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1985 DIGILAW 162 (KAR)

ABDUL RAHIM v. SYED ABDUL RAHAMAN

1985-03-26

N.VENKATACHALA

body1985
N. VENKATACHALA, J. ( 1 ) WHETHER a person, who was in occupation of a tenanted premises along with its tenant against whom a petition for eviction under the Karnataka Rent control Act, 1961 ("the Act"), if continues to occupy that premises even after the death of the tenant, can be brought on record in the pending eviction petition as the legal representative of the deceased tenant, is the dispute which is required to be resolved in this revision petition. ( 2 ) ONE Abdul Rahim was a tenant of certain premises under Abdul Rahaman, the respondent here, who filed in the Court below, an eviction petition under the Act, seeking eviction of the former from that premises. During the pendency of the eviction petition, Abdul rahim, the tenant, died. One Abdul majeed, who was living in the said premises along with its tenant and continued to live therein after the death of the tenant, made an application, LA. III, in the eviction petition purporting to be under Order 22 Rule 3 of the Code of Civil Procedure, 1908 ("the Code"), seeking to come on record as the legal representative of the deceased tenant (Abdul Rahim ). Thereafter, the landlord (the respondent here) also made an application, I. A. IV, purporting to be under Order 22 Rule 4a of the Code in the eviction petition, seeking leave of the Court to proceed with the eviction petition without bringing on record the legal representative of the deceased tenant. By its order dated 8th February 1985, the Court below dismissed I. A. III and allowed I. A. IV. The validity of that order is questioned in this revision petition, by the applicant in I. A. III. ( 3 ) THE Court below has made the order under revision, on its view that the petitioner here had not placed any document to show that in law, he represents the estate of the deceased tenant, though it had come to the conclusion that the documents produced by the petitioner here indicated that he was residing in the tenanted premises. Whether the petitioner here was not entitled to be brought on record as the legal representative of the deceased tenant, when it was held that he was residing in that premises after the death of the tenant, is the dispute which requires to be resolved, as stated at the outset. Whether the petitioner here was not entitled to be brought on record as the legal representative of the deceased tenant, when it was held that he was residing in that premises after the death of the tenant, is the dispute which requires to be resolved, as stated at the outset. ( 4 ) SECTION 51 of the Act reads :"51. Proceedings by or against legal representative. (1) Any application made, appeal preferred, or proceeding taken under this Act by or against any person, may, in the event of his death be continued by or against his legal representative. (2) where any application, appeal or other preceedirg would have been made, preferred or taken under this act by or against any person such application appeal or other proceeding may, in the event of his death be made, preferred or taken by or against his legal representatives. " ( 5 ) WHILE sub-section (2) above refers to the initiation of proceedings referred to therein, by the legal representative of the deceased landlord or against the legal representative of the tentant, sub-section (1) above refers to continuation of a proceeding already initiated by or against a legal representative when the death of the landlord or the tenant, as the case may be, does occur. As to who could be the legal representation referred to in Section 51 of the Act, is not specified in the Act. But, Section 59 (2) (d) of the Act enables the State Government to make rules as required under the Section, in the matter of filing applications for making legal representatives of the deceased persons parties to proceedings under the act and the time within which such applications shall be preferred. Rule-30 so made under the Karnataka Rent control Rules, 1963 ("the Rules"), enables the makinrg of applications by or against the legal representatives contemplated under Section 51 of the Act, within the time ?pecified there'n, inter alia, making the provisions of Order 22 of the Code with necessary modifications, applicable. Further, Rule-35 of the rules provides that in deciding any question relating to procedure not specifically provided for by the Rules, the Court should, as far as possible, be guided by the provisions in the Code. Further, Rule-35 of the rules provides that in deciding any question relating to procedure not specifically provided for by the Rules, the Court should, as far as possible, be guided by the provisions in the Code. A combined reading of Section 51 of the act and Rules 30 and 35 of the Rules, makes it obvious that the provisions contained in the Code governing the procedure relating to bringing on record the legal representatives of a deceased party in a proceeding under the Code, apply to a proceeding under the Act, whether the deceased party concerned therein is a landlord or a tenant, provided that there is no inconsistent provision made in that regard in the Rules (See : M. K. Venkatachalapathy Setty sannanarasaiah I. L. R, 1984 Karnataka 362 ). ( 6 ) AS the Rules do not specify, who a legal representative of a deceased party in a proceeding under the Act could be, there is no escape from having recourse to the provisions of the Code to identify such a legal representative. The provision in the Code, which defines a legal representative, is found in sub-section (11) of Section 2 thereof. It reads : " (11) 'legal representative' means a person who, in law, represents the estate of a deceased person and includes any person who inter-meddles with the estate of the deceased and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued. " (Underlining is mine) ( 7 ) FROM the underlined portion of the definition above, it is seen that any person who inter-meddles with the estate of the deceased person, would be his legal representative. When the Court below has held that Abdul Majeed, the petitioner here, has been residing in the premises concerned after the death of its tenant, Abdul Rahim, it has to be concluded that Abdul Majeed is a legal representative 0f deceased Abdul Rahim in his character as an inter-meddler of the latter's estate. Consequently, the views expressed by the Court below to the contrary, are to be regarded as unsustainable. From this it follows that the petitioner here is entitled to be brought on record as the legal representative of deceased Abdul Rahim. Consequently, the views expressed by the Court below to the contrary, are to be regarded as unsustainable. From this it follows that the petitioner here is entitled to be brought on record as the legal representative of deceased Abdul Rahim. ( 8 ) HOWEVER, the fact that the petitioner is held to be entitled to be brought on record as the legal representative of deceased Abdul Rahim, who was the tenant of the premises concerned, in his (Abdul Majeed's) character as an inter-meddler, it is clarified, doe, not prevent the respondent (the landlord) from establishing that he (Abdul Majeed) cannot desist the eviction proceedings taken against deceased Abdul Rahim, having regard to the provisions in the act or otherwise. ( 9 ) IN the result, I allow this civil revision petition, set aside the order under revision, partly allow the application, I. A. III, direct the respondent (the landlord) to bring on record the petitioner here as the legal representative of deceased Abdul Rahim in the eviction petition, leject I. A. IV and further direct the trial Court to dispose of the eviction petition thereafter, expeditiously. --- *** --- .