1. The landlord Gurbaskh Singh filed a petition for eviction of the tenant Mangal Chand. An order for eviction in respect of a part of the premises was passed by the Controller under Section 14(1)(h) of the Delhi Rent Control Act, 1958 (hereinafter called the Act). The tenant appealed to the Rent Control Tribunal against the order of eviction from a part of the premises and the landlord filed cross-objections against the dismissal of the petition for eviction in respect of the rest of the premises. But both the appeal and the cross-objections were dismissed by the Tribunal. The tenant thereupon filed this second appeal against the order of eviction of a part of the premises and the landlord filed cross-objections against the dismissal of his eviction petition in respect of the rest of the premises.

2. During the pendency of these proceedings the landlord terminated the contractual tenancy of the tenant by a notice to quit with the effect that the tenant became what is popularly called only a statutory tenant. As observed by the Supreme Court in Anand Nivas Pvt. Ltd. v. Anandji Kalyanji's Pedhi, AIR 1965 SC 414, however, such a person is not a tenant at all. He has no estate or interest in the premises. He has only a right to remain in possession due to the protection given by the Delhi Rent Control Act, 1958. But this statutory protection is personal to him. When he dies, neither any right or interest in the demised premises nor the statutory protection is inherited by his legal representatives. As pointed out by us in Batoo Mal v. Rameshwar Nath, AIR 1971 Delhi 98, the landlord is ordinarily bound to terminate the contractual tenancy of the tenant before he files an application for his eviction under the Act. But if he does not do so, it is for the tenant to object to the maintainability of the eviction petition on that ground. If the tenant fails to do so then the said objection is deemed to have been waived by the tenant. The position then is that the eviction petition of the landlord is maintainable but the contractual tenancy comes to an end when an order for eviction is passed against the tenant. For, according to the definition of “tenant” in Section 2(1) of the Act, a person against whom an order for eviction is passed ceases to be a tenant. This rule is, however, subject to the possibility that the order of eviction may be reversed in appeal. In that event the status of a tenant will be restored. Otherwise, the tenant would become a statutory tenant only. Another way to terminate the contractual tenancy of the tenant is to give him a notice to quit under Section 106 of the Transfer of Property Act if the tenancy in Delhi originated after 1-12-1962. If the tenancy commenced from before that date then only a reasonable notice is necessary to terminate the tenancy. The contractual tenancy can be terminated by the landlord at his will at any time. The landlord in the present case terminated the contractual tenancy of the tenant by a notice to quit during the pendency of the eviction proceedings. The effect of the notice to quit is however, the same whether it is given before the institution of these proceedings or during the pendency of these proceedings. The tenancy was, therefore, terminated before the death of the tenant. At the time of his death Shri Mangal Chand was only a statutory tenant.

3. Shri Mangal Chand died after Instituting this second appeal. The question for decision is whether this second appeal and the cross-objections both abate on his death. Effects of the death of a statutory tenant may be classified as below:

I. The death before an order for eviction is passed.

4. At this stage the only right in the petitioner landlord is to evict the statutory tenant from the premises by proving that the landlord is entitled to do so under the provisions of the Act. The only reason why the landlord has to file the eviction petition under the Act before a Controller is that a relationship of landlord and tenant existed between, Gurbaksh Singh and Mangal Chand even though by the termination of the contractual tenancy Mangal Chand became only a statutory tenant. The Controller under the Act has the exclusive jurisdiction to decide whether an order for eviction should be passed at the instance of the landlord against a tenant or a statutory tenant. If on the other hand either the parties are agreed that there is no relationship between them of the landlord and the tenant or if the Controller finds that there is no such relationship between them then the petition is not competent under the Act and the Controller would have no jurisdiction to try it and the remedy of the landlord would be to file a suit in a civil court on the basis of the title or on some basis other than that of the rela ionship between the landlord and a tenant.

5. Therefore, if the tenant or the statutory tenant dies before an order for eviction is passed by the Controller under the Act, the results would vary according as Shri Mangal Chand was a tenant or only a statutory tenant on his death. If he had been a tenant then his tenancy was heritable by his legal representatives. The right of the landlord for eviction, therefore, would have survived against the legal representatives of the deceased and the proceedings would have continued. If on the other hand Mangal Chand had died as a statutory tenant before an order for eviction has been passed then the legal representatives of Mangal Chand would not have inherited either the tenancy or the statutory protection which was confined to Mangal Chand alone which could not be inherited by his legal representatives. There will be no relationship of a landlord and a tenant or a statutory tenant between Gurbaksh Singh and the legal representatives of the deceased Mangal Chand. The application for eviction would have abated on the death of Mangal Chand in accordance with the principle of Rule 4 of Order 22 of the CPC which is applicable to a proceeding under the Act by virtue of Section 37(2) of the Act and Rule 23 of the Rules framed under the Act.

6. The application for eviction by the landlord succeeded only regarding a part of the premises. It was dismissed regarding the rest of the premises. The cross-objections by the landlord relate to that part of the premises regarding which the application had been dismissed. In respect of that portion the legal position is as if the landlord is still pursuing the application for eviction without obtaining an order for eviction. The application for eviction by the landlord was maintainable only against a tenant or a statutory tenant before the Controller under the Act. It is not maintainable against the legal representatives of the statutory tenants as there is no relationship of landlord and tenant between Gurbaksh Singh and them. Secondly, the legal representatives of Mangal Chand have not inherited either the tenancy or the statutory protection in respect of that part of the premises regarding which the application for eviction has been dismissed.

7. With regard to them, therefore, the only remedy of the landlord is to file a suit in a civil court for possession against the legal representatives of Mangal Chand on the basis of title or on some basis other than that of relationship between a landlord and a tenant or a statutory tenant. The cross-objections of the landlord regarding that portion of the premises have, therefore, become incompetent under the Act. They are, therefore, dismissed as having abated on the death of Mangal Chand, so far as the forum under the Act is concerned. The forum of the civil court is still open to the landlord.

II. After the order for eviction has been passed.

8. If the tenant had died after the eviction order was passed against him but before any appeal had been filed by him then the right of the landlord at that stage was not the original right of filing an application for eviction against a statutory tenant but rather the subsequent right obtained by the landlord and embodied in the order of eviction obtained by him against the tenant. This right to execute the order of eviction is different in quality from the original right of making is an application for eviction. Therefore, the right to execute the order of eviction survives the death of the statutory tenant against his legal representatives on the principle embodied in Rule 4 of Order 22 of the CPC. For the legal representatives represent the estate of the deceased statutory tenant. They do so merely because they are his heirs at law and not because they are in possession of any assets left by him and still less because they have inherited either the tenancy or the statutory protection in the premises in respect of which an order for eviction has been passed. Therefore, they do not cease to be the legal representatives of the deceased statutory tenant merely because the statutory protection died with the statutory tenant and did not devolve on his legal representatives.

9. Learned counsel for the legal representatives who desired to come on record as appellants to prosecute the second appeal, has, however, argued that the filing of an appeal by Mangal Chand changed the legal position. He says that the right of the statutory tenant to pursue the appeal with a view to get the order of eviction set aside survives to his legal representatives. The question as to what right of the statutory tenant survives when he dies during the pendency of an appeal by him against an order for eviction has to be decided with reference to the principle embodied in Rule 3 of Order 22 of the CPC. According to Rule 11 of Order 22 during an appeal the word ‘plaintiff’ shall be held to include an appellant and the word ‘defendant’ shall be held to include respondent. Shri Mangal Chand being the appellant was therefore, in the position of the plaintiff or the petitioner.

10. His legal representatives have, therefore, to show that the right to sue survived the death of Mangal Chand and they are, therefore, entitled to, be brought on record as appellants following the principle of Rule 3 of Order 22. What is a right to sue is not a question of procedure but is dependent on the substantive law. The right to sue arises from a cause of action. The nature of a cause of action is determined by the substantive law giving rise to it. The relationship between Gurbaksh Singh and Mangal Chand was that of a landlord and a tenant. It was, therefore, partly contractual and partly that of a transferor and transferee of property. The rule regarding the devolution of contractual rights is laid down in Section 37 of the Contract Act which runs as follows:

“Promises bind the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract.”

11. This means that the rights under a contract are heritable unless they are restricted personally to the contracting party. The rights of a tenant in their contractual aspect were not personal to the tenant to start with. But when the contractual tenancy was terminated by a notice to quit the contract came to an end. Mangal Chand did not therefore, possess any contractual right after the tenancy was terminated. It follows, therefore, that on his death no contractual right devolved on his legal representatives.

12. Considered as property the rights of tenancy were originally heritable by the legal representatives of Mangal Chand, but the termination of the contractual tenancy resulted in the loss of tenancy rights. Thereafter only the statutory protection ensured the possession of the premises by Mangal Chand. But the right of possession was restricted to Mangal Chand. On his death, therefore, his legal representatives did not inherit either the right of possession or the right of tenancy. The result is that on the death of Mangal Chand the right to sue did not survive and his legal representatives were not entitled to be brought on the record under Rule 3 of Order 22 to prosecute this second appeal. It is to be noted that even outside the domain of the Contract and property the same principle applies to the survival of other demands such as, claims for damages etc. in view of Section 306 of the Indian Succession Act, 1925. It is true that in terms it deals with executors and administrators but the principle of Section 306 would be equally applicable to heirs at law.

13. On the death of Mangal Chand, therefore, the second appeal which had been filed by him abates under Rule 3 of Order 22 of the CPC. The result is that the order for eviction in respect of a part of the premises passed by the Controller and confirmed in appeal by the Rent Control Tribunal becomes final. The rights of the landlord spring from the order of eviction alone. The landlord is entitled to execute the order of eviction against the legal representatives of the deceased-judgment-debtor. The reason is that the legal representatives represent the estate of the deceased judgment-debtor. It is of no consequence that part of the premises against which the order for eviction has been passed are not included in the estate of the deceased. In fact it is not necessary that the deceased should have left any estate whatever. The order for eviction as in any litigation must have at least two parties. It cannot have only one party. Therefore, the decree has to be executed in respect of the property covered by it against some person. It cannot be executed merely against the property without the joinder of some parties to represent the deceased judgment-debtor. It is only to satisfy this legal requirement that the order for eviction is executable against the legal representatives and not because they have any interest or claim to this part of the premises.

14. To complete the statement of law it may be mentioned that in so far, as the application for eviction by the landlord was dismissed, the cross-objections filed by him are like an appeal filed by the plaintiff against the dismissal of his suit in respect of that portion of the premises for which the landlord was unsuccessful in obtaining an order for eviction. The death of the statutory tenant means that the right to sue by the landlord did not survive the death of the statutory tenant and came to an end. The cross-objections by the landlord, therefore, abated as no order for eviction has been passed in favour of the landlord in respect of the remaining part of the premises.

15. The landlord has to pursue his remedy in respect of them in a civil court. The forum under the Act is barred to him because there is no relationship of a landlord and a tenant or a statutory tenant between him and the legal representatives of Mangal Chand.

16. The appeal and the cross-objections are, therefore, both dismissed as having abated on the death of Mangal Chand during the pendency of the appeal and the cross-objections. There will be no order as to costs.

17. Appeal and cross-objections dismissed.