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2001 DIGILAW 1911 (SC)

HUKAM CHAND v. OM CHAND

2001-11-22

BRIJESH KUMAR, R.C.LAHOTI

body2001
( 1 ) THE land in suit is owned by one Abdul Hamid Khan. In the year 1957, om Chand, Respondent 2, obtained a lease for 99 years from the owner. On 29-3-1957, a registered lease deed was executed between the appellant and amarchand (Respondent 3) (hereinafter collectively called as "the tenants") on the one hand and Respondent 2 Om Chand on the other hand, whereby some area out of the said land measuring 14,740 sq ft was leased out to the tenants for a period of 10 years commencing with effect from 1-3-1957. The land had a low-lying level and the tenants were permitted to raise the level of the land, so as to bring it up to the road level at their own expense. The purpose of letting, as set out in the lease deed, was: "the second party (i. e. the tenants) is entitled to use it by itself or lease it out further to a sub-lessee. " the tenants were permitted by the terms and conditions of lease, to raise construction over the land subject to sanction by the Municipal Committee. On the expiry of the period of lease, the deed provides that the tenants shall not have any right to remain in possession of the land leased out, without the consent of the landlord; the tenants shall settle with the landlord about the construction so raised on the rented land and if the landlord does not wish to purchase the building/construction raised by the tenants, then the tenants shall be liable to remove the material/debris of the construction at their own cost and hand over the possession of the rented land to the landlord, The lease further provides that on failure of the tenants to do so, the landlord shall have a right to take possession of the same. ( 2 ) ON expiry of the period of lease i. e. on 1-3-1967, the respondent landlord Om Chand and his power-of-attorney holder Nanak Chand, joining as co-plaintiffs, filed a suit against the tenants seeking the following reliefs (as reproduced in the judgment of the trial court):"for issuance of permanent injunction directing the tenants to settle the amount of compensation of structure mutually with the plaintiff or to remove the structure at their own cost and for vacating the possession of the property in suit by handing it over to the plaintiff and for realisation of a sum of Rs 19,568 as rent damages for use and occupation of the property situated at Patiala measuring 1630 sq yards out of 2 bighas 15 biswas, forming part of Khasra No. 1996/189 (boundaries described ). " ( 3 ) THE trial court found the plaintiff Om Chand, the landlord, entitled partly to the reliefs prayed for in the plaint and directed the defendant tenants to settle the amount of compensation of the structure on the land in suit mutually with the plaintiff Om Chand within three months and otherwise, to remove the structure at their own cost and to vacate the land in suit and hand over possession of the vacant site to Plaintiff 2 Om Chand. ( 4 ) ONE of the defendant tenants filed an appeal. The plaintiff Om Chand filed cross-objections. Learned Single Judge of the High Court dismissed the appeal, allowed the cross-objections and while confirming the decree passed by the trial court, also directed damages at the rate of Rs 140 per month for the period between 1-3-1967 and 30-9-1969 to be paid by the defendant tenants to the plaintiff Om Chand. The tenant preferred a letters patent appeal which has been dismissed by the Division Bench of the High Court. The present appeal has been filed by special leave. ( 5 ) DURING the pendency of this appeal, a subsequent event was sought to be brought to the notice of this Court, which may be stated inasmuch as a substantial part of the submissions made by the learned Senior Counsel for the appellant, centres around it. The present appeal has been filed by special leave. ( 5 ) DURING the pendency of this appeal, a subsequent event was sought to be brought to the notice of this Court, which may be stated inasmuch as a substantial part of the submissions made by the learned Senior Counsel for the appellant, centres around it. On 2-11-1998, the appellant Hukam Chand filed an affidavit alleging that Om Chand, the plaintiff-respondent, after having secured a decree for eviction of the appellant, had sold the property in four parts vide sale deeds dated 13-7-1998 and after the execution of such sale deeds, no part of the disputed property was left available with Om chand. It is pertinent to note that the appellant did nothing beyond filing this affidavit. Neither the copies of the sale deeds have been placed on record nor any prayer has been made by the appellant to bring on record the transferees pendente lite by taking steps under Order 22 Rule 10 of the Civil Procedure code. On 21-11-2001 i. e. a day before this appeal was to come up for hearing, learned counsel for the respondent Om Chand informed the Court that he had been instructed by the respondent Om Chand not to appear and contest the appeal (as stated by Om Chand in his letter dated 13-11-2001 sent to the counsel and brought to the notice of this Court by the learned counsel ). Om Chands letter to his counsel states, inter alia,"i am no more interested in defending this appeal as I have already sold off the property, subject-matter of the appeal. Let the appeal be decided on merits ex parte. " ( 6 ) LEARNED counsel for the appellant has made four submissions for the consideration of this Court in this appeal. Om Chands letter to his counsel states, inter alia,"i am no more interested in defending this appeal as I have already sold off the property, subject-matter of the appeal. Let the appeal be decided on merits ex parte. " ( 6 ) LEARNED counsel for the appellant has made four submissions for the consideration of this Court in this appeal. It is submitted: firstly, that the suit property, being "rented land" as defined in clause (f) of Section 2 of the East punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as "the Act" for short), the suit for eviction could have been filed only before the Rent controller and therefore, the suit filed before the civil court was not maintainable and should have been dismissed on that ground alone; secondly, that the plaintiff-respondent having parted with his interest in the suit property during the pendency of this appeal, the decree passed in his favour by the trial court and maintained by the High Court, cannot be sustained and should be set aside; thirdly, that the lease deed, as also the decree passed by the trial court, contemplates the issue as to the amount of compensation for the construction raised on the rented. land, being settled between the tenant and the landlord and inasmuch as the rights of the landlord, in whose favour the decree stands, have come to an end, the decree cannot be sustained unless and until persons, having now the interest in the property, come before the court for the purpose of settling the amount of compensation; and lastly, that looking to the nature of rights and obligations of the parties, arising from the lease deed, the plaintiff-respondent should have brought a suit for possession; what has been sought for in the suit is a decree of injunction and such a suit was not maintainable. We will deal with each of the submissions so made. ( 7 ) THE term "rented land" has been defined in clause (f) of Section 2 of the Act to mean "any land let separately for the purpose of being used principally for business or trade". The High Court has, on a perusal of the relevant clauses of the lease deed and the abovesaid definition, held that the purpose of letting out the land could not be said to be "principally for being used for business or trade". The High Court has, on a perusal of the relevant clauses of the lease deed and the abovesaid definition, held that the purpose of letting out the land could not be said to be "principally for being used for business or trade". We have referred to the relevant clause of the lease deed in the earlier part of this judgment. The lease authorises the lessee to use it by himself or to lease it out further to a sub-lessee. The lease also authorises the lessee to raise construction over the leased land, which construction shall be liable to be transferred to the lessor subject to settlement as to compensation, and failing the settlement, the construction shall be liable to be demolished and removed and possession over the vacant land handed over to the landlord. It is an admitted fact that on the leased land the lessee has not chosen to carry on any business or trade; only construction has been raised over the land and such constructed building has been let out to different tenants and sub-tenants. An identical expression, contained in pari materia provision of the Bombay Rent Restriction Act (16 of 1939), came for the consideration of this Court in Bai Chanchal v. Syed Jalaluddin. It was held that where under the lease it was permissible to the lessee to construct houses and let them out or to use the land in any manner, it was impossible to hold that the purpose of letting out was of "being used principally for business or trade". In view of the finding arrived at by the trial court, as also by the learned Single Judge and the Division Bench of the High court, based on appreciation of evidence and construction of clauses of the lease deed, we do not find any reason to dislodge the finding. It has, therefore, to be held that the property forming the subject-matter of lease is not a "rented land" as defined in clause (f) of Section 2 of the Act. The suit was, therefore, maintainable before the civil court. ( 8 ) IT was pointed out by learned counsel for the appellant that prior to the filing of the present suit, the respondent landlord himself had initiated proceedings against the appellant tenant before the Rent Controller under section 13 of the Act on 2-6-1958. The suit was, therefore, maintainable before the civil court. ( 8 ) IT was pointed out by learned counsel for the appellant that prior to the filing of the present suit, the respondent landlord himself had initiated proceedings against the appellant tenant before the Rent Controller under section 13 of the Act on 2-6-1958. A perusal of the application under Section 13 filed before the Rent Controller shows that therein the grievance raised by the landlord was a limited one i. e. of non-payment of rent by the tenant. On notice being served, the tenant tendered the amount of rent and therefore, by order dated 25-6-1958 the Rent Controller directed the application to be rejected solely on the ground that in view of the arrears of rent having been tendered, the cause of action, which had arisen to the landlord, had come to an end. There was neither a contest on the nature of the suit property or the tenancy i. e. whether it related to "rented land", nor on the question of jurisdiction of the Rent Controller. Nothing was decided therein. Merely because earlier the landlord had chosen to file an application before the Rent controller in respect of this very property, the landlord is neither estopped nor excluded from filing a subsequent suit before an appropriate forum. The real question in the present suit is one of deciding the jurisdictional competence of the civil court to try the suit. If the court gives a finding that the civil court has jurisdiction to try the suit and that finding is not erroneous, then, merely because the plaintiff had earlier approached another forum, the right of the plaintiff to approach the correct forum, in a subsequent suit, is not taken away. The first contention of the learned counsel for the appellant, therefore, fails. ( 9 ) AS to the second contention, we have already pointed out that the appellant tenant has not taken any steps for bringing the transferee or the assignee of the respondent landlord on record in this appeal in spite of his having acquired knowledge as early as in November 1988, of the respondent having transferred his title in the suit property through sale deeds. The sale deeds are registered deeds. The appellant tenant could have obtained copies thereof and placed on record the terras and conditions of the transfer, which has not been done. The sale deeds are registered deeds. The appellant tenant could have obtained copies thereof and placed on record the terras and conditions of the transfer, which has not been done. In the absence of any application under Order 22 Rule 10 cpc having been filed by the appellant tenant and in the absence of the relevant transfer deeds having been brought on record, we are handicapped in determining the terms and conditions of the transfer effected by the respondent landlord. The situation is covered, and is taken care of, by Section 52 of the Transfer of Property Act and Order 22 Rule 10 CPC. The transfer is lis pendens. In case of any assignment or creation of any interest during the pendency of a suit, under Order 22 Rule 10 CPC, the suit may, by leave of the court, be continued by or against the person to or upon whom such interest has come or devolved. The Rule is an enabling one and permissive in nature. A Full Bench of the Patna High "court has held in Mahanth Sukhdeo das v, Kashi Prasad Tiwari that in spite of a devolution of interest having taken place during the pendency of a litigation, the same can continue. It is for the assignee to appear in the suit at any stage and defend himself with the leave of the court but he cannot seek to be brought on record as of right. The discretion vests in the court. Though ordinarily the leave will not be refused, nevertheless the court would exercise its discretion in granting the leave on the facts and circumstances of a given case. The tenant having suffered a decree from the High Court, it was for him to make an appropriate application and seek leave of the court for prosecuting appeal against the person in whom the right and title in the suit property has come to vest. It was also open to such transferee pendente lite to seek leave of the court for coming on record. The Full Bench has opined in Sukhdeo Das case that such assignment or devolution of right during the pendency of the litigation did not arrest the progress of the litigation. We agree with the view taken by the full Bench. It was also open to such transferee pendente lite to seek leave of the court for coming on record. The Full Bench has opined in Sukhdeo Das case that such assignment or devolution of right during the pendency of the litigation did not arrest the progress of the litigation. We agree with the view taken by the full Bench. In our opinion, the only exception is when the transfer of property forming the subject-matter of the suit, pendente lite, results in wiping out the cause of action itself or deprives the transferee of the right to decree, such as where the cause of action was personal to the original plaintiff. Otherwise the only result is that such transferee steps into the shoes of his predecessor-in-interest and remains bound by the result of the suit and would not, at a later stage, be permitted to raise the plea that he was not bound by the result of the litigation because he was not brought on record of the suit and impleaded as a party. The second contention of the learned counsel for the appellant also fails. ( 10 ) THE third contention merits only a summary disposal. Clause (7) of the lease deed casts an obligation on the tenant to settle the question of compensation, failing which the lease obliges him to remove the materialdebris of the construction at his own cost and hand over the possession of the land as vacant land to the landlord. The decree of the trial court, consistently with the terms of the lease, allows the appellant tenant liberty of making such settlement. That liberty is still available to the appellant tenant and he may settle the compensation with the present landlords, in whom the right and title of the respondent Om Chand have come to vest. ( 11 ) AS to the last contention, pointing out the defect in the relief sought for in the plaint, we find the copy of the plaint having not been brought on record by the appellant to substantiate his contention. We also find such a plea as to non-maintainability of the suit for want of claiming relief in an appropriate forum, having not been raised before the trial court and pursued before the learned Single Judge and the Division Bench. We also find such a plea as to non-maintainability of the suit for want of claiming relief in an appropriate forum, having not been raised before the trial court and pursued before the learned Single Judge and the Division Bench. In Rukhmabai v. Laxminarayan this Court has taken the view that if the plaintiff fails to ask for a relief, which usually should have been asked for, then an objection by the defendant seeking dismissal in limine of the suit on such ground, should be raised at the earliest point of time, in which event the plaintiff could ask for necessary amendment in the plaint. This Court upheld it as a well-settled rule of practice not to dismiss the suits-automatically but to allow the plaintiff to make necessary amendment, if he seeks to do so. Inasmuch as a plea as to non-maintainability of suit, for want of necessary relief having been sought for in the plaint, was not raised before the High Court or the court below, such a plea was not permitted to be raised for the first time before the supreme Court in Rukhmabai case. Even otherwise, from the wording of the relief sought for in the plaint, as quoted by the learned trial Judge in his judgment, we find that not only an injunction, but also a relief for vacant possession of the property appears to have been sought for in the plaint. The objection raised for the first time before this Court is wholly devoid of any merit and cannot be entertained. ( 12 ) FOR the foregoing reasons, we find the appeal devoid of any merit and liable to be dismissed. The appeal is dismissed accordingly.