Holding

A legal heir of a tenant is not a trespasser; the Rent Controller retains jurisdiction to adjudicate the eviction, and Order XXII Rule 4 CPC permits the heir, as legal representative, to defend but not to assert an independent title that would oust the Controller's jurisdiction.

Summary

The landlord Om Prakash leased a commercial premises to Musadi Lal, who later sub‑let it to Med Ram without the landlord's written consent. The landlord filed an eviction petition under the Haryana Urban (Control of Rent and Eviction) Act, 1973, invoking s.13(2)(ii)(a). After Musadi Lal's death, his heir Bal Kishan was brought on record as the legal representative and argued that, as an heir of a tenant of a non‑residential premises, he could not be treated as a tenant under s.2(h) and was therefore a trespasser, rendering the Rent Controller without jurisdiction. The Rent Controller rejected this plea, allowed the eviction, and the decision was upheld by the Appellate Authority, the High Court, and finally the Supreme Court, which held that the heir's possession was not trespass and that Order XXII Rule 4 CPC permits the legal representative to defend but not to claim an independent title that would oust the Controller's jurisdiction.

Issues considered

Whether a legal heir of a tenant of non‑residential premises can be treated as a tenant under s.2(h) of the Haryana Urban (Control of Rent and Eviction) Act, 1973.
Whether the Rent Controller retains jurisdiction to pass an eviction decree when the tenant has died and the heir is represented as a legal representative.
Whether Order XXII Rule 4 of the Code of Civil Procedure, 1908 allows the legal representative to raise the plea of trespass and to be impleaded in personal capacity.

Legislation cited

Code of Civil Procedure, 1908s. Order XXII Rule 4
Haryana Urban (Control of Rent and Eviction) Act, 1973s. 13(2)(ii)(a), s. 2(h)

Subjects

evictionsub‑lettinglegal heirtenantrent controljurisdictionCPC Order XXII Rule 4commercial premisestrespasser

Judgment

A

BAL KISHAN
v.
OM PRAKASH & ANR.
B
AUGUST 26, 1986

[E.S. VENKATARAMIAH AND V. KHALID, JJ. ]

Haryana Urban (Control of Rent and Eviction) Act, 1973, Ss. 2(h)
and 13(2) (ii) (a)-Eviction on the ground of sub-letting whether legal
c heir of tenant can be treated as a tenant.

Code of Civil Procedure, 1908, O.XXII Rule 4--Legal representa-
tive of the deceased respondent-Lenant-Whether can be treated as a
tenant and not a trespaper.
D
The appellant was brought on record, as the legal representative
of the deceased-tenant during the pendency of an eviction petition. He
filed an additional written statement contending that the premises in
question being non-residential and commercial premises, the legal heir
of a tenant could not be treated as a tenant as defined under s. 2(h) of
E the Haryana Urban (Control of Rent & Eviction) Act and therefore, the
possession of such legal heir ·of ·a tenant would be that of a trespasser
and, the Rent Controller had no jurisdiction to proceed with the case as
he was not competent to pass a decree for possession against a trespas-
ser. Overruling the said coute11tion, the Rent Controller allowed the
petition for eviction on the ground that the tenant bad sublet the pre-
F mises in favour of respondent No. 2 without the written consent of the ~
landlord. The appellant's appeal and the revision before the Appellate
Authority and the High Court respectively failed.

bismissing the appeal by the appellant,

G HELD: 1. The plea of the appellant that be was holding the prop-
erty as a trespasser is not tenable because the possession of the tenant
being permissive, the possession of the appellant who bad succeeded to
the estate of the tenant as bis heir could not be that of a trespasser in the
circumstances of the case. He could not, therefore, resist the passing of
the decree for eviction on proof of the ground in s. 13(ii) (a) of the Act.
H (525G-H; 526A]
622
BAL KISHAN v. OM PRAKASH [VENKATARAMIAH. J.] 623

2. Order XXll Rule 4 of the Code of Civil Procedure 1908 pro- A
~·
vides that where one of two or more defendants dies and the right to sue
does not survive against the surviving defendant or defendants alone, or
a sole defendant or sole surviving defendant dies and the right to sue
survives, the court, on an application made in that behalf, shall cause
the legal representative of the deceased defendant to be made a party
B
and shall proceed with the suit. Suh-rule (2) of rule 4 of Order XXII
authorises the legal representative of a deceased defendant or respon-
). dent to file an additional written statement or statement of objections
raising all pleas which the deceased tenant had or could have raised
except those which were personal to ~he deceased defendant or res-
pondent. [6250-G)
c
• In the instant case, since the action related to property, the right
to sue did survive and the Rent Controller was right in bringing the
. . legal representative, of the deceased-tenant, on record. The appellant
r could not have therefore, in the capacity of the legal representative of
the deceased-respondent who was admittedly a tenant, raised the plea
that he was in possession of the building· as a trespasser and the petition
for eviction was not maintainable. [625G-H)

3. It is possible for the court in an appropriate case to implead the
heirs of the deceased defendant in their personal capacity also in addi-
r' lion to bringing them on record as legal representatives of the deceased
F
defendant avoiding thereby a separate suit for a decision on the inde-
pendent title. But, in the instant case, the appellant cannot claim the
aforesaid benefit for'·two reasons.' First the appellant had not been
brought on record as respondent in the eviction petition in his personal
~capacity but had been brought on record only as the legal representa-
' live of the tenant. Secondly, even if a prayer had been made to bring the
' appellant on record in his personal capacity, the Rent Controller could F
..j not .have allowed the application and permitted him to raise the plea of
independent title because such a plea would oust the jurisdiction of the
Rent Controller to try the case itself. [626E-F]

Jagdish Chander Chatterjee & Ors. v. Sh Kishan & Anr., [1973)
(j
I SCR 850, referred to.
'
i CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1960
..._ of 1980

From the Judgment and Order dated 23.7.1980 of the Punjab &
H
Haryana High Court in C.R. No. 904 of 1980
624 SUPREME COURT REPORTS [19861 3 S.C.R.

.·\ Mrs. Urmila Kapur and S.N. Agarwala for M/s. B.P. Mahesh- -;,
wari & Co. for the Appellant. ·

S.K. Mehta, M.K. Dua, Aman Vachhar and E.M.S. Anam for
the Respondents.
B
The Judgment of the Court was delivered by

VENKA T ARAMIAH, J. The !st Respon~ent Om Park ash is the A.
landlord of a building situated in Ferozpur Jhirka, District Gurgaon in
the State of Haryana. He had leased out the said premises in favour of~·
one Musadi Lal for a commercial purpose. After Musadi Lal took the
c premises on lease he sub-let the premises in favour of Med Ram-
Respondent No. 2 without the written consent of the landlord Om
Parkash. Thereupon Om Parkash filed a petition for eviction against
Musadi Lal and Med Ram before the Rent Controller, under the pro- -1'
visions of the Haryana Urban (Control of Rent and Eviction) Act,
D 1973 (Act No. 11of1973) (he.einafter referred to as 'th~ Act') on the
ground mentioned iµ section 13(2) (ii) (a) of the Act which entitled the
landlord to file a petition for eviction where the tenant had after the
commencement of the Act without the written consent of the landlord
transferred his right under the lease or sub-let the building. Musadi Lal
and Med Ram, the tenant .and the alleged sub-tenant respectively were
impleaded as the respondents to the petition. During the pendency of 'i
E
the petition Musadi Lal died. Thereupon Bal Kishan, the appellant
herein, filed an application before the Rent Controller to bring him on
record as the legal representative of the deceased Musadi Lal alleging
that he was the adopted son of Musadi Lal. The said application was
opposed by the landlord. Overruling the objections of the landlord the J,
F
Rent Controller ordered that the appellant Bal Kishan should be \
brought on record as the legal representative of the deceased Musadi
Lal. After the above order was passed Bal Kishan filed an additional )•.
written statement contending that the premises in question being non-
residential and commercial premises, the legal heir of a tenant could
not be treated as a tenant as defined under section 2(h) of the Act and,
therefore, the possession of such legal heir of a tenant would be that of
G
a trespasser. That being the case, according to the appellant, the Rent
Controller had no jurisdiction to proceed with the case as the Rent
Controller was not competent to pass a decree for possession against a
trespasser. On the above ground the appellant prayed for the dismissal .)...
of the eviction petition. Overruling the said contention, the learned
H Rent Controller allowed the petition for eviction holding that Musadi
BAL KISHAN v. OM PRAKASH [VENKATARAMIAH, J.J 625

Lal had sub-let the premises in favour of Med Ram, ·Respondent No. 2 A
without the written consent of the landlord. Against the judgment of
the Rent Controller, the appellant filed an appeal before the Appel-
late Authority at Gurgaon. That appeal was dismissed. Against the
judgment in that appeal, the appellant filed a revision petition before
the High Court which was also dismissed. This appeal by special leave
is filed against the judgment of the High Court.
B

In this appeal also it is contended (hat .the proceedings before the
Rent Controller were without jurisdiction since the appellant was not a·

, tenant as defined in section 2(h) of the Act because the building in
question was a non-residential building. That Musadi Lal was a tenant
under Respondent No. 1 is not disputed. We shall assume for purposes c.
of this case but without deciding, that the appellant Bal Kishan was not
entitled to be treated as a tenant of the building in question under the
Act on the death of Musadi Lal. The question for consideration is
whether in the circumstances of this case the Rent Controller had lost
his jurisdiction to try the case before him.
D
Order XXII Rule 4 of the Code of Civil Procedure. 1908 provides
that where one of two or more defendants dies and the right to sue
does not survive against the surviving defendant or defendants alone,
or a sole defendant or sole surviving defendant dies and the right to
sue survives, the Court, in an application made in that behalf, shall
cause the legal representative of the deceased defendant fo be made a E
paity and shall proceed with the suit. Since the action in this case
relate\! to property, the right to sue did survive and the Rent Control-
ler was right in bringing the legal representative of the deceased
L Musadi Lal on record. Sub-rule (2) of rule 4 Order XXII authorises
any person who is brought on record as the legal representative of a
defendant to make any defence appropriate to his character as legal F
representative of the deceased defendant. The said sub-rule authorises
the legal representative of a deceased defendant or respondent to. file
an additional written statement or statement of ob.jections raising all
pleas which the deceased tenant had or could have raised except those
which were personal to the deceased defendant or respondent. In the
instant case Bal Kishan, the appellant could not have, therefore, in the G
capacity of the legal representative of the deceased respondent Musaqi
Lal who was admittedly a tenant, raised the plea that he was in posses-
sion of the building as a trespasser and the petition for eviction was not
maintainable. It is true that it is possible for the Court in an ap-
propriate case to implead the heirs of a deceased defendant in their
H
626 SUPREME COURT REPORTS [1986] 3 S.C.R.

A personal capacity also in addition to bringing them on record as legal
representatives of the deceased defendant avoiding thereby a separate
suit for a decision on the independent title as observed in Jagdish
Chander Chatterjee & Ors. v. Sri Kishan & Anr., [1973] 1 S.C.R. 850.
The relevant part of that decision at page 854 reads thus:
B
"Under sub-clause (ii) of Rule 4 of Order 22 Civil Proce-
dure Code any person so made a part as a legal representa-.
tive of the deceased respondent was entitled to make any
defence appropriate to his character as legal representative
of the deceased respondent. In other words, the heirs and
the legal representatives could urge all contentions which
c the deceased could have urged except only those which
were personal to the deceased. Indeed this does not pre-
vent 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
D legal representatives of the deceased but also in their
personal capacity avoiding thereby a separate suit for a
decision on the independent title."

But in the instant case the appellant cannot claim the benefit of
the above decision for two reasons. First, the appellant had not been
brought on record as a respondent in the eviction petition in his
E
personal capacity but had been brought on record only as the legal
representative of Musadi Lal. Secondly, in the circumstances of this
case, even if a prayer had been made to bring the appellant on record
in his personal capacity, the Rent Controller could not have allowed
the application and permitted him to raise the plea of independent title
because such a plea would oust the jurisdiction of the Rent Controller
F
to try the case itself. The observations made in the Jagdish Chander
Chatterjee & Ors. case (supra) have to be confined to only those cases
where the Court hearing the case has jurisdiction to try the issues
relating to independent title also. The Rent Controller, who had no
jurisdiction to pass the decree for possession against a trespasser could
not have, therefore, impleaded the appt<llant as a respondent to the
G
petition for eviction in his independent capacity. We do not, therefore,
find any substance in the above plea of the appellant. Further the plea
of the appellant that he was holding the property as a trespasser is also
not tenable because the possession of Musadi Lal being permissive,
the possession of the appellant who had succeeded to the estate of
H Musadi Lal as his heir could not be that of a trespasser in the circumst-
BAL KISHAN v. OM PRAKASH !VENKATARAMIAH, J.] 627

ances of the case. He could not, therefore, resist the passing of the A
decree for eviction on proof of the ground in section 13(2) (ii) (a) of
the Act.

We agree with the findings recorded by the Rent Controller.and
the Appellate Authority which have been affirmed by the High Court
8
that Musadi Lal had sub-let the premises without the written consent
of the landlord and, therefore, the legal representative of the tenant
and the sub-tenant were liable to be evicted from the premises under
the Act. Tue appeal, therefore, fails and it is dismissed. There will be
. no order as to costs.

c
M.L.A. Appeal dismissed .

•

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