Full Judgment Text
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PETITIONER:
JAGDISH CHANDER CHATTERJEE & ORS.
Vs.
RESPONDENT:
SRI KISHAN & ANR.
DATE OF JUDGMENT09/08/1972
BENCH:
PALEKAR, D.G.
BENCH:
PALEKAR, D.G.
GROVER, A.N.
CITATION:
1972 AIR 2526 1973 SCR (1) 850
ACT:
Rajasthan Premises (Control of Rent and Eviction) Act 1950-
s. 13-Statutory tenant dying-Heirs whether ’tenants’ under
Act-Whether can claim protection of Act.
HEADNOTE:
Plaintiff (Respondent No. 1 herein) filed a suit seeking
ejectment from his house of his tenant C on the ground of
personal need. Defendant C contended that the landlord did
not require the premise, bonafide. The Munsif, Ajmer,
decreed the suit. In appeal the District Judge held that
the landlord did not require the premises reasonably and
bonafide and allowing the appeal, dismissed the suit. The
landlord filed an appeal in the Rajasthan High Court.
During the pendency of the appeal C died and thereafter the
appeal was contested by his heirs. The High Court in second
appeal held (i) that it was not necessary to go into the
question of bonafide and reasonable necessity of’ the
landlord as that was only a protection provided to the
statutory tenant personally under s. 13 of the Rajasthan
Premises (Control and Eviction) Act, 1950; (ii) that the
tenancy of C having been duly terminated by notice there was
no bar to the passing of the decree. In appeal by C’s legal
representatives, to this Court, the questions that fell for
consideration were : (i) whether the High Court should have
remanded the case for determination of the question whether
the contractual tenancy had been terminated; (ii) whether
the protection afforded by the 1950 Act to the statutory
tenant was personal to such tenant or was also available to
heirs and legal representatives, (iii) whether the heirs of
the tenant were tenants within the definition of that term
in s. 3 (vii) of the Act.
Dismissing the appeal.
HELD : (i) The landlord had alleged in the suit that by a
notice dated 26-6-1972 served upon the tenant, the tenancy
had been duly terminated. This was not denied in the
written statement nor was an issue demanded at the time of
the trial. The High Court had after hearing both sides come
to the conclusion that the contractual tenancy had been duly
terminated by a notice. In these circumstances there was no
substance in the submission that the High Court should have
remanded the case.[852H]
(ii) It is now settled that after the termination of the
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contractual tenancy the statutory tenant has only a personal
right to continue in Po&session till evicted in accordance
with the provisions of the Act. The contention based on the
ground of bonafide requirement by the landlord was personal
to the statutory tenant and on his death the same is not
open to legal representatives unless there is anything in
the provision of the Act which makes the legal
representatives statutory tenants to the same extent as the
deceased. it was not the case of the appellants in the
present case that there was anything in the provisions of
the Act which gives protection to the legal representative
of the deceased statutory tenant.[853H; 855F]
Annidlyas (Private) Ltd. v. Anandji Kalyanji Pedhi & Or.
[1964] 4 S.C.R, 892. 908 applied.
851
(iii) The contention that since the rent in the present case
was payable by the heirs and it was in fact paid during the
pendency of the proceedings they were tenants within the
definition could not be accepted. Rent was however not
payable by the legal representatives, and if the rent was
paid by them during the course of the proceedings it was not
because they were recognised as tenants by the landlord but
because the amount was received by him, without prejudice to
his rights under the orders of the court. Therefore the
heirs and legal representatives of the deceased C could not
in their own right claim’ to be a ’tenant’ within the
meaning of the Act. The only contentions which they could
put forward were the contentions appropriate to their
representative character and not one which was personal to
the deceased. [855B-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 428(N) of
1971.
Appeal by special leave from the judgment and order dated
January 1, 1971 of the High Court at Jodhpur in S. B. Civil
Second Appeal No. 390 of 1965.
Sobhag Mal Jain, for the appellants.
Vinoo Bhagat and J. K. Sethi, for respondent No. 1.
The Judgment of the Court was delivered by
Palekar, J. This appeal by special leave arises in the
following circumstances.
Plaintiff (Respondent No. 1) filed Civil Suit No. 35 of 1963
against one B. N. Chatterji in the court of Munsif, Ajmer
City, for ejectment from the first floor of the house known
as "Krishna Bhawan". The ejectment was sought on the ground
that the plaintiff required the house bonafide for the
residence of himself and his family. B. N. Chatterji-the
defendant, contested the suit and alleged that the landlord
did not require the premises bonafide. The learned Munsif
by judgment dated January 17, 1964 held in favour of the
landlord and decreed the suit for ejectment. From that
decree the tenant filed Civil Appeal No. 59/1964 in :the
court of the District Judge, Ajmer. The learned Judge held
that the landlord did not require the premises reasonably
and bonafide and allowed the appeal and dismissed the suit.
Thereupon the landlord filed second appeal No. 390/1965 in
the Rajasthan High Court. During the pendency of the
appeal, the tenant B. N. Chatterji died on 31-7-1967 and his
widow and children were brought on record as his heirs and
legal representatives. The widow Kalyani Devi died on 24-6-
1969 and her heirs are the legal representatives-already on
record. When the appeal came before a single Judge of the
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High Court for hearing, the landlord, who was the appellant
in the second appeal, sought the permission of the court to
urge the following point.
852
"That the respondent (original tenant B. N. Chatterji) died
after the filing of this appeal. That the deceased after
the determination of the tenancy was only a statutory tenant
and under the Rajasthan Premises (Control of Rent and
Eviction) Act, 1950 the protection granted- by Section 13 of
the Rajasthan Premises (Control of Rent and Eviction) Act is
not available to the heirs of the tenant. As such, even if
it be held that the landlord has failed to prove the
reasonable and bonafide requirement, which the appellant
does not concede, the appellant is entitled to a, decree in
pursuance of the decision of a division bench of this High
Court passed on 7-4-1966 in D.B. Special Appeal No. 3 of
1965".
The learned Judge allowed the point to be urged and came to
the conclusion that it was not necessary to go into the
question of bonafide and reasonable necessity of the
landlord as that was only a protection provided to the
statutory tenant personally under Section 13 of the Act of
1950. Since the tenancy had been duly terminated by notice
and there was no other bar to the passing of the decree in
favour of the landlord the learned Judge set aside the Order
of the District Court and restored the decree passed by the
Munsif..
It was contended before us that the term ’tenant’ in section
3 (vii) of the Act referred to above included, on a proper
construction, the heirs of a tenant and, therefore, they
were entitled in their own right lo urge that the landlord
did not require the premises reasonably and bonafide. On
the other hand, if they were not tenants, it was no longer
open to pass a decree of eviction against them and, if
necessary, the plaintiff should be referred to a separate
unit. In any case, it was contended, in view of the new
point urged at the time of the hearing, the High Court
should have remanded the case for the determination of the
question whether the contractual tenancy was validly
terminated- and whether by acceptance of rent from the legal
representatives during litigation the heirs and the legal
representatives had not been constituted ’tenants’.
In our opinion there is no substance in this appeal. The
original tenant of the promises was B. N. Chatterji. The
landlord had alleged in the suit that by a notice dated
26-6-1962 served upon the tenant, the tenancy had been duly
terminated. This was not denied in the written statement
nor was an issue demanded at the time of the trial.
However, the point being essentially a point of law, the
learned Judge in second appeal permitted both sides to
address him on the point and came to the conclusion that the
contractual tenancy had been duly terminated by a notice.
In these circumstance-,, we do not think that there is any
substance in the submission of the learned counsel for ,he
853
appellant before us that the learned Judge should have
remanded the case for a determination of that question.
The position, therefore, is this. The contractual tenancy
of the tenant B. N. Chatterji had- been duly terminated by
notice as after 31st July, 1962 and after that date the
tenant would be merely a statutory tenant liable to be
evicted only in accordance with the special law namely the
Rajasthan Premises (Control of Rent and Eviction) Act, 1950
referred to herein as "the Act". Section 13 of that Act
provides that Notwithstanding anything contained in any law
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or contract, no Court shall pass any decree, or make any
order, in favour of a landlord, whether in execution of a
decree or otherwise, evicting the tenant so long as he is
ready and willing to pay rent therefor to the full extent
allowable by this Act, unless it is satisfied that there are
in the case one or the other of the several reasons given in
clause (a) to (1) of sub-section (1) of that Section. One
of such reasons is that the Premises are required reasonably
and bonafide by the landlord for the use or occupation of
himself or his family. If the Court is satisfied about this
reason the court would be entitled to pass a decree against
the original tenant. The Trial Court, as we have already
seen, was satisfied about this reason and gave a decree for
eviction against the tenant. In appeal this finding has
been reversed. So the landlord, when he came in second
appeal, would have to show that the finding of the Appellate
Court on that point was wrong and that of the Trial Court
was correct. There is no dispute whatsoever that if the
original tenant B. N. Chatterji had lived till the disposal
of the second appeal, this point could have been agitated
before the High Court and the court would have been required
to give a finding on that point. But the original tenant
who was now merely a statutory tenant died during the
pendency of the appeal and his heirs and legal
representatives were brought on record. It was contended on
behalf of the landlord in second appeal that the protection
given by the Act was personal to the statutory tenant B. N.
Chatterji and on his death it was no longer necessary for
the landlord to show that he required the premises bonafide
and reasonably and he was entitled to the eviction of the
legal representatives on showing that the contractual
tenancy had been properly terminated before the suit. The
point for consideration is what is the position of the
parties before the Court with regard to the relief claimed
by the landlord in his eviction suit.
It is now settled that after the termination of the
contractual tenancy the statutory tenant has only a personal
right to continue in possession till evicted in accordance
with the provisions of the Act. It is pointed out by this
Court in Anand Nivas (Private Ltd. v. Anandji Kalyanji Pedhi
& Ors.(1) at page 908 "A person
(1)[1964] 4 S.C.R. 892 908.
854
remaining in occupation of the premises let to him after the
determination of or expiry of the period of the tenancy is
commonly though in law not accurately, called a "statutory
tenant". Such a person is not a tenant at all; he has no
estate or interest in the, premises occupied by him. He has
merely the protection of the statute in that he cannot be
turned out so long as he pays the standard rent and
permitted increases, if any, and performs the other
conditions of the tenancy. His right to remain in
possession after the determination of the contractual
tenancy is personal : it is not capable of being transferred
or assigned, and devolves on his death only in the manner
provided by the statute". These observations have been made
With reference to the provisions of the Bombay Rents Hotel &
Lodging House Rates (Control) Act, 1947. But they equally
apply to the provisions of the Act with which we are
concerned. The protection given to B. N. Chatterji was
personal to him and if that protection is withdrawn either
because there is a change in the statute or because the
person who is to be personally protected is no longer
living, the question arises as to what is the position of
the legal representatives of the deceased statutory tenant
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qua the landlord in a proceeding of the nature with which we
are concerned.
It is obvious that the appellant landlord’s right to ,
proceed with the appeal with a view to obtain possession of
his premises did survive under Order 22 Rule 4 read with
rule 1 1 Civil Procedure Code. There the right to sue and
prosecute the 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. Therefore,
the heirs and legal representatives of the aforesaid B. N.
Chatterji were rightly brought on record and the appeal had
to proceed.
Under sub-clause (ii) of Rule 4 of Order 22 Civil Procedure
Code any person so made a party as a legal representative of
the deceased respondent was entitled to make any defence
appropriate his character as legal representative of the
deceased respondent. In other words, the heirs and the
legal representatives could urge all contentions which the
deceased could have urged except only those which were
personal to the deceased. Indeed this does not prevent the
legal representatives from setting up also their own
independent title, in which case there could be no objection
to the court impleading them not merely as the legal
representatives of the deceased but also in their personal
capacity avoiding. thereby a separate suit for a decision on
the independent title.
The heirs of the tenant purported to contend That after the
death of the statutory tenant, they, as next heirs, enjoyed
the status of ’tenant’. For this reliance was placed on the
definition, of the word ’tenant’ given in section 3 clause
(vii) of the Act. According to the definition unless there
is anything repugnant in
855
the subject or context-"tenant" means the person by whom
rent is,, or but for a. contract express or implied would
be, payable for any premises and includes any person holding
or occupying the premises as a sub-tenant or any person
continuing in possession after the termination of a tenancy
in his favour otherwise than under the provisions of the
Act. It was contended before us that since the rent was
payable by the heirs and in fact it was paid during the
pendency of the proceedings, they were tenants within the
definition. In our opinion, rent was not payable by the
legal representatives and if the rent was paid by them
during the course of the proceedings it was not because they
were recognised as tenants by the landlord but because, the
amount was received by him without prejudice to his rights
under the orders of the court. Indeed, if the original
tenant had died before the contractual tenancy had been
terminated then the heirs would have inherited the tenancy
and in that sense the rent would have become payable by
them. But that is not the position here. When B. N.
Chatterji died, he was only a statutory tenant-with a
personal right to remain in possession till eviction under
the provisions of the Act, and the heirs were incapable of
inheriting any estate or interest in the original tenancy.
It was also not shown to us that they fell within any other
part of the definition of ’tenant’ reproduced above.
Therefore, the heirs and legal representatives of the
deceased B. N. Chatterji could not in their own right claim
to be "tenant" within the meaning of the Act. Therefore,
the only contentions that they 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
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fide requirement by the landlord was personal to the
statutory tenant and on his death the same is not open to
his legal representatives unless there is anything in the
provision of the Act which makes the legal representatives
statutory tenants to the same extent as the deceased. it is
not the case that there is any other provision of the Act
which gives protection to the legal representatives of the
deceased statutory tenant.
As already stated, all contentions except those which are
personal to the deceased were open to the legal
representatives to put forward in the second appeal. The
contention about the validity of the notice for the
termination of the tenancy was one such contention on which
they could have supported the decision of the District
Court. But as already pointed out the learned Judge has
correctly decided that the contractual tenancy had been duly
terminated by notice. Apart from that point no other point
was urged before the High Court or before us and hence the
Present appeal must fail. There will be no order as to
costs.
G.C. Appeal
dismissed.
856