom it is passed. For, that party is likely to be prejudiced by the lack of hearing. This is why it is often said that the decree against a dead man is a nullity. In M. Subramania Aiyar v. Vaithinatha Aiyar, ILR 38 Madras 682 (8), a decree against the dead person was held to be void by a learned Single Judge who distinguished Goda Coopooramier's (7) case cited above (holding a decree in favour of a dead man as valid) by the following observation: —

“It is not clear that the decision would have been the same, if a decree against a defendant had been in question”.

But the words “void” or “nullity” only mean that such a judgment is liable to be set aside at the instance of the person affected. When an executing court, for instance, refuses to execute a decree which has been passed against a dead man it merely decides that such a decree is inexecutable. Until such a decision is given by a court, the decree was valid. In Smith v. East Elloe Rural District Council (1956) Appeal Cases 736 (9), the majority held that a compulsory purchase order made on fraudulent grounds was unchallengeable after the statutory six weeks because the Act provided that thereafter “it shall not be questioned”. Lord Radcliffe said:— “At one time the argument was shaped into the form of saying that an order made in bad faith was in law a nullity. . . But this argument is in reality a play on the meaning of the word ‘nullity’. An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders”. Professor H.W.R Wade takes this argument further in 83 Law Quarterly Review 499 at pages 514, 515 and 516 and observes: —

“What if the order does bear a brand of invalidity upon its forehead ? It may well be, though this is one of the uncertainties “left by the House of Lords, that in that case it could be challenged even after the six weeks, and that it was with this in mind that Lord Radcliff made the reservation. But apart from this, is there any difference between latent and patent invalidity ? . . . that words such as ‘void’ and ‘nullity’ are legally meaningless except in the context of an actual or assumed decision of a court. . . The reason is simply that no disputed act of a public authority can safely be treated as void in law unless the court can be persuaded to condemn it.”

The same view is expressed by Kelsen in his General Theory of Law and State, p. 161 as follows:

“The decision made by the competent authority that something that presents itself as a norm is null ab initio . . . is a constitutive act; it has a definite legal effect; without and prior to this act the phenomenon in question cannot be considered to be null. Hence, the decision is not ‘declaratory’, that is to say, it is not, as it presents itself, a declaration of nullity; it is a true annulment, an annulment with retroactive force. There must be something legally existing to which this decision refers. Hence, the phenomenon in question cannot be something null ab initio, that is to say, legally nothing”.

Even when a defendant or a respondent dies before the trial Court or the appellate Court decides a suit or an appeal, the decision is not necessarily invalidated. (Tota Ram and others v. Kundan and others, AIR 1928 Lahore 784 (10); and Ram Kishan v. Kartar Singh and others, AIR 1969 Punjab & Haryana 214) (11). These decisions reiterate that a judgment becomes invalid only if it is given against a person who is not heard. But it would be redundant to revoke a judgment if the defendant or the respondent against whom it is given has been fully heard. If a person is prejudiced by lack of hearing then such a judgment can be set aside at his instance or at the instance of the legal representatives. Unless this is done the judgment remains valid. (Birbal and others v. Harlal Sadasukh and others, AIR 1953 Punjab 252) (12). None was prejudiced by the judgment of the lower appellate Court being in favour of Ram Swarup.

Under Order XLI rule 4 of the Code, only some of the appellants could have filed the appeal in the first appellate Court without joining Ram Swarup as an appellant. If Ram Swarup had not joined in filing the appeal, his death would not have been material even if he was not served as a co-respondent or his legal representative was not brought on record if he died as a co-respondent. (Mahabir Prasad v. Jage Ram and others 1971 (1) SCC 265 (13), Ratan Lal Shah v. Firm Lalmandas Chhadammalal and another, 1970 (1) Supreme Court Reports 296 (14), and Karam Singh Sobti and another v. Sri Pratap Chand and another, AIR 1964 Supreme Court 1305) (15). This would further prove that there is no inherent want of jurisdiction in the Court in passing a decree in favour of some appellants for the benefit of all of them. Of course the appeal in the lower appellate Court was filed by all the landlords including Ram Swarup. Had it been proved that Ram Swarup died more than ninety days before the judgment was delivered by the first appellate Court, the appeal would have abated as regards Ram Swarup. The first appellate Court would then have been required to consider the question whether the appeal could be prosecuted by the remaining appellants or whether they could not do so without joining the legal representative of Ram Swarup as a co-appellant. If such legal representative was not brought on record and if the Court took the view that the appeal could not proceed further in his absence then the Court could have decided to dismiss the appeal. There is no such thing as an abatement of the whole appeal on the death of one of the appellants. An order of the Court dismissing the appeal is required if the appeal is to become infructuous by the death of one of the appellants. (Rameshwar Prasad and others v. M/s Shyam Beharilal Jagannath and others, 1964) 3 S.C.R 549 (16), State Of Punjab v. Nathu Ram, (1962) 2 S.C.R 636 (17), and Swaran Singh Puran Singh etc. v. Ramditta Badhawa and others, AIR 1969 Punjab & Haryana 216) (18). It is to be noted that the first appellate Court did not decide either that the appeal could not proceed without the legal representative of Ram Swarup or that a decree could not be passed in favour of all the appellants including Ram Swarup. Therefore, it had no occasion to dismiss the appeal. For the same reason it did not lack inherent jurisdiction to pass a decree in favour of the appellants including Ram Swarup.

In a different context, their Lordships of the Supreme Court had to consider the question whether an act done in breach of a mandatory provision is necessarily a nullity (Dhirendra Nath Gorai v. Sudhir Chandra Ghosh and others, (1964) 6 S.C.R 1001 at pages 1011 and 1012 (19). Their Lordships approved the following test laid down by Justice Coleridge in Holmes v. Russell (1841) 9 Dowl 487 (20): —

“It is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity; if he cannot, it is a nullity”.

Their Lordships then quoted with approval the following from “Craies on Statute Law” 6th Edn. at p. 269: —

“As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable and either party may waive them without affecting the jurisdiction of the court”.

The conclusion is that the decree passed by the lower appellate Court was valid not only in favour of the living landlords but also in favour of Ram Swamp who had died before the decree. The second appeal had to be filed, therefore, not only against the living landlords but also against the legal representative of Ram Swarup. The second appeal was filed against the living landlords and Ram Swarup. As Ram Swarup had died before the institution of the appeal, Order XXII of the Code did not apply. The proper procedure for the tenants was to amend the memorandum of appeal under section 153 of the code by showing the legal representative of Ram Swarup as a respondent in place of the deceased Ram Swarup. (Adusumilli Gopalakrishnayya and another v. Adivi Lakshmana Rao, 1925 Madras 1210 F.B (21), and Bank of Commerce Ltd. v. Protab Chandra Ghose and others, AIR 1946 Federal Court 13) (22). This is laid down in paragraph 4 of Chapter 1-C, Volume v. of the Rules and Orders of the High Court which is as follows: —

“Whenever, after a memorandum of appeal has been presented to the High Court, any appellant or any party interested in the maintenance of any objection filed in the appeal under Order XLI rule 22 or 26 of the Code of Civil Procedure first ascertains that a person, whose name appears in the memorandum of appeal as that of a party to the appeal, and who, if alive, would be a necessary party to such appeal or objection, had died before the memorandum of appeal was presented to the High Court or admitted, such appellant or party so interested as aforesaid may, but subject to the law of limitation, apply for an order that the memorandum of appeal be amended by substituting for the person, who has so died as aforesaid, his legal representative, if at the time when he presents such application, he along with such application, except as hereinafter provided, presents for filing an affidavit showing that such application is made with all reasonable diligence after the fact of the death of such person first came to the knowledge of such applicant or the agent, if any, acting on his behalf in the litigation, provided that a Judge of the High Court may, by an order, allow in his discretion a reasonable time in that behalf for the presentation of such affidavit, if it appears to him that the applicant could not by the exercise of due diligence have procured such affidavit in time for presentation along with the application”.

The amendment substituting the legal representative of Ram Swarup in place of the deceased Ram Swarup was a substitution of a party within the meaning of Order I rule 10 of the Code. Such substitution is subject to section 21 of the Limitation Act, 1963 (corresponding to section 22 of the Limitation Act, 1877). What is the effect ? There was only one appeal to be filed by the tenants. The tenants could not file one appeal against the living landlords within the period of limitation and another appeal against the legal representative of Ram Swarup after the expiry of limitation. The result is that the appeal as a whole against the living landlords and the legal representative of the deceased Ram Swarup will be deemed to be filed only when the application for the substitution of the legal representative of the deceased Ram Swarup is made by the appellants or rather when the notice is served on the said legal representative.

The period of limitation for filing the appeal expired on 21-11-1966. The appeal filed before that date against the deceased Ram Swarup and the other living landlords was incompetent. When the notice to Ram Swarup came back unserved due to his death, the office of this Court wrote to the appellants on 18-11-1966 that Ram Swarup had died. The appellants made enquiries and came to know that Ram Swarup had died even before the lower appellate Court had delivered its judgment under appeal. The appellants stated in C.M 149 of 1967 that the only legal representatives and heirs which Ram Swarup had left behind were the co-respondents who were already on record. This statement was untrue. The application was allowed ex parte by the Court subject to just exceptions. On 24-11-1969, the respondents filed C.M 1294 of 1969 stating that the legal representatives of Ram Swarup had not been brought on record. On 18-12-1969 C.M 1294 of 1969 was withdrawn by the respondents but the statement of Shri Rameshwar Dayal, learned counsel for the respondents, was recorded by Rangarajan J. to the effect that the mother of Ram Swarup was his legal representative. Shri B.N Kirpal, for the appellants, stated that he had no objection to implead her also if particulars were given. The appellants were ill advised in not joining the mother of the deceased Ram Swarup as his legal representative immediately after they learnt about Ram Swarup's death particularly after 24-11-1969 and 18-12-1969 when they were told that the legal representative of Ram Swarup should be brought on record and that his mother was his legal representative.

On 4-3-1970 by C.M 331 of 1970 the respondents again stated that the sole heir and legal representative of the deceased Ram Swarup was his mother Smt. Chameli Devi. Even then the appellants continued to be negligent. It is only on 6-1-1971 that they made two applications under Order XXII rules 3 and 4 of the Code and under section 5 of the Limitation Act for the substitution of Chameli Devi in place of Ram Swarup. They were doing so obviously long after the limitation had expired. Under section 5 of the Limitation Act, they were required to explain every day of delay. They stated that after 18-12-1969 they made enquiries from the Municipal Corporation but found that the name of Ram Swarup's mother had not been shown as being one of the owners of the premises but on enquiries from Income-tax department they found Chameli Devi to be his legal representative. They had not the least justification for making any enquiries either in the Municipal Corporation or in the Income-tax department when the learned counsel for the respondents made a statement before the Court that the mother of Ram Swarup was his legal representative and when on 4-3-1970 they stated even the name of the mother in C.M 331 of 1970. The inordinate delay has not, therefore, been explained at all. The result is that the appeal against the present respondents and the legal representative of Ram Swarup cannot be said to have been filed till the application for the substitution of the mother of Ram Swarup was made by the appellants on 6-1-1971. The institution of the appeal must, therefore, be deemed to have been made long after the expiry of the period of limitation and without the appellants being prevented by sufficient cause from filing the appeal within time. The appeal must thus fail on the ground of limitation.

As the decree for eviction was valid and the appellants have not explained the delay in instituting this appeal beyond the period of limitation, the appeal is dismissed with costs.

Appeal dismissed.