*Mohan Lal v. Shri Krishan, 1977 (2) RCJ 505 Delhi HC
*Not Printed
Suit No. 532 of 1972,, decided on 08/08/1977
Headnote
(A) Civil P.C. (5 of 1908) , O.1 R.9— Non-joinder – Suit for possession by co-owner landlord against heirs of statutory tenant – Suit cannot be thrown out on account of non-impleading of other co-owners A co-owner is as much an owner of the property as any sole owner.
Under the general law, in a suit between landlord and tenant, the question of title to the leased property is irrelevant. The suit cannot be thrown out on account of non-impleading of other co-owners as such. The absence of other co-owners on record does not disentitle co-owner landlord from suing.(Para 14 16)
Anno: AIR Comm. C. P. C. (8th Edn.), O. 1, R. 9, N. 5.
(B) Civil P.C. (5 of 1908) , O.1 R.9— Non-joinder – Plea that suit is bad for non-joinder of other plaintiffs – Plea should be raised at earliest opportunity. (Para 15)
Anno: AIR Comm. C. P. C. (8th Edn.), O. 1, R. 9. N. 5.
(C) Transfer of Property Act (4 of 1882) , S.106, S.111(4), S.113— Valid notice of termination served on tenant – Tenancy will inevitably be determined on its determination u/S.111(4) – Notice will not be exhausted by dismissal of eviction petition filed on its basis – Parties can nullify its operation by mutual consent. AIR 1968 SC 471 (474), Rel. on.AIR 1976 All 321, Dissented from.(Paras233033) (Para 23 30 33)
Anno: AIR Comm. T. P. Act (4th Edn.), S. 106, N. 39; S. 111, N. 23; S. 113, N. 3.
(D) Transfer of Property Act (4 of 1882) , S.113— Landlord accepting amounts equivalent to rent from statutory tenant – New tenancy, if created – Onus.
Evidence Act (1 of 1872) , S.101, S.102, S.103, S.104—
Mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined by a notice to quit and who enjoys statutory immunity from eviction because of the Rent Act cannot be regarded as evidence of a new agreement of tenancy. If the tenant asserts that the landlord accepted the rent not is statutory tenant but only as legal rent indicating his assent to the tenant’s continuing in possession, it is for the tenant to establish it.(Para 40)
Anno: AIR Comm. T. P. Act (4th Edn.), S. 113, N. 3; 3 AIR Manual, Evidence Act, Ss. 101-104, N. 70.
(E) Delhi Rent Control Act (59 of 1958) , S.2— (as amended by Act 18 of 1976) – “Tenant” – Meaning – Object and effect of amendment – Nature of right conferred by it – Concept of statutory tenant.
The Amending Act is retrospective in operation. The object of amendment is to widen the definition of “tenant”. It confers a right on certain persons mentioned in Expln. I to continue in possession after the termination of the tenancy of the tenant. During his lifetime the tenant cannot be evicted on ground that his tenancy has been terminated. The Rent Act protects him. He can be evicted if he is in breach of statutory conditions in S. 14 of the Rent Act. The amendment extends protection to heirs and successors. But it is a restricted protection. There are several limitations on the right conferred by the amendment. The successor has a merely personal right of occupation.(Para 48 50 51 60)
The statutory tenant has no estate or property as tenant at all. After the termination of contractual tenancy, the statutory tenant has only a personal right to continue in possession till evicted in accordance with provisions of Rent Act. The incident of a statutory tenancy is that the statutory tenant has only a personal right or privilege. It is nothing more than a status of irremovability conferred by the statute. Statutory tenancy does not vest in the heirs unless the statute confers the right to pass it on to heirs. The incident of the contractual tenancy on the other hand is that the tenant retains an interest in the premises and not merely a personal right of occupation. The contractual tenancy vests in the heirs on death of the tenant. AIR 1965 SC 414 (422); AIR 1968 SC 471; AIR 1972 SC 2526, Rel. on.
By enacting the Amendment Act the legislature has expressed its will in an unequivocal manner. The intention of the legislature is to be gathered by placing the statutory tenant of a residential premises in juxtaposition to the statutory tenant of a commercial premises. The legislature has conferred a right to continue in possession on certain heirs of the former; while it has not conferred any such right on the heirs of the latter. In residential premises the statutory tenancy has a limited transmissibility; in commercial premises it has none whatsoever. The legislature has left no doubt about this. AIR 1976 SC 2229, Distinguished.(Para 78)
The statutory tenant of commercial premises has no estate or interest in the premises occupied by him, but only a personal right to remain in occupation which is incapable of being transferred or assigned.(Para 81)
(F) Delhi Rent Control Act (59 of 1958) , S.2— (as amended by Amending Act 18 of 1976) – “Tenant” – Definition of – Statutory protection confined only to residential premises and perhaps, to residential-cum-commercial premises – Does not apply to business premises 1977 Ren CR 217, (Delhi), Rel. on.(Paras60616669) (Para 60 61 66 69)
(G) Constitution of India , Art.141— Precedents – Supreme Court not bound by its previous decisions – A larger bench can overrule previous decisions if it finds them wrong or unjust. (Para 76) Anno: AIR Comm. Const. (2nd Edn.), Art. 141, N. 5.
(H) Interpretation of Statutes , — General purpose and policy of statute – To be gathered by reading it as a whole in the light of circumstances which existed when it was passed or of the mischief which it must have intended to remedy. (Para 80)
(I) Civil P.C. (5 of 1908) , O.7 R.7— Subsequent events – Court has power to take notice of them and mould relief according to changed circumstances. AIR 1941 FC 5,AIR 1941 FC 5, AIR 1975 SC 1409, Rel. on.(Para83) (Para 83)
Anno: AIR Comm. C. P. C. (8th Edn.) O. 7, R. 7. N. 4.
(J) Delhi Rent Control Act (59 of 1958) , S.50, S.14— Jurisdiction of Civil Court when barred.
On failure of landlord to establish grounds of eviction, the Rent Controller dismissed eviction petition. During pendency of appeal, the tenant died and appeal was withdrawn. Landlord filed civil suit for possession on different cause of action, namely, that possession of heirs of deceased tenant was unauthorised and unlawful. Held that the Civil Court was competent to entertain the suit.
AIR 1974 Delhi 171 (FB), Explained.(Para 93 94 95)
(K) Delhi Rent Control Act (59 of 1958) , S.8— Service of notice of increase of rent under S.8 on tenant – Not necessary for landlord to resort to Rent Controller before he could lawfully claim increased rent. AIR 1973 Delhi 228, Distinguished.(Para98) (Para 98)
(L) Limitation Act (36 of 1963) , S.14— Exclusion of time – Court of Commercial Sub-Judge, after finding that value of property as determined, exceeded its pecuniary jurisdiction, returned plaint for presentation to proper court – Plaint presented in proper court – Held that plaintiff was prosecuting suit with due diligence and in good faith and that the time during which suit was being prosecuted in the court below should be excluded. (Para 102)
(M) Slum Areas (Improvement and Clearance) Act (96 of 1956) , S.19— Applicability – Suit based on independent title against defendants whose possession was alleged to be unauthorised and unlawful – S.19 not applicable – Permission of competent authority not required. (Para 104)
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