Shri Kedar Nath & Another v. Smt. Mohani Devi Etc. S

P.N Khanna, J.:— The main question that has arisen in these two Second Appeals from Orders Nos. 6 and 54 of 1968 is: Can the proceeding under the Delhi Rent Control Act, 1958, herein called ‘the 1958 Act’, initiated for the eviction of a tenant, after terminating his contractual tenancy, be continued after his death; and eviction order passed against his legal representatives?

Shri Kedar Nath, the predecessor-in-interest of the present appellants in both appeals, filed two separate eviction applications, under section 14 of the 1958 Act, against his tenants, who held two separate premises on lease under him. The contractual tenancies in both cases, had been terminated earlier, by service of notices to quit. In one proceeding, which has given rise to SAO 6 of 1968, the tenant was Naubat Ram, and the grounds on which eviction was sought were non-payment of arrears of rent, after service of notice of demand referred to in clause (a) of the proviso to section 14 (1) of the 1958 Act, subletting without landlord's consent [clause (b) of the said proviso] and misuser of the premises [clause (c) of the proviso]. In the other which has given rise to SAO 54 of 1968, the tenants were Prabhu Dayal and Mamman Lal, and the grounds for eviction besides the aforesaid three grounds, were non-residence of the tenant in the premises [clause (d) of the proviso] and substantial damage to the premises [clause (j) of the proviso]. The tenants in both the premises died while proceedings were pending before the Additional Controller. Their legal representatives, who did not dispute their character as such, were brought on record and amended petitions were filed. In proceeding against Prabhu Dayal and Mamman Lal, (SAO 54 of 1968), besides four legal representatives of the deceased, three sub-tenants were also impleaded as respondents Nos. 5 to 7.

In the amended petitions, it was further contended that the legal representatives of the deceased tenants had not inherited the tenancy rights, because the tenancies were “statutory” and personal to the tenants in nature; and the legal representatives had, therefore, no right to remain in possession. The Additional Controller was of the view that as the relationship of landlord and tenant was no longer alleged to subsist between the parties, the petitions were not maintainable under the 1958 Act. He, therefore, dismissed both the petitions. The Rent Control Tribunal concurred with his views, further holding that the right to sue did not survive and dismissed the appeals. It was against the orders of the Tribunal that these two second appeals were filed in this court by Shri Kedar Nath, the landlord.

While the appeals were pending, Kedar Nath died on April 10, 1971. On August 20, 1971 two applications were filed by his legal representatives in each of the two appeals to have the abatement of appeals set aside, and to be impleaded in his place and for condonation of delay in filing the applications. S.N Shanker J. before whom these applications came up, referred both appeals to a larger bench, as he found divergence of views of this court on the question of the applicability of the Limitation Act, 1963 to such applications. The matter came up before a Bench consisting of S.N Andley C.J and T.P.S Chawla J., who allowed the applications and brought the legal representatives, hereinafter collectively referred to as “the landlord”, on record. On merits they noticed that similar questions had been referred for decision to a larger Bench in another appeal. They, therefore, directed these two appeals to be placed before the same Bench, which was to hear the other appeal. The matters came up before a Division Bench, consisting of S.N Andley C.J, and S.N Shankar J. They noticed that in one of the appeals, the sub-tenants were parties to the eviction petition, along with the legal representatives of the deceased tenants. Reliance was placed on behalf of the appellant landlord on South Asia Industries Private Limited v. Sarup Singh and others, AIR 1966 SC 346 (1). It was contended that some of the observations in the Full Bench decision of this court dated April 5, 1973 in K.G Malhotra v. Vijay Kumar, ESA 2 of 1971, (IA) were irreconcilable with the majority opinion in the said judgment of the Supreme Court. As the said judgment had neither been cited nor considered by the Full Bench in K.G Malhotra's case, the Division Bench directed these two appeals to be placed before the same Full Bench. The appeals then came up before the said Full Bench consisting of Andley C.J, S.N Shankar and V.S Deshpande JJ. If was urged on behalf of the appellants that the decision in K.G Malhotra's case required reconsideration in view of the Supreme Court judgment in the case of South Asia Industries Private Limited. It was for this reason that these appeals have been placed before this larger Bench.

It may be pointed out that in the case of K.G Malhotra, (supra) the eviction had been claimed under the Delhi and Ajmer Rent Control Act, 1952. But the said Act had been repealed. As most of the cases coming up before this court were being heard under the 1958 Act, it was considered useful by the Full Bench to examine the questions involved in relation to the 1958 Act also. It was under these circumstances that provisions of the 1958 act were examined and opinion expressed in relation thereto.

Mr. T.C.B.M Lal, the learned counsel for the appellant landlord has raised two main contentions before us:

(1) that the duty of the tenant on the determination of the lease to put the lessor into possession of the property devolves, on the tenant's death, on his Legal representatives and the landlord's right to get back possession is not affected in any way by the death of the tenant. The right to sue on the basis of the tenancy which has been determined, survives in favour of the landlord against the tenant's legal representatives; and

(2) that the jurisdiction of the Controller to entertain, proceed with and finally dispose of the proceedings, which were initiated before him by the landlord is not affected by the death of the tenant during its pendency.

According to him, the conclusions drawn in K.G Malhotra's case, which were relied upon by the legal representatives of the deceased tenants, against the landlord's claim, both before the Division Bench and the Full Bench and now before us, require reconsideration as they came in conflict with the majority view expressed by the Supreme Court in the case of South Asia Industries (supra). In the latter case, the Supreme Court was of the view that it was not the tenant alone against whom an order could be passed by the Controller for recovery of possession of the premises. Orders could be passed against “all persons in occupation”. The judgment of the Supreme Court, therefore, indicated that there was nothing to prevent an order for recovery of possession being passed against the legal representatives. We will examine this judgment in greater detail a little later. We would first deal with the judgment of the Full Bench in K.G Malhotra's case (supra), which according to Mr. H.K.L Subharwal, the learned counsel appearing as amicus curiae, on behalf of the respondents, in no way comes in conflict with the views expressed by the Supreme Court and lays down the correct law.

V.S Deshpande J., who spoke for the Full Bench in that case was of the view that if eviction was claimed in a suit in any ordinary court under the Delhi and Ajmer Rent Control Act, 1952, then on the death of the tenant, “the suit, though triable by the same Court, would change from a suit based on tenancy to a suit based on title”. But on the death of a statutory tenant, an “application for eviction under section 14 of the 1958 Act would not proceed further”. The landlord would have to file a separate suit based on title in a court having general jurisdiction, as the legal representatives do not inherit the tenancy or the statutory protection. The learned Judge, then considered the question as to how an application under section 14 (1) of the 1958 Act, was to proceed on the death of the tenant and concluded:

“The landlord may not apply within the prescribed time to bring the legal representatives on record. In such a case, the application abates as provided by order 22. But, if the landlord makes an application to bring the legal representatives on the record, they will have to be brought on the record as the right to sue survives . . . . . if the legal representatives plead an independent title, then also the Controller would have to dismiss the petition for lack of jurisdiction to inquire into the independent title. On the other hand, if the legal representatives admit that the deceased tenant was a statutory tenant and have no defence to make except such defence as was personal to the deceased tenant, then though the general right to sue survives to the landlord to pursue his remedy on the basis of title in a civil court, the right to pursue the application under the 1958 Act does not survive and the Controller has to terminate the proceedings . . . . .. This does not mean that a subsequent suit on the same cause of action could not be filed, as would happen after the abatement of a suit under the Civil Procedure Code. On the contrary, the landlord would have a right to file a suit on the basis of title precisely because of the death of the statutory tenant during the pendency of the proceeding before the Controller. We would not, therefore, call the termination of the proceeding before the Controller as an abatement. The Controller may, therefore, dismiss the application for eviction on the ground that he has ceased to possess the jurisdiction to entertain it on the death of the statutory tenant. Such an order would have to be passed in the presence of the proposed legal representatives. But, it would have to be passed after bringing them on record.”

We must say with profound respect that the approach of the Full Bench to the question before it was not sound and we have not been able to persuade ourselves to agree with its conclusions.

When a lease is granted by the landlord to the tenant, which in terms of section 105 of the Transfer of Property Act, is a transfer of a right to enjoy immovable property, possession of the property is delivered to the latter. The landlord by virtue of section 108 (c) of the Transfer of Property Act, in the absence of a contract or local usage to the contrary, is deemed to have contracted with the tenant that if the latter pays the rent reserved by the lease and performs the contracts binding on him, he can hold the property during the term of the lease, without interruption. The benefit of such contract, according to the said section, is annexed to and goes with the tenant's interest as such and can be enforced by every person in whom that interest in whole or in part from time to time vests. On the determination of the lease, whether on the expiry of a notice to quit or on the happening of any one of the other events mentioned in section 111 of the Transfer of Property Act, the tenant loses the right to enjoy the property. The tenant, then, if he continues in possession, is just holding over and is bound under clause (q) of section 108 pf the Transfer of Property Act to put the lessor into possession of the property. The landlord becomes entitled to recover possession and if such a tenant resists, to seek the assistance of the court for that purpose.

It is at this stage that the 1958 Act steps in and by its section 50 provides that no civil court shall entertain any suit or proceeding in so far as it relates, inter alia, to eviction of any tenant from any premises or to any other matter which the Controller is empowered by or under that Act to decide. This, however, does not prevent a civil court from entertaining any suit or proceeding for the decision of any question of title to any premises [sub-section (4) of section 50]. The jurisdiction, thus taken away from the civil court, is vested in the Controller, but only to a limited extent as prescribed. The Controller is an authority, which has been created by the 1958 Act. Its section 35 authorises the Central Government to appoint Controllers and Additional Controllers “to exercise the powers conferred, and perform the duties imposed,” on them by or under the said Act. Various sections of the Act then give him diverse powers. To illustrate, section 36 gives him power, inter alia, to summon and enforce attendance of any person and examine him on oath; section 37 enables him to follow as far as may be, the practice and procedure of a court of Small Causes; section 40 gives him power to correct clerical or arithmetical or accidental slips or omissions in any order; section 42 makes his order or an order passed in appeal executable as if it was a decree of a civil court, and section 41 confers on him certain magisterial powers. So far as eviction is concerned, the power is given to the Controller by the proviso to sub-section (1) of section 14 of the Act. The relevant part of section 14 (1) reads as follows:

“14. (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant;

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of the premises on one or more of the following grounds only, namely;”

Then are enumerated the said grounds in clauses (a) to (1). The Controller, thus, can make an order for the recovery of the premises only under the given circumstances, that is, only if one or more of the grounds specified in clauses (a) to (1) of the proviso exist. He gets jurisdiction which according to the Supreme Court in Official Trustees, West Bengal & Others v. Sachindra Nath Chatterjee & another, AIR 1969 SC 823 (para 15) (2), includes the authority to hear and decide the particular controversy that has arisen between the parties, when “an application (is) made to him in the prescribed manner”. This application must disclose one or more grounds from out of those given in the said clauses (a) to (1), which if proved, will enable him to pass orders which he is empowered to pass. The Controller will have jurisdiction, on the basis of the petitioner's allegations, to entertain his application, to ascertain the essential points involved in the case, to determine if the said pre-conditions exist and ultimately to pronounce upon them. If the Controller finds that any of the circumstances mentioned in clauses (a) to (1) of the said proviso exist, he will exercise the powers specifically vested in him of making an order for the recovery of the premises. If, on the other hand, he finds that those circumstances do not exist, then still exercising jurisdiction in the matter, he will decide by dismissing the application on the ground that he has no power to make the order which the landlord requested him to make. The jurisdiction is exercised by the Controller, on the basis of the allegations in the petition, and not on what the respondent may say in defence; while an order is made by him only if the making of it is within the limits of the powers, conferred on him.

The above legal position can be viewed from another angle. Section 14 (1) creates a bar to the passing of an order or decree for the recovery of possession of the premises, notwithstanding anything to the contrary contained in any other law or contract. The proviso to the sub-section then lists certain circumstances, in clauses (a) to (1) in the nature of exceptions, on the existence of which the said bar is lifted, to enable the passing of an order for recovery of the premises by the Controller, on whom power has specifically been conferred for the purpose. The tenant continues to hold possession of the premises by virtue of the protection given to him by section 14 (1), if he is not covered by any of the said clauses (a) to (1) of the proviso. Every application under section 14, therefore, pre-supposes that (a) the person against whom it is made, i.e the respondent, though once a tenant is no longer entitled to the tenancy rights or the right to enjoy the premises under the provisions of the Transfer of Property Act, and (b) the respondent no longer is entitled to the statutory protection, which was available to him under the first part of section 14 (1).

Coming to the facts of the present case, the landlord alleged that contractual tenancies had been terminated, and that the grounds mentioned in the proviso to section 14 (1) of the 1958 Act were available to him as the tenants in both cases had committed more than one specified defaults. The bar created by section 14 (1) against the passing of an order for possession of the premises, which was a personal protection to the tenant, was alleged to have been lifted. During the pendency of the said applications, before the Controller, the tenants died. The possession of the premises, which, according to the landlord's allegations, was unprotected in the hands of the tenants fell into the hands of his legal representatives. They did not enter into possession as trespassers to begin with, but happened to be the legal representatives of the deceased and came into possession as such, representing the estate of the deceased. By virtue of their so coming into possession of the premises, the obligation of the tenants to hand over possession of the premises back to the landlord also passed over to them.

A question was raised at the Bar, as to whether the respondents in SAO 6 of 1968 and respondents Nos. 1 to 4 in SAO 54 of 1968 can be said to be the legal representatives of the deceased tenants for the purposes of the applications under section 14 of the 1958 Act, as they have not inherited the statutory protection which the tenants enjoyed. It is true that the statutory protection from eviction provided by the first part of section 14 (1) is personal to the tenant. The heirs of the deceased tenant, according to the 1958 Act, as it stands today, do not acquire the status of tenants. According to section 2 (1) of the 1958 Act, unless the context otherwise requires, “tenant means any person by whom or on whose account or behalf the rent of any premises is or but for a special contract would be payable and includes a sub-tenant and also any person continuing in possession after the termination of his tenancy but shall not include any person against whom any order or decree for eviction has been made”. The rent is not payable, as such, by the legal representatives on their own behalf and they are, therefore, not the tenants; nor are they entitled under the provisions of 1958 Act to the protection from eviction which the deceased enjoyed. But, that does not imply that they are not legal representatives of the deceased tenant even for the purpose of proceeding under section 14 (1) of the 1958 Act.

The expression ‘legal representative’ has acquired in law, a definite connotation, which is embodied in its definition in section 2 (11) of the Code of Civil Procedure. It means, according to that definition, a person, who in law, represents the estate of the deceased person and includes any person who intermeddles with that estate and where a person sues or is sued in a representative character, is the person on whom the estate devolves on the death of the party so suing or sued. Although, the Code as such is not applicable to the proceedings before the Controller, yet he follows the practice and procedure of a court of Small Causes as far as may be and on other matters he is guided by its provisions. Accordingly, any person who represents the deceased after his death and in whose hands the property or estate of the deceased falls, or who claims or is interested in that estate as a representative of the deceased, will be the legal representative of the deceased. Normally, this estate will come into the hands of a legatee or an heir of the deceased, and he will, therefore, be the legal representative of the deceased in respect of the property of the deceased. He is the person, who in law would represent the estate. The status of legal representative devolves on the person concerned by reason of the death of the person, whose estate he holds and represents. The term ‘intermeddler’ likewise denotes a person who intermeddles with the estate of the deceased in such a way as to indicate an intention or an ostensible intention in him to exercise the functions of a representative of the deceased. A trespasser or any other person who may claim title in himself adversely to the estate of the deceased, accordingly, would not be his legal representative. For, he does not get any estate of the deceased by reason of his death. Nor can he be said to represent the estate of the deceased. He would then be asserting his own claim. The 1958 Act does not provide anything contrary to this concept of a legal representative.

The respondents concerned, in the present appeals, who are wives and children of the deceased tenants, and have comes into possession of the premises in dispute, whether by themselves or through the subtenants inducted by the deceased tenants, have not acquired possession by any overt act or under any independent title. They can be said to have just come into possession of the premises, whatever its nature may be (whether unprotected or otherwise). Possession just passed into their hands on the death of the tenants and they claimed to have the right to continue in possession as the heirs or successors of the deceased tenants. They, therefore, are holding possession of the premises as representing the estate of the deceased tenants and, are, therefore, legal representatives of the deceased tenants. We are, accordingly, unable to agree with V.S Deshpande J., when, speaking for the Full Bench in K.G Malhotra's case, he observed: “. . . . under the 1958 Act only a person inheriting the tenancy and/or the statutory protection of the deceased tenant would be regarded as legal representative”; and when he gave expression to similar views in Nathu Khan v. Mohd. Ismail, AIR 1973 Delhi 213 (3). In fact there would be no question of any person inheriting the tenancy because there was no tenancy in existence, which could be inherited in a case like this. Even the deceased were ex-tenants and did not have tenancy rights or any other interest in the premises, their contractual tenancies, according to the landlord's allegations, having been terminated earlier. There would also be no question of inheriting the statutory protection, as there was no such protection available even to the deceased. According to the allegations of the landlord, more than one ground out of the grounds referred to in clauses (a) to (1) of the proviso to section 14 (1) were available to him and the deceased tenants had ceased to enjoy the statutory protection. All that fell into the hands of the legal representatives' from the deceased tenants on their death was the possession of the premises, which had to be made over to the landlord. It is this possession, still existing in their hands, which the landlord claims; and it is for this purpose that they represent the estate of the deceased and are accountable to the landlord. They are thus in every sense of the expression legal representatives of the deceased. In the present case, the respondents concerned, in any case, have not challenged their status as legal representatives of the deceased tenants.

The question next arises whether the right to sue on the basis of the application under section 14 of the 1958 Act, which was pending before the Controller at the time of the tenant's death, survives in favour of the landlord, against the legal representatives of the deceased. The answer is clearly in the affirmative. The right to sue, after all, is nothing but the right to seek relief (see Ibrahimbhoy v. State of Gujarat, AIR 1968 Gujarat 202 at 207) (4). A petitioner may claim by way of relief recovery of money or property from the respondent. On the latters' death, the petitioner has the right to follow the subject matter of the litigation in the hands of the legal representatives. The general rule is that all rights of actions and demands whatever existing in favour or against a person at the time of his death which are not personal to the deceased, would survive to or against his legal representatives. Section 306 of the Indian Succession Act is more or less to this effect and specifying certain exceptions provides that causes of action for defamation, assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party and in cases where after the death of the party the relief sought could not be enjoyed or granting it would be nugatory, do not survive. Section 37 of the Contract Act has also the same effect and lays down that “promises bind the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appeal's from the contract”. According to Rule 23 of the Delhi Rent Control Rules, 1959, the Controller and the Rent Control Tribunal are, as far as possible, to be guided by the provisions of the Code of Civil Procedure, on all questions relating to procedure not specifically provided by the Act and the Rules. Section 146 of the Code of Civil Procedure lays down that “where any proceeding may be taken or application made by or against any person then the proceeding may be taken or application may be made by or against any person claiming under him.” The Supreme Court in Girajanandini Devi and others v. Bijendra Narain Choudhary, AIR 1967 SC 1124 (para 14) (5) observed: “the maxim ‘actio personalis moritur cum persona’ a personal action dies with a person, has a limited application. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for demages ex delicto and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory. Death of the person liable to render an account for property received by him does not, therefore, affect the liability on his estate.”

The applications for recovery of possession of the premises in dispute, out of which the present appeals have arisen, were not actions for demages ex-delicto. They did not fall within the enumerated classes, nor were they such that the relief claimed was personal to the deceased tenants and could not be enjoyed after their death or granting it would be nugatory. Such would have been the case, if the relief claimed had been in respect of an obligation of the deceased, which was personal to him as would be the obligation of a painter to paint a picture, for example. The right of the deceased tenants to statutory protection from eviction from the premises was personal to them; but their obligation to deliver it back to the landlord on the termination of the statutory protection, was not personal. The claim of the landlord for possession of the premises was not extinguished with the death of the tenants. The premises are still in existance and their possession is in the hands of the legal representatives, who can be directed to hand it over to the landlord. The death of the tenants, who were liable to put the landlord into possession of the premises, which they had earlier acquired, would not, therefore, affect the liability of their estate. The landlord still can follow his claim for recovery of the premises, in the hands of the legal representatives of the deceased tenants. Accordingly, his right to sue survives against them.

Mr. Sabharwal contended that even if the right to sue had survived in favour of the landlord and against the legal representatives, it could not be enforced by the Controller, who had no power to pass an order against any person other than a tenant. The legal representatives, according to him, were not the tenants; and, therefore, not amenable to the Controller's jurisdiction. This contention is not well founded. Although in section 14 (1) the language employed speaks of a ban against an order or decree for recovery of possession in favour of the landlord against a tenant, yet the power of the Controller to make an order for recovery of the premises is contained in the proviso which is wide in scope. It provides, in unequivocal terms that “the Controller may, on an application made to him, in the prescribed manner, make an order for the recovery of the premises on one or more of the specified grounds. It does not say against whom this order can or cannot be made. There are no such limits to the Controller's power. The interpretation put by Mr. Sabharwal suggesting that this power is limited to making an order against a tenant only has no justification. A similar argument was advanced in South Asia Industries Private Limited v. Sarup Singh and others, AIR 1966 SC 346 (1) which case had arisen also out of an application for eviction under section 14 (1) of the 1958 Act. Repelling this argument, Mr. Justice A.K Sarkar, who delivered the leading judgment of the majority, with whom Mr. Justice Bachawat agreed in a separate concurring judgment, observed:

“I am unable to accept this argument. This proviso expressly states that an order for ejectment, can be made ‘on one or more of the following grounds’ and then sets the grounds out in the different clauses that follow, one of which is clause (b) with which we are concerned. The clauses, therefore, set out the circumstances in which the operative part of the proviso is set in motion, that is, the circumstances in which an order for recovery of possession may be made. If this is so, as I think, it is, the clauses could not have been intended to indicate the person against whom an order for recovery of possession could be made. Their purpose was entirely different. I am not suggesting that an order for recovery of possession against the assigning tenant cannot be made. All that I say is that the clauses do not intend to indicate the persons against whom an order for recovery of possession can be ‘made and so it cannot be argued that the order cannot be made against any other.”

(italics ours).

Mr. Sabharwal contended that that case was for eviction under clause (b) against a sub-tenant and not against a legal representative. Here also sub-tenants are parties in SAO 6 of 1968. But, this hardly makes any difference. In the case before the Supreme Court, the tenant was a company incorporated under the Companies Act. During the pendency of the proceeding, the company was completely wound up and became extinct. Its name was struck off from the record, leaving the sub-tenant as the only respondent. The ground for eviction claimed was, of course, under clause (b); but the observations of the Supreme Court were general and were intended to cover all cases for recovery of possession under section 14 (1).

Mr. Justice Sarkar observed:

“I observe that the object of the first part of sub-section (1) of S. 14 is to ban all recovery of possession of tenanted premises by a landlord and that of the proviso is to lift that ban in specified cases. The object of the proviso is then to enable the landlord to recover possession in any of the specified cases. Assume that the present is a case where the landlord became entitled to recover possession under Cl. (b) of the proviso; clearly then the statute intended the landlord to recover possession. It would be our duty to give effect to that intention unless the language used made it plainly impossible. I have earlier said that the language used does not compel the view that the only person against whom an order for recovery of possession can be made is the tenant assigning or sub-letting without the landlord's consent. That being so, orders against all ‘persons in occupation’ must have been contemplated so that the landlord might without further trouble recover possession. Further I find it impossible to hold that the language used indicates an intention that when a right has accrued to a landlord to recover possession, that right would be taken away from him when the tenant assigning has become extinct without leaving a successor, an event which is only accidental and certainly rare. A court would be fully justified in holding that in such a case, it was intended that an order for recovery of possession can be made against the assignee alone for that would enable the object of the statute which was to enable the landlord to recover possession, to be achieved. An interpretation, which defeats the object of the statute is, of course, not permissible.”

Even the dissenting view expressed by Mudholkar J. limited its dissent to a case where the tenant became totally extinct as happened on the winding up of the company, which was the tenant in that case, without leaving any legal representative. But, if the tenant died leaving legal representatives (as has happened in the instant case) the learned Judge saw no objection to bringing on record his said legal representatives. Mudholkar J. observed:

“Where during the pendency of the proceeding before the Rent Controller the tenant dies or makes an assignment of whatever interest he may still have left in the demised premises, no difficulty would arise, because his legal representative or assignee could be brought on record in his place.”

This was a case from Delhi under this very 1958 Act. This judgment of the Supreme Court, therefore, is directly on the point involved and clinches this issue. It is patent that once any of the circumstances mentioned in clauses (a) to (I) to the proviso to sub-section (1) of section 14 are shown to exist, the legal representative will not escape from the jurisdiction of the Controller who will continue to have power even after the tenant's death to pass an order for recovery of the premises in favour of the landlord against whosoever claiming under the tenant, may be in possession. V.S Deshpande J, we must say with respect, was, therefore, in error when speaking for the Bench in K.G Malhotra's case, he observed “If the statutory tenant dies before an order for eviction is passed the basis of the claim of the landlord for eviction has to shift from the proviso to section 14 (1) to that of his general title. The application for eviction cannot, therefore, proceed further . . . . . . though the general right to sue survives to the landlord to pursue this remedy on the basis of title in a civil court, the right to pursue the application under the 1958 Act does not survive and the Controller has to terminate the proceedings”. His observations in the case of Mangal Chand v. Gurmukh Singh AIR 1972 Delhi (6), to the effect that “the application for eviction would have abated on the death of Mangal Chand in accordance with the principle of Rule 4 of Order 22, Code of Civil Procedure”, even as explained by him in K.G Malhotra's case, cannot be supported and we are unable to subscribe to the said view. The Controller cannot dismiss the application for eviction on the death of the statutory tenant, by saying that he has ceased to possess jurisdiction. We are of the opinion that he does not lose jurisdiction.

A legal representative is appointed merely in order that the suit or the proceeding might proceed and a decision be arrived at. It is the original parties' rights and disabilities that have to be considered and the mere fact that the legal representative could not personally claim that right or could not personally be subjected to that disability, is not sufficient to render the proceeding initiated by the petitioner liable to dismissal. (See Gulli v. Sawan & others, AIR 1924 Lahore 45 (7). It is the obligation of the deceased tenant therefore that has to be considered and not that of his heirs, who have been brought on record as legal representatives and in whose hands the possession of the property now is. That being so, an order for the recovery of the premises, if made by the Controller against the legal representatives can be duly executed. The relief granted by the Controller after the death of the tenant against the legal representatives would not become nugatory. In Andhra Bank Limited v. R. Srinivasan and others, AIR 1962 SC 232 (8), the legal representatives of a deceased defendant were non-resident foreigners. Placing reliance on the judgment of the Privy Council in Gurdial Singh v. Raja of Faridkote, 21 Ind. App. 171 (9), an argument was advanced that a decree pronounced in absentem by a foreign court, to the jurisdiction of which the defendants have not in any way submitted themselves is by international law an absolute nullity. The court was, therefore, in these circumstances, said to have lost jurisdiction against the legal representatives, who were foreigners and not submitting to its jurisdiction, on the death of the defendant. The Supreme Court, while rejecting this argument, referred with approval to the following passage in Salmond's ‘Jurisprudence’, (11th Ed. P. 482 (10).

“inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the representative is in some sort identified by the law with him whom he represents. The rights which the dead man can no longer own or exercise in propria persona, and the obligations which he can no longer in propria persona fulfil, he owns, exercises, and fulfils in the person of a living substitute. To this extent, and in this fashion, it may be said that the legal personality of a man survives his natural personality, until, his obligations being duly performed, and his property duly disposed of, his representation among the living is no longer called for.”

On the basis of the above statement, the Supreme Court observed:

“essentially and in substance and for the purpose of jurisdiction the suits brought by the appellant against Raja Bahadur did not alter their character even after his death and continued to be suits substantially against his estate as represented by his legal representatives. If that be the true legal position, there would be no scope for urging that the court which was competent to try the suits as originally filed ceased to be competent and try them because the legal representatives of the deceased Raja Bahadur were non-resident foreigners.”

The above observations of the Supreme Court show that V.S Deshpande J. was not right when he said that “if the statutory tenant dies before an order for eviction is passed, the basis of the claim of the landlord for eviction has to shift from the proviso to section 14 (1) to that of his general title”. The Supreme Court further observed:

“In such a case if one of the defendants dies and his legal representatives happen to be non-resident foreigners the procedural step taken to bring them on record is intended to enable them to defend the suit in their character as legal representatives and on behalf of the deceased defendants and so the jurisdiction of the court continues unaffected and the competence of the suit as originally filed remaining unimpaired. In form it is a personal action against the legal representative but in substance it is an action continued against them as the legal representatives in which the extent of their liability is ultimately decided by the extent of the assets of the deceased as held by them.”

In the present case, therefore, the legal representatives of the deceased tenants could be and were rightly brought on record to enable them to defend the proceedings on behalf of the deceased tenants. Jurisdiction of the Controller to deal with the applications continued unaffected and the competence of the application as originally filed remained unimpaired. Although in form it may appear to be a personal action against the legal representatives, in substance it is an action continued against them as legal representatives and the extent of their liability is ultimately decided by the extent of the assets or the estate of the deceased held by them. Such assets or the estate in the present case is the premises in dispute in their hands. Their liability, therefore, would extend to their putting the landlord back into possession of the said premises. If therefore, any of the circumstances specified in the proviso to section 14 (1) is found to exist, the Controller would make an order for recovery of the premises after bringing the legal representatives on record on the death of the tenants and for that purpose would continue the proceeding till final decision. This is precisely what Rule 4 of Order 22 of the Code of Civil Procedure requires. For, when the right to sue survives, as it does in this case, the Controller on an application, “shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit” (emphasis supplied). The suit (the application in this case) has thus to be proceeded with and is not to be dismissed on the ground that the legal representatives did not inherit the tenancy rights or the protection from eviction.

We may pause here to dispose of another point. Which though not involved in the present appeals, has been mentioned in a passage in the Full Bench judgment in K.G Malhotra's case, which may possibly cause some misunderstanding. The said passage, as already noticed, reads: “the landlord may not apply within the prescribed time to bring the legal representatives on record. In such a case, the application abates as provided by Order 22″. We must say with respect that we cannot agree with this observation. This question came up for consideration before the Division Bench consisting of S.N Andley C.J, and T.P.S Chawla J. in Subhash Chander v. Rehmat Ullah, ILR, 1973 (1) Delhi 181 (11) and it was held that the Limitation Act does not apply to proceedings before the Controller. We are in respectful agreement with the said view of the Division Bench.

The Supreme Court in J.C Chatterjee and others v. Sri Krishna Tandon and another, AIR 1972 SC 2526 (12), was of the opinion that the landlord's right to proceed with the appeal (in that case the tenant died during the pendency of the appeal), with a view to obtain possession of his premises, did survive under Order 22 Rule 4 read with Rule 11 of the Code of Civil Procedure. The Supreme Court observed:

“Where the right to sue and prosecute appeal survives, the appellant is bound to cause the legal representatives of the deceased respondent to be made a party and proceed with the appeal.”

Under sub-rule (2) of Rule 4 of Order 22, Code of Civil Procedure, any person so made a party can make any defence appropriate to his character, as legal representatives of the deceased defendants. The Supreme Court in J.C Chatterjee's case held that all contentions, which would be urged by the deceased could be urged by his legal representatives “except only those which were personal to the deceased”. The Supreme Court observed:

“The only contentions that they (legal representatives) could put forward in the appeal were the contentions appropriate to their representative character and not one, which was personal to the deceased. The contention based on the ground of bona fide requirement by the landlord was personal to the statutory tenant and on his death the same is not open to his legal representatives . . . . .”

If the legal representatives set up their own independent title this would not be in their capacity as legal representatives of the deceased or representing his estate. They would then be parties to the proceeding in their dual capacity, viz. in their capacity as legal representatives of the deceased tenant and in their other capacity claimed by them independently of the deceased. And if the landlord denies the latter capacity, the controller would have jurisdiction to decide, incidentally, their claim on merits, in order to determine whether the contention of the landlord that they had the capacity as legal representatives only was correct. The decision of the Controller on the independent claim set up by the legal representatives, will, of course, be subject to final review by the civil court, if that court is moved. This is what the Supreme Court observed in Om Parkash Gupta v. Dr. Rattan Singh, 1963 PLR 543, at 546-547 (SC) (13).

To sum up, the relief the landlord claimed in his applications under section 14 against the tenants, whose tenancies had already been determined and who were alleged to have lost the protection of section 14 of the 1958 Act, could, thus, be claimed on their death against their legal representatives. The right to sue on the basis of the applications under section 14 of the 1958 Act, which were pending before the Controller, therefore, survived in favour of the landlord and against the respondents in SAO 6 of 1968 and the respondents Nos. 1 to 4 in SAO 54 of 1968, who were rightly held to be the legal representatives of the deceased tenants; and were correctly brought on record as such. The jurisdiction of the Controller to deal with the said applications after the death of the tenants remained unaffected. The proceedings under section 14 (1) of the 1958 Act, therefore, have to be continued against the said legal representatives. Since the power of the Controller to pass an order for recovery of possession depends on the existence of one or more of the conditions specified in clauses (a) to (1) of the proviso to sub-section (1) of section 14, the landlord has to establish that they do exist. In answer thereto, the legal representatives who have been brought on record, may put forward such contentions as are appropriate to their representative character, but not the contentions which were personal to the deceased tenants. They would, of course, be entitled to support their aforesaid contention by such evidence, as they may be able to adduce. If the Controller finds that one or more of the aforesaid conditions exist, nothing would prevent him from passing an order for the recovery of the premises in favour of the landlord and against the legal representatives. In case the Controller comes to the finding that the landlord has not been able to establish any of the grounds which are mentioned in clauses (a) to (1) of the proviso to section 14 (1), then he would have no power to pass an order for recovery of possession for the reason that the conditions on which his power to order recovery of possession rests, do not exist. The landlord may then file, if so advised, a regular suit for possession in the civil court, which would be on a different cause of action.

Before parting with these appeals, we must express our appreciation for the valuable assistance given to us by Mr. H.K.L Sabharwal, who at our request argued the appeals on behalf of the respondents amicus curiae. This had to be done because the respondents were unrepresented on the day when the appeals were put up for arguments before us for the first time. Subsequently, Miss Asha Singh appeared, filed memo of appearance on behalf of respondents Nos. 5 to 7 in SAO 54 of 1968 and addressed arguments on their behalf.

In the result, the second appeals succeed. The order of the Tribunal affirming those of the Additional Controller, as well as the order of the Additional Controller dismissing the applications for eviction are set aside. The cases are remanded to the Additional Controller for proceeding with the trial of the applications for eviction in accordance with law and in the light of the observations made in this judgment. In the peculiar circumstances of the case, the parties shall bear their own costs in these second appeals and before the Tribunal and the Additional Controller.

Cases remanded.