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2023 DIGILAW 1999 (ALL)

Ram Bachani v. Additional District Judge Lucknow

2023-08-21

ALOK MATHUR

body2023
JUDGMENT : (Alok Mathur, J.) 1. By means of the present writ petition, the petitioner has challenged the order dated 13.10.2009 passed by Additional District Judge, Lucknow thereby dismissing the appeal against the order passed by the prescribed authority under the Public Premises Act, 1971 (herein after referred to as the ‘Act of 1971’) and also the order dated 03.10.2002 passed by the Prescribed Authority/Estate Officer, Central Bank of India, Zonal Officer, Bhopal. 2. The facts necessary for deciding present controversy shown any unnecessary details are that the respondent, Central Bank of India, is the landlord of the premises situated at 73, Hazratganj, Lucknow and Jawahar Lal Bhargawa, predecessor in interest of the petitioner was the tenant of the north eastern portion of the ground floor of the said premises. In 1976, the respondent Bank had moved an application for release of the premises in the tenancy of Jawahar Lal Bhargawa before the prescribed authority under the Uttar Pradesh Urban Building (Regulation and Letting and Rent and Eviction) Act, 1972 being in urgent need of the premises. The said application was dismissed by order dated 01.09.1976. 3. Aggrieved by the said order, an appeal was preferred by the respondent-bank. During the pendency of the appeal, certain amendments came into effect in the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and an application was moved on behalf of Jawahar Lal Bhargava that the remedy for eviction lay before the prescribed authority under the said Act and consequently on the said assertion, the appeal was dismissed. The suit for eviction was also filed in the Court of Small Causes Act, Lucknow wherein SCC Suit No. 583/1980 was registered, the same was also dismissed on 31.03.1982. 4. Subsequently, Jawahar Lal Bhargava shifted to Delhi and also transferred the said premises to the petitioner without knowledge and consent of the respondent-bank. It is also the claim of the respondent that the tenant was in arrears of rent from 01.04.1997 to 06.07.1999 and had also terminated the tenancy by giving a notice dated 03.06.1999, but the tenant did not vacate the said premises on the expiry of the period provided for in notice and accordingly moved an application under the Public Premises Eviction Act for eviction of the tenant on the ground that the tenants have become unauthorized occupants as defined in the Act. 5. 5. The prescribed authority while allowing the application filed by the respondent-bank has considered the fact that the respondents have terminated the tenancy by giving a notice dated 03.06.1999 and after expiry of 30 days from the said notice the tenants have become unauthorised occupants. 6. Contesting the aforesaid claim of the bank, the tenants on the other hand had stated that they had already paid the rent in advance by means of cheque and also that respondent bank is not in urgent or bonafide need of the said premises and prayed to prescribed authority to discharge the notice issued by the Estate Officer. The respondent bank on the other hand had stated that it had not accepted or encashed the cheque and it has no intention of receiving the amount towards rent of the disputed premises and mere receiving of the cheque/pay orders does not amount to acceptance of the rent and consequently prayed that the tenants be declared unauthorised occupants and evicted from the tenanted premises. 7. The prescribed authority also did not accept the contention of the tenants that notice in the present case had not been given by the Estate Officer to Mr. Ram Bachani (petitioner) who is running the business in the name of M/S A. James & Company. He held that Mr. Ram Bachani had not claimed the interest in the premises even after having knowledge of the proceedings as he has remained present on 03.08.2002 i.e. the date of arguments and also signed the order-sheet and no objection were raised by him with regard to issuance of notices under Section 4 & 7 of the Public Premises and Eviction Act, 1971. 8. It is in the aforesaid circumstances that the application for eviction was allowed and the respondents therein was directed to pay Rs. 2428/65 being the arrears of rent from 01.04.1997 to 06.07.1999 @ Rs. 89/95 per month and damages @ 1000/-to the applicant from 07.07.1999 to the date of possession. 9. Against the order of prescribed authority, the appeal was filed before the District Judge, Lucknow by the petitioner. 2428/65 being the arrears of rent from 01.04.1997 to 06.07.1999 @ Rs. 89/95 per month and damages @ 1000/-to the applicant from 07.07.1999 to the date of possession. 9. Against the order of prescribed authority, the appeal was filed before the District Judge, Lucknow by the petitioner. It is for the first time in the appeal it was disclosed that Sri Jawahar Lal Bhargava by means of sale letter dated 03.04.1999 had sold the goods well stock in trade, furniture, fixtures and fittings and articles associated thereto of the business running in the name and style of M/S A. James and Company to the petitioner – Sri Ram Bachani. The said sale letter also stated that Sri Ram Bachani would be free to take lease directly from the owner and till then he shall pay rent and other dues to the owner. In the said appeal it was also stated that the erstwhile tenant Jawahar Lal Bhargava had died on 06.08.2002 and the order of the prescribed authority dated 02.10.2002 is illegal and arbitrary inasmuch as it was rendered after the death of the defendant therein and the said order would be a nullity. 10. The District Judge duly considered the arguments of the petitioner as well as respondent bank. The first aspect he considered was as to whether the petitioner had any right to file the present appeal inasmuch as he was not the legal heir of Jawaharlal Bhargava nor a party before the prescribed authority. In this regard, he has discussed the contents and effect of the sale letter dated 03.04.1999 and has held that the said letter being an unregistered document cannot transfer any rights in the immovable property and consequently the petitioner cannot inherit the rights of the tenant Sri Jawaharlal Bhargava. The contents of the said letter was further duly considered, according to which there is a clear stipulation that the petitioner would be free to take lease directly from the owner. In this regard, it was considered that neither the sale letter was ever disclosed to the respondent bank nor any prior permission taken from the landlord of the said premises before entering into the said premises and hence the status of the petitioner would be nothing more than mere trespasser. 11. In this regard, it was considered that neither the sale letter was ever disclosed to the respondent bank nor any prior permission taken from the landlord of the said premises before entering into the said premises and hence the status of the petitioner would be nothing more than mere trespasser. 11. It has been submitted that Jawaharlal Bhargava had died during the pendency of the proceedings before the prescribed authority and the decree has been passed against a dead person would be a nullity. Repelling the said contention, it was submitted that firstly the petitioner had all along contested the matter before the prescribed authority on behalf of the Jawahar Lal Bhargava. The case was listed on 03.08.2002 on which date the petitioner had appeared and also signed the order-sheet on 30.08.2022 and the case was adjourned to 14.08.2002 for filing of the written arguments by the respondent and the bank had declined to file the written submissions. The order-sheet of 24.08.2002 records that written arguments have been filed and the judgment was pronounced on 03.10.2002. It is also on record that written arguments on behalf of the Jawaharlal Bhargava was filed on 04.08.2002 two days prior to his death and the judgment was delivered on the basis of the written arguments and no hearing took place subsequent to 04.08.2002. 12. It is in the aforesaid facts and circumstances of the case that the appellate Court held that as per the provisions contained in Order 22 Rule 6 CPC the death had occurred after hearing of the case and before delivering of the judgment and accordingly the proceedings of the appeal did not abate and hence rejected the contention made by the petitioner. 13. Sri B.K. Saxena, learned counsel for petitioner has vehemently urged that the order of the prescribed authority was illegal and arbitrary as the same has been passed against a dead person and the appellate Court has not appreciated the fact and law in its correct perspective and accordingly the application itself deserves to be rejected. 14. In support of his submissions, he has relied upon the judgment of the Supreme Court in the case of Gurman Singh (dead) through legal representations and others Vs. Gur Bachan Karu (Dead), 2007 (13) SCC 414, wherein it has been held as under:- “18) The law on the point is well settled. 14. In support of his submissions, he has relied upon the judgment of the Supreme Court in the case of Gurman Singh (dead) through legal representations and others Vs. Gur Bachan Karu (Dead), 2007 (13) SCC 414, wherein it has been held as under:- “18) The law on the point is well settled. On the death of a party to the appeal, if no application is made by the party concerned to the appeal or by the legal representatives of the deceased on whom the right to sue has devolved for substitution of their names in place of the deceased party within 90 days from the date of death of the party, such appeal abates automatically on expiry of 90 days from the date of death of the party. In other words, on 91st day, there is no appeal pending before the Court. It is “dismissed as abated”. 19) Order 22 Rule 3(2) which applies in the case of the death of plaintiff/appellant and Order 22 Rule 4(3) which applies in the case of defendant/respondent provides the consequences for not filing the application for substitution of legal representatives by the parties concerned within the time prescribed. These provisions read as under:- Order 22 Rule 3(2) “Where within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.” Order 22 Rule 4(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.” 20) In the case at hand, both the aforementioned provisions came in operation because the appellant and the two respondents expired during the pendency of second appeal and no application was filed to bring their legal representatives on record. As held above, the legal effect of the non-compliance of Rules 3(2) and 4(3) of Order 22, therefore, came into operation resulting in dismissal of second appeal as abated on the expiry of 90 days from 10.05.1994, i.e., on 10.08.1994. The High Court, therefore, ceased to have jurisdiction to decide the second appeal which stood already dismissed on 10.08.1994. Indeed, there was no pending appeal on and after 10.08.1994. The High Court, therefore, ceased to have jurisdiction to decide the second appeal which stood already dismissed on 10.08.1994. Indeed, there was no pending appeal on and after 10.08.1994. 21) In our considered view, the appeal could be revived for hearing only when firstly, the proposed legal representatives of the deceased persons had filed an application for substitution of their names and secondly, they had applied for setting aside of the abatement under Order 22 Rule 9 of the Code and making out therein a sufficient cause for setting aside of an abatement and lastly, had filed an application under Section 5 of the Limitation Act seeking condonation of delay in filing the substitution application under Order 22 Rules 3 and 4 of the Code beyond the statutory period of 90 days. If these applications had been allowed by the High Court, the second appeal could have been revived for final hearing but not otherwise. Such was not the case here because no such applications had been filed. 22) It is a fundamental principle of law laid down by this Court in Kiran Singh’s case (supra) that a decree passed by the Court, if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree holder. The reason is that the defect of this nature affects the very authority of the Court in passing such decree and goes to the root of the case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree passed by a Court for or against a dead person is a “nullity” (See-N. Jayaram Reddy & Anr. Vs. Revenue Divisional Officer & Land Acquisition Officer, Kurnool, (1979) 3 SCC 578, Ashok Transport Agency vs. Awadhesh Kumar & Anr., (1998) 5 SCC 567 and Amba Bai & Ors. Vs. Gopal & Ors., (2001) 5 SCC 570 ). 23) The appellants are the legal representatives of defendant Nos. 2 and 4 on whom the right to sue has devolved. They had, therefore, right to question the legality of the impugned order inter alia on the ground of it being a nullity. Such objection, in our opinion, could be raised in appeal or even in execution proceedings arising out of such decree. 2 and 4 on whom the right to sue has devolved. They had, therefore, right to question the legality of the impugned order inter alia on the ground of it being a nullity. Such objection, in our opinion, could be raised in appeal or even in execution proceedings arising out of such decree. In our view, the objection, therefore, deserves to be upheld. It is, accordingly, upheld. 24) In the light of foregoing discussion, we allow the appeal and set aside the impugned judgment/decree.” 15. Sri V.K.Srivastava learned counsel for the respondent on the other hand has opposed the writ petition and supported the impugned orders. He has contented that at the time of death of the original respondent the pleadings had been completed and even the written arguments had been filed. The evidence had also been recorded and written arguments had been submitted. The parties had agreed that the matter be decided on the basis of written arguments and no oral submissions to place after filing of the written arguments. The death of the original respondent having occurred after filing of the written arguments and before the delivery of the judgment provisions of orders 22 rule 6 would come into operation, and in the present facts of the case the proceedings did not abate. He further submitted that the petitioner did not have any locus to maintain the appeal against the order of the prescribed authority, as he had not disclosed about the sale letter through which he had purchased the business of the original respondent and also entered into the tenanted premises. He further submitted that no leave to appeal was sought by the petitioner and therefore the same was not maintainable at his behest, and there is no infirmity in the impugned orders. 16. It was further submitted on behalf of the respondent that the petitioner had participated in the proceedings, which is evidenced by the fact that he had signed on the order sheet on 03.08.2002, as representing the interest of the original respondent (Jawaharlal Bhargava) but never disclosed that in fact he has entered into the tenanted premises and in case any decree of eviction is passed, the same would have to be enforced against him, and therefore he deliberately concealed relevant and material facts from the prescribed authority and has therefore not come with clean hands before this court. It was submitted that the appellate court had rightly held that the petitioner did not have any locus to maintain the appeal as he was not a party before the prescribed authority, and that he does not step into the shoes of the original tenant that is Jawaharlal Bhargava, as the said letter was on unregistered stamps paper, and as such no rights in immovable property can flow into the hands vendee. 17. I have heard the learned Counsel for the parties and perused the record. With regard to the argument raised by the petitioner that the proceedings before the prescribed authority ought to have abated it is noticed that according to provisions of Order 22 CPC provisions have been made for procedure to be adopted in case either the plaintiff or the defendant dies during the pendency of the proceeding. According to the Order 22 Rule 3(2) CPC where one of the several plaintiffs or a sole plaintiff dies and no application is made for substitution during the period of limitation, the suit shall abate so far as the deceased plaintiff is concerned, while according to Rule 4 where in case death of defendants or the sole defendant where within the time limited by law no application is made, the suit shall abate against the deceased-defendant. 18. Order 22 Rule 6 of CPC provides that notwithstanding anything contained in the aforesaid rules where the cause of action survives or not there shall be no abatement by reason of death of either party between the conclusion of hearing and pronounce of judgment, and the judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect. 19. A bare reading of the aforesaid provisions clearly indicates that the purpose behind substituting the deceased plaintiff or defendant is that the party to the case should have full opportunity to contest and participate in the said proceedings and in case any of the parties dies during the proceeding and the right to sue survives then it is incumbent upon his or her legal representative to be made parties before proceeding further in the matter. But order 22 Rule 6 CPC envisages a situation where all that is required to be done during the proceedings by the parties is complete and where even the arguments have concluded and only the judgment has to be delivered, then if the plaintiff or defendant dies the proceedings will not abate and shall have the same force as the judgment was pronounced prior to the death of said deceased, plaintiff or defendant. 20. It is evident that after hearing takes place, no further steps are required to be taken by any of the parties as by that time all the pleadings, evidences and filing of documents and oral submissions are complete and the court only has to pronounce its judgment. A death of a party during such period would not have the effect of abatement of the proceedings. 21. In the case of N.P. Thirugnanam v. R. Jagan Mohan Rao (Dr), (1995) 5 SCC 115 at page 116 the Hon’ble Supreme Court while dealing with the said issue observed:- 3. Rule 6 of Order 22 provides that: “6. No abatement by reason of death after hearing.— Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.” In the face of the explicit language in Rule 6 of Order 22, there can be no abatement by reason of the death of any party between the conclusion of the hearing and the pronouncement of the judgment. It may be pronounced, notwithstanding the death, and shall have the same force and effect as if the judgment had been pronounced before the death took place. Therefore, the contention that the judgment and decree of the appellate court is a nullity is devoid of substance. 22. The learned regard law has been settled by this court and is being uniformly followed since 1899. Therefore, the contention that the judgment and decree of the appellate court is a nullity is devoid of substance. 22. The learned regard law has been settled by this court and is being uniformly followed since 1899. In the case of Chetan Charan Das v. Balbhadra Das, 1899 SCC OnLine All 66, ILR (1899) 21 All 314 at page 910 [315]BLAIR and BURKITT, JJ.:— The first of the long list of the grounds of appeal in this case which was argued before us was the 11th. It is couched in the following words:—“Because the decree in the suit was illegally passed after the death of the plaintiff without any person being brought on the record as his representative.” The facts are, that the trial was concluded, arguments were heard, and the judgment was reserved on the 5th of September 1896. The plaintiff died on the 9th of September 1896. He was then absent in Orissa, and his death was unknown to any of the parties or to the Court. Judgment was delivered, and the decree was passed on the 15th of September 1896. It was argued on behalf of the appellants that the suit abated from the moment of the death of the plaintiff, and that the Court was incompetent to pass a decree, no representative of the deceased having been out on the record. This is a matter which has long been disposed of in England by the application of a large general principle of law actus curia nemini facit injuriam. That principle was applied in the leading case of Cumber v. Wane [Smith L.C. 10th Ed. 325.] . A defendant in error died after the time when the Court took time to consider. It was prayed that the judgment might be entered nunc pro tunc; in other words, that the judgment should be dated as of the day when the Court reserved its decision, and to that prayer the Court acceded. Such has been the invariable practice in England; and that practice finds expression in the rules framed under the Judicature Act of 1875. It seems to us that the decision to which we have referred and the subsequent practice of the Courts are consistent with justice and good sense. Nothing was left to be done by the parties from the moment the judgment was reserved. It seems to us that the decision to which we have referred and the subsequent practice of the Courts are consistent with justice and good sense. Nothing was left to be done by the parties from the moment the judgment was reserved. Any delay which took place was the delay of the Court, and we are not surprised to find that the English practice has been followed by the Courts in this country, notably in the case of Ramacharya v. Anantacharya [21 B. 314.] . No case to the contrary has been cited before us. A similar view has been taken by the [316] Privy Council in the case of Surendro Keshub Roy v. Doorgasoondery Dossee [19 C. 513.]. We think that decision amounts to an authority which this Court is bound to follow. We follow it accordingly. Our ruling in this case must be taken to be strictly limited to its facts, namely, that everything to be done by the parties had been done, and nothing remained except the delivery of judgment, which had been reserved by the Court. We, therefore, overrule this ground of appeal. Appeal dismissed.” 23. Applying the dictum of the aforesaid Judgment to the facts of the instant case, it is noticed that the interest of Jawahar Lal Bhargava who was the tenant was duly represented at all times before the prescribed authority by the petitioner. Even from the undisputed facts, the case was listed on 03.04.2002 on which date the petitioner duly appeared and signed the order-sheet before the prescribed authority. The case was adjourned for filing of the written arguments on behalf of the tenant which was filed on 04.08.2002 and accordingly the hearing stood completed on the filing of the written submissions and the judgment was delivered on 03.10.2002. The death of the respondent on 06/08/2002 would not have the effect of abatement of the proceedings in as much as the written submissions have been filed, and the judgement was delivered on the basis of the written submissions. 24. From the aforesaid, it is clear that provision of Order 22 Rule 6 applied with full force to the facts of the present case and accordingly the proceedings did not abate on the death of Jawaharlal Bhargava-the original tenant. The judgment of the Supreme Court in the case of Gurman Singh (dead) through legal representations and others Vs. 24. From the aforesaid, it is clear that provision of Order 22 Rule 6 applied with full force to the facts of the present case and accordingly the proceedings did not abate on the death of Jawaharlal Bhargava-the original tenant. The judgment of the Supreme Court in the case of Gurman Singh (dead) through legal representations and others Vs. Gur Bachan Karu (Dead) does not deal with the facts akin to the facts of the present case and therefore is distinguishable. 25. It was also contented on behalf of the petitioner that the proceedings before the prescribed authority were without jurisdiction inasmuch as the tenancy was created prior to coming into force the provisions of Public Premises and Eviction Act, 1971. In support of his contention is he relied upon the judgment of the Supreme Court in the case of Suhas H. Pophale vs Oriental insurance Co Ltd and its estate officer (2014) 4 SCC 657 . A perusal of the impugned judgement discloses that the said issue was never raised either before the prescribed authority or either in the appeal before the District Judge. The question as to when the tenancy was created or when the petitioner or his predecessor in interest became a tenant, is not merely a question of law but a mixed question of fact and law. The petitioner having not raised this question before either the Prescribed authority or the appellate Court is precluded for raising the same for the first time in the present writ proceedings. It is further noticed that the appeal preferred by the petitioner has also been dismissed on the ground that he did not have any right to file the appeal against the order of the prescribed authority before the District Judge. No leave to appeal was sought nor granted by the District Judge. No ground has been taken in the present writ petition to assailed the said findings, nor any arguments has been advanced in this regard by the counsel for the petitioner, and accordingly no interference is required with the said findings. 26. From the perusal of the sale letter it is clear that no tenancy rights were transferred to the petitioner and merely the business in the name and style of M/S A. James and Company was transferred along with the goodwill stock in trade, furniture etc. 26. From the perusal of the sale letter it is clear that no tenancy rights were transferred to the petitioner and merely the business in the name and style of M/S A. James and Company was transferred along with the goodwill stock in trade, furniture etc. There is a clear stipulation in the said sale letter that the petitioner would be free to obtain lease from the owners. It is not disputed that petitioner never informed or took consent from the respondent-bank prior to entering into the tenanted premises and merely by unauthorisedly occupying the tenanted premises did not ipso facto become the tenant and certainly not the legal representatives of the original tenant and accordingly did not have any locus standi to challenge the order of the prescribed authority in appeal before the District Judge. No arguments were advanced by the Counsel the petitioner in this regard, and therefore the findings by the appellate court do not merit any interference. 27. In light of the above, this Court does not find any ground to interfere with the concurrent findings of fact recorded by both the courts below. The writ petition is devoid of merits and is accordingly dismissed.