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2019 DIGILAW 710 (KER)

Anil P. Varghese v. Naji

2019-08-30

A.HARIPRASAD, T.V.ANILKUMAR

body2019
ORDER : 1. The short question arising for adjudication in this revision is: Whether the principles enunciated in Order XXII Rule 4(4) of the Code of Civil Procedure, 1908 (in short, the Code) read with Section 22 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (in short, the Act) could be invoked to surmount the defect of non-impleadment of legal representatives of a tenant in a petition for eviction under Sections 11(2)(b), 11(3), 11(4)(i), 11(4)(ii) and 11(4)(iv) of the Act? Can it be assumed that the Rent Control Court had granted an implied exemption to the petitioner from the necessity of substituting legal representatives of the deceased 1st respondent? 2. Heard the learned counsel for the revision petitioner and respondents. 3. The facts in nut shell are as follows: Respondents filed a petition for eviction with deceased Kunjamma Thomas as the 1st respondent and the revision petitioner as the 2nd respondent. It is the specific case pleaded by the respondents in the eviction petition that Kunjamma Thomas was the tenant to whom the building had been entrusted for a monthly rent. According to them, Kunjamma Thomas without the knowledge and consent of the landlords, sub-let the building to the revision petitioner. It is also contended that the sub-lease is an objectionable one. Respondents' case, therefore, is that deceased Kunjamma Thomas and the revision petitioner are liable to be evicted on the aforementioned grounds. 4. The revision petitioner contended that he is neither a tenant nor a sub-tenant. He was only helping deceased Kunjamma Thomas, who was none other than his mother's sister, in conducting the business. The courts below disbelieved the case of the revision petitioner and passed an order of eviction despite the fact that deceased Kunjamma Thomas did not appear before the trial court and file any counter statement. It is an unchallenged fact that pending the eviction petition before the first court, Kunjamma Thomas (tenant) died. Her legal representatives were not impleaded. Repelling the contentions raised by the revision petitioner, the Rent Control court ordered eviction against him under all the grounds. The revision petitioner approached the Appellate Authority under Section 18 of the Act. The appellate court after re-appreciating the evidence, agreed with the trial court and confirmed the order of eviction. Her legal representatives were not impleaded. Repelling the contentions raised by the revision petitioner, the Rent Control court ordered eviction against him under all the grounds. The revision petitioner approached the Appellate Authority under Section 18 of the Act. The appellate court after re-appreciating the evidence, agreed with the trial court and confirmed the order of eviction. When a specific issue regarding the legal infirmity in not impleading the legal representatives of the deceased tenant was brought to the notice of the lower appellate court, it answered the question saying that in the light of Order XXII Rule 4(4) of the Code, it can be inferred that the Rent Control court had granted an implied exemption to the revision petitioner from substituting the legal heirs of 1st respondent. 5. Learned counsel for the revision petitioner contended that the Appellate Authority seriously went wrong in understanding the legal consequences of non-impleadment of the legal representatives of a tenant in a proceedings under the Act. According to him, whole proceedings abated on the ground of non-impleadment of the legal representatives of the 1st respondent. Learned counsel for the respondents tried to sustain the reasoning of the lower appellate court. 6. We heard both sides elaborately on this point. In order to appreciate the contentions, we deem it apposite to extract Section 22 of the Act: “22. Proceedings by or against Legal representative - The Provisions of section 146 and Order XXII of the Code of Civil Procedure, 1908 (5 of 1908), shall, as far as possible, be applicable to the proceedings under this Act.” 7. Order XXII Rule 4 of the Code is also to be looked into for resolution of the dispute. It reads thus: “4. Procedure in case of death of one of several defendants or of sole defendant - (1) Where one of the 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 and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. (4) The court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. (5) Where:- (a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963) and the suit has, in consequence, abated. (b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of the Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.” 8. Section 22 of the Act clearly says that provisions in Section 146 and Order XXII of the Code shall, as far as possible, be applicable to the proceedings under the Act. It is axiomatic, the entire provisions of the Code are not applicable to the proceedings before the Rent Control Court. Section 23 of the Act enumerates the powers which can be invoked by the Rent Control Court and Appellate Authority. It is axiomatic, the entire provisions of the Code are not applicable to the proceedings before the Rent Control Court. Section 23 of the Act enumerates the powers which can be invoked by the Rent Control Court and Appellate Authority. Since Section 22 of the Act specifically mentions about the application of Section 146 and Order XXII of the Code, we have no difficulty in understanding that the authorities under the Act could take recourse to the provisions in the Code for impleading the legal representatives in the event of death of one of the several respondents or of the sole respondent in an eviction petition. For our purpose, we need only focus on sub-rule (4) of Order XXII Rule 4 of the Code. 9. On a close reading of Order XXII Rule 4(1) of the Code, it will be amply clear that two situations are contemplated therein. Firstly, where one of two or more defendants dies and right to sue does not survive against the surviving defendant or defendants alone. Secondly, a sole defendant or sole surviving defendant dies and the right to sue survives. In both these situations, the court, on an application made in that behalf, shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit. Code does not specify as to who could file an application to implead the legal representatives of the deceased defendant, thereby impliedly permitting both the parties to make an application in that regard. 10. But, the situation in Sub-Rule (4) of Order XXII Rule 4 of the Code is entirely different. On a careful scrutiny of the provision, it can be seen that the court's power to exempt the plaintiff from the necessity of substituting the legal representatives of any defendant, who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing, could be applied only in a case where, there is plurality of defendants in the suit. This view will be fortified from the later portion of the provision. This view will be fortified from the later portion of the provision. Court's power to exempt the plaintiff from the necessity of substituting legal representatives of a defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit, could be exercised only in a case where the court is obliged to pronounce a judgment on adjudication after hearing both sides for which there must be presence of other parties in the suit. In a case with a sole defendant, who failed to file a written statement or who failed to appear and contest the suit, the court's power to decide the case will be governed either by Order VIII Rule 10 or under Order IX Rule 6(a), if it is proved that summons was duly served, read along with Order XVII Rule 2 of the Code as the situation in the case may require. Normally, Explanation to Order XVII Rule 2 may not apply in such a situation. 11. Likewise, application of the said principles would arise only when there are multiple respondents in a petition filed for eviction under Section 11 of the Act. It is clear from Section 11(4)(1) that if a tenant, after the commencement of the Act, without the consent of the landlord, transfers his rights under the lease or sub-lets the entire building or any portion thereof, if the lease does not confer on him any right to do so, it will amount to an objectionable sub-lease and thereby the landlord gets a right to evict the tenant. Proviso to Section 11(4)(1) of the Act makes it clear that an application for eviction by invoking the above provision could not be made for the first time in respect of one and the same tenancy, unless the landlord had sent a registered notice to the tenant intimating the contravention of the said condition of the lease. The Proviso does not speak about sending any notice to the alleged sub-tenant. If such a notice was sent at the instance of the landlord to the tenant, then he should terminate the transfer or sub-lease, as the case may be, within 30 days of receipt of the notice or refusal thereof to avert an order of eviction. From the statutory scheme, it will be clear that the Act does not recognise the rights of an objectionable sub-tenant. From the statutory scheme, it will be clear that the Act does not recognise the rights of an objectionable sub-tenant. We shall quote Section 21 of the Act. “21. Order under the act to be binding on subtenants - Any order for the eviction of a tenant passed under this Act shall be binding on all sub-tenants under such tenant, whether they were parties to the proceedings or not, provided that such order was not obtained by fraud or collusion. In cases where sub-letting is allowed under the original agreement of tenancy the sub-tenant shall be made a party to the proceedings if he had given notice of the sub-tenancy to the landlord.” 12. Theoretically, an eviction petition can be filed without impleading the alleged sub-tenant and an order of eviction on the ground of objectionable sub-lease could be secured by the landlord, if sufficient materials are placed before the court. On a careful reading of Section 21 of the Act, it can be seen that an alleged sub-tenant is not a necessary party to the proceedings. However, in reality, non-impleadment of a sub-tenant may lead to disputes like commission of fraud, collusion etc. likely to be set up by him later, as between the landlord and tenant. True, it may be wise to implead the alleged sub-tenant also. At the most, he can be considered only as an eo-nominee party. Nevertheless, mere impleadment of an alleged subtenant ipso facto will not absolve the landlord from his liability of impleading the legal representatives of the original tenant, who died pending the proceedings, especially when the landlord's specific case is that the jural relationship existed only between him and deceased tenant. It is also definite that the legal representatives of the tenant are necessary parties. 13. Learned counsel for the revision petitioner placed reliance on two decisions rendered by the Supreme Court in Zahirul Islam vs. Mohd. Usman and Others, (2003) 1 SCC 476 and T. Gnanavel vs. T.S. Kanagaraj and Another, (2009) 14 SCC 294 . It is contended that the lower appellate court erred in assuming that the Rent Control Court had granted an implied exemption to the eviction petitioners from the necessity of substituting the legal representatives of deceased 1st respondent. Usman and Others, (2003) 1 SCC 476 and T. Gnanavel vs. T.S. Kanagaraj and Another, (2009) 14 SCC 294 . It is contended that the lower appellate court erred in assuming that the Rent Control Court had granted an implied exemption to the eviction petitioners from the necessity of substituting the legal representatives of deceased 1st respondent. It is also urged that it is wrong to assume an implied exemption, as the exemption should have been granted by the court on applying its mind to the facts and circumstances in the case. It is also contended that even though no application is required for granting an exemption under sub-rule (4) of Order XXII Rule 4 of the Code, application of mind by the court should be revealed by passing a specific order in that regard. 14. In Zahirul Islam's case (supra), the Supreme Court has held in paragraph 7 as follows: “7. In the instant case, it is stated by the learned counsel appearing for the appellant that no permission contemplated under sub-rule (4) was obtained from the court exempting the plaintiff from bringing on record the legal representative of the deceased Defendant 2. From the order under challenge also, it does not appear that any such permission was sought or granted by the court. In this view of the matter, the order under challenge cannot be sustained. It is, accordingly, set aside. The appellant was, therefore, entitled to be brought on record in the suit.” 15. The principles of the above decision were restated in T. Gnanavel's case (supra). The relevant paragraphs in the above decisions are 23, 25, 26 and 28. 16. Finally, it was concluded that a decree passed without impleading the legal representatives of a deceased party by passing a specific order leads to a decree against a dead person and therefore it becomes a nullity. 17. If we apply the above principles to this case, no other way except to find that the order of eviction passed on all the grounds becomes a nullity in the absence of the legal representatives of deceased 1st respondent on the party array, because she was the only necessary party to the proceedings. 18. 17. If we apply the above principles to this case, no other way except to find that the order of eviction passed on all the grounds becomes a nullity in the absence of the legal representatives of deceased 1st respondent on the party array, because she was the only necessary party to the proceedings. 18. It is an indisputable proposition that on the death of a statutory tenant, the tenancy right devolves on his/her legal heirs or representatives, as the case may be, as one package, which is indivisible in nature. In the absence of anyone on the party array representing the tenancy right, the courts could not have passed an order of eviction with a party on the array having no lawful claim on the tenancy right. Non-impleadment of any of the legal representatives of deceased original tenant will have the effect of securing an order of eviction against a dead person and therefore the order in its entirety falls to the ground. 19. Therefore, the finding of the trial court as well as the appellate court that there can be an implied exemption of impleadment of the legal representatives of the original tenant is a wrong proposition in law for multiple reasons. The eviction order is premised on a mistaken legal notion and it cannot be sustained. 20. In the result, the revision petition is allowed and the concurrent orders passed by the Rent Control Court, Chengannur, in R.C.P. No. 2 of 2015 and the Rent Control Appellate Authority, Mavelikkara, in R.C.A. No. 7 of 2017 are hereby set aside. The eviction petition is abated on the death of the 1st respondent. 21. All pending interlocutory applications are closed.