JAGDISH CHANDER CHA'ITERJEE & ORS. versus SRI KISHAN & ANR.

JAGDISH CHANDER CHA'ITERJEE & ORS.

SRI KISHAN " ANR. ugu.st 9, 1972 [A, N. GROVER AND D. G. PALBKAR, JJ.]

RajaJtha11 Premises (Control of Rent and Eviction) Act 1950-S. 13-Statutory tenant J.ying--Heir1 whether 'tellQllt,. under A.ct-Whether calf claim pro1ectio11 of A.ct.

Plaintiff (Respondent No. 1 herein) filed suit seeking ejectment from his house of !us tenant on the ground of personal need. Delendant contended that the landlord did not require the premiseo bonafide. Tho Munsif, Ajmer, decreed the suil In appeal the District Judge held that the landtord did not r~quire the premises reasonably and bonafide and 11ilow1Dg the appeal, d1s~ssed the swt. The landlord filed an appeal in the RaJaslhan High Court. During the pendency of the appeal died and thereafter the appeal was contested by bis heirs. The High Court in second appeal held (i) that it was not necessary to 10 into the ques.ion of bona-fide and reasonable necessity of the landlord as that was only protection provided to the statutory tenant personally under s. 13 of the Rajasthan Premises (Control and Eviction) Act, 1950; (ii) that the tenancy <if 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 Collrt, the ques.ions that fell for consideration were : (i) whether the High Court should have remanded the case for determination o( the question whether the contractual tenancy bad been terminated; (ii) whether the protection afforded by the 1950 Act to the statutory tenant was personal to such tendnt or was also available to heirs and legal represe1tatives, (iii) whether the heirs of the tenant were tenants within the definition of that term in s. 3(vii) of the Act,

DLmissing the appeal.

HELD : (i) The landlord had alleged in the suit that by 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 a'fter hearing both sides come to the conclusion that the oontractual tenancy bad been duly terminated by notice. In these circumstances there was no substance in the sul>-miasion that the High Court ahould ha>-e remanded the case. J 852HJ

(ii) It is now settled that after the termination of the contractual" tenency the statutory tenant has only personal right to continue in p0>-<e5sion till evicted in 11ccordance with the provisions of the Act. The con-tention 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 his le1al representatives unless there is anything in the provis'on of the Act which makes the legal representath-cs &talutory tenants to the same extent as t'te deceased. It was not the case of the appel'ants-in the present caae that there was anything in the provisions of the Act which gives ; '11 protection to·tbe le&al representative of the deceased statutory tenant.

[853H; 855F]

A.nnid/yas (Private) Ltd, v. A.nandji Ka/yon# Pedhi .t Or. S.C.R.. 892, 908 applied.

[1964] 4

(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 proceedinall Ibey 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 cpurse of the proceedings it was not because they were recognised as tenants by the landlord but becauso the amount was RCCived by him, without prejudiec to his rights under the orders of tho court. Therefore the heirs and legal rc11resentatives of the deceased could not in their own right .claim to be 'tenant' within the meaning of the Act. The only contentions which they could put forward were \he contentions appropriate to their representative character Qlld not one wh1cl! was personal to the deceiued. f8SSB-E]CML 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. Il. Civil Second Appeal No. 390 of 1965.

Sobhag Mal Jain, for the appellants.

Yinoo 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 foilow-lng circumstances.

Plaintiff (Respondent No. I) filed Civil Suit No. 35 of 1963

against one B. N. Chaiterji in the court of Munsif, Ajmer City, for ejectment from the first floor of the house known as "Krishna Bhawan". The eiectment was sought on the ground that the plain-tiff 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 bona-fide. 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, Aimer. 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 Raiasthan High Court. During the oendency of the appeal, the tenant B. N. Chatterii died on 31-7-1967 and his widow and children were brought on record as his heirs and legal represen-tatives. The widow Kalyani Devi died on 24-6-1969 and her heirs are the legal representatives-· already on record. When the appeal came before single Judge of the High Court for hearing, the landlord, who was the appellant in the second appeal, sought the pem;iission of the court to urge the following paint.

"That the respondent (original tenant B. N. Chatterji) died after the filing of this appeal. That the deceased after the deter-mination of the tenancy was only statutory tenant and under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 the protection granted by Section 13 of the Rajasthan P1e-mises (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 requiremell't, which the appellant does not concede, che appel.lant is entitled to decree in pursuance of the decision of division bench of this High Court passed on 7-4-1966 in D.B. Special Appeal No. 3 of 1965".

The le~4 Judge allowed the point to be urged and can1e

to the conclusion that it was not necessary to go into the ques-tion of bonafide and reasonable necessity of the landlord as that was only protection provided to the statutory tenant personally under Section 13 of the Act of 1950. Since the wnancy had been duly terminated by notice and there was no other bar to the pass-ing of the decree in favour of the landlord the learned Ju<'1e set n 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 sec-tion 3(vii.) of !lhe Act referred to above included, on proper constructio" the heirs of tenant and, tho~refore, they were en-titled in thc;r own right to 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 decree of evic-tion against them and, if necessary, tho~ plaintiff should be referred to 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 anci whether Ly acceptance of rent from the legal representativ·~s dur-ing 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 premises was B. N. Chatterji. The land-lord had alleged in the sui't that by 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 is•ue demanded at the time of the trial. However, the point being essentially point of law. the learned Judge in second appeal per-mitted both sides to address him on the ooint and came ~o the wnclusion that the contractual tenancy had been dulv termmated by notice. In •he'e circum,tance'. we do not think ti.at there is any substance in the submission of the learned couns~I for the

appellant before us that the learned Judge should have remaaded the case for determination of that question. ·

The position, therefore, is this. The contractual tenancy of the tenant B. N. Chatterii had been duly terminated by notice as after 31st July, 1962 and after that date the tenant would be merely 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 Notwithstandin,g anything contained i11 any law or contract, no Court shall pass any decree, or make any order, in favour of landlord, whether in execution of 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 th.at 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 decree against the original itenant. The Trial Court, as we liave already seoen, was satisfied about this reason and gave 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 poin 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 finding on that point. But the original tenant who was now merely statutory tenant died during the pendency of the appeal and his heirs and legal representatives r were brought on record. It was contended on behalf of the land· lord in second appeal that the protection given by tbe Act was personal to the statutory tenant B. N. Chatterii 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 personal right to continue in possession till. evicted in accordance with the provisions of the Act. It is pointed out bv this Court in Anand Nivas (Private Ltd. v. Anandji Kalyanii Pedhi & Ors.(1) ~t page 908 "A person

(i).Ti964J 4 S.C.R. 892 @ 908.

remaining in liX:cupation of the premises let to him after the deter-A mination 0f or expiry of the period of the tenancy is commonly though in law not accurately, called "statutory tenant": Such person ii not tenant at all; he has no estate or interest in the premises occupied by him. He has merely the protection of the sta-tute in ~at he cannot be turned out so long as he pays tb.e stan-dard rent •d 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 tho Act w•th which we are concerned. The protection given to B. N. Chatterii was personal to him and if that protection is withdrawn either because there is change in the statute or because the person who is to t~ personally protected is no longer living, the question arises as to what is the position of the legal representatives of the deceased statutory tenant qua the landlord in proceeding of the nature with which we are concerned.

It is obvious that the appellant landlord's right to proceed with the appeal with view to obtain possession of his premises did survive under Order 22 Rule 4 read with rule 11 Civil Pro-cedure Code. There the right to sue and prosecute the appeal survives, the appellant is bound to cause the legal representa·tivee of the deceased re~. 1ndent to be made party and proceed with the appeal. Thereh.ire, the heirs and le~al 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 11 Code any person so made party as legal representative of the deceased respondent was entitled to make any defence appropriate bis character as legal repre>entative 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 doee 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 m:rely as the legal representa-tives of the deceased but also in their personal capacity avoiding thereby separate suit for 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 ret1ance was placed on the definition, of the w0rd 'tenant' given in secti.Jn 3 clause (vii) of the Ari.. According to the definition unless there i~ anything repugnant in

the subject or context-"tenaut" means the person by whom sent is, or but for contract express or implied would be, payable for any premises and includes any person holding or occupying the premises as sub-'tenant or any person continuing in possession after the termination of 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 oendency 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 haw inherited the tenancy and in that sense the rent 'l'.'Ould have become payable by them. But that is not the posi-tion here. When B. N. Chatterji d:d, he was only statutory tenant-with personal righ( to remain in possession till eviction • under the provisions of the Act, and the heirs were incnpable of inheriting any estat>e 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 fide requirement by the landlord was personal to the statutory tenant and on his death tlie same is not open to his legal representatives unless there. is anythini( in the provision of the Act which makes the leii:al 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 per-sonal to the deceased were open to the lel!;al representatives to put forward in the second appeal. The contention about the validrty 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 uriied before the Hfoh Court or before us and hence the pre-1ent appeal must fail. There will be no order as to costs.