PETITIONER:
PARASRAM HARNAND RAO
Vs.
RESPONDENT:
SHANTI PRASAD NARINDER KUMAR JAIN & ANR.
DATE OF JUDGMENT10/04/1980
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
KAILASAM, P.S.
CITATION:
1980 AIR 1655 1980 SCR (3) 444
1980 SCC (3) 565
CITATOR INFO :
RF 1986 SC1218 (15)
ACT:
Delhi Rent Control Act, Section 25 read with Order IX
Rule 9 C. P. C., scope of-Whether the dismissal of the
earlier suit of respondent-tenant for default of appearance
under Order IX Rule 9 C. P. C. a bar for an application
under section 25 of the Delhi Rent Control Act.
Transfer of tenancy rights by the Official Liquidator,
whether voluntary and did not come under the mischief of
section 14(1) (b) of the Delhi Rent Control Act.
HEADNOTE:
The appellant landlord executed a lease in respect of
the disputed premises in favour of respondent 2 for three
years as far back as 1-4-1942. In 1948, a suit was brought
by the appellant for eviction of the tenant for non payment
of rent on the ground of conversion of the user of the
premises. The suit for possession was however dismissed but
a decree dated 31-11-1948 for arrears of rent was passed and
it was held that Laxmi Bank was the real tenant.
Subsequently, the Bombay High Court ordered the Bank to be
wound up and in the winding up proceedings, the High Court
appointed an Official Liquidator who on 16-2-1961 sold the
tenancy rights to respondent No. 1. The sale was confirmed
by the High Court on the same date and as a result thereof
respondent No. 1 took possession the premises on 24-2-1961.
On 5-1-1961, the landlord appellant filed an application
under the Delhi Rent Control Act for eviction of Laxmi Bank.
On 31-7-1961, a decree for eviction was passed in favour of
the appellant. On 22-1-1963, respondent No. 1 filed a suit
for declaration that he was a tenant of the landlord
appellant. The suit was dismissed for non-prosecution on 5-
5-1964 and an application to set aside the ex parte order
was also dismissed and the appeal against that order also
failed. Thereafter respondent No. 1 filed an application
under Section 25 of the Delhi Rent Control Act for recalling
the warrant of possession issued by the Court in pursuance
of the decree dated 31-7-1961 in favour of the appellant.
The Rent Controller allowed it on 20-12-1966. An appeal to
the Rent Controller Tribunal was ordered by order dated 25-
11-1968 in favour of the appellant. A second appeal filed by
respondent No. 1 to the High Court was allowed in his favour
and the Rent Controller's order allowing recalling of the
warrant of possession was restored. Hence the appeal by
special leave by the landlord.
Allowing the appeal, the Court
^
HELD: 1. The application of respondent No. 1 under
Section 25 of the Delhi Rent Control Act is clearly barred
by the principle contained in order IX Rule 9 Civil
Procedure Code. It was the appellant who brought the
previous suit which resulted in a decree for eviction of the
tenant on 31-7-1961-a date when the Ist respondent had
already taken possession of the premises by virtue of
transfer made by the Official Liquidator. There is nothing
to show that respondent No. 1 was a tenant within the
meaning of Delhi Rent Control
445
Act so as to maintain an application under section 25 of the
Act, when in fact he was an unlawful sub-lessee. [447A, E,
F-G]
Suraj Ratan Thirani and Ors. v. Azamabad Tea Co. and
Ors. [1964] 6 S. C. R. 192; applied.
2. The language of section 14(b) of the Delhi Rent
Control Act is wide enough not only to include any sub-lease
but even an assignment or any other mode by which possession
of the tenanted premises is parted. In view of the wide
amplitude of s. 14 (b), it does not exclude even in
involuntary sale. [448D-E]
In the instant case, the official Liquidator had merely
stepped into the shoes of Laxmi Bank which was the original
tenant and even if the official liquidator had transferred
the tenancy interest to respondent No. 1 under the order of
the Court, it was on behalf of the original tenant. It was
undoubtedly a voluntary sale which clearly fell within the
mischief of s. 14 (1) (b) of the Delhi Rent Control Act.
Assuming that the sale by the Official Liquidator was an
involuntary sale, then it undoubtedly became an assignment
as provided for by s. 14 (b) of Delhi Rent Control Act.
[448A-C]
Krishna Das Nandy v. Bidhan Chandra Roy, A.I.R. 1959
Cal. 181 Overruled.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1085 of
1970.
Appeal by Special Leave from the Judgment and Order
dated 17. 3. 1969 of the Delhi High Court in SAD No. 2/69.
P. R. Mridul and O. P. Sharma for the Appellant.
S. K. Bisaria for the Respondent.
The Judgment of the Court was delivered by
FAZAL ALI,J. This appeal by special leave is directed
against a judgment of the Delhi Court and arises out of an
application filed by Respondent No. 1 who claimed to be the
tenant of the appellant, recalling the warrant of possession
issued by the Controller in pursuance of a decree dated 31-
7-1961 passed against the 1st respondent.
The case had a rather chequered career having passed
through several phases. To begin with the landlord-appellant
executed a lease in respect of the disputed premises in
favour of Respondent No. 2 for three years as far back as
1.4.1942. In 1948, a suit was brought by the appellant for
eviction of the tenant for non-payment of rent on the ground
of conversion of the user of the premises. The suit for
possession was however dismissed but a decree dated 31. 11.
1948 for arrears of rent was passed and it was held that
Laxmi Bank was the real tenant. Subsequently, the Bombay
High Court ordered the
446
Bank to be wound up and in the winding up proceedings, the
said High Court appointed an Official Liquidator who on 16.
2. 1961 sold the tenancy rights to Respondent No. 1-S. N.
Jain. This sale was confirmed by the High Court on the same
date and as a result there of respondent No. 1 took
possession of the premises on 24.2.1961. On 5. 4. 1961, the
land-lord-appellant filed an application under the Delhi
Rent Control Act for eviction of Laxmi Bank. On 31. 7. 1961,
a decree for eviction was passed in favour of the landlord-
appellant. On 23-1-1963. Respondent No. 1 filed a suit for a
declaration that he was a tenant of the landlord-appellant.
This suit was dismissed for non-prosecution on 5.5.1964 and
an application to set aside the ex parte decree was also
dismissed and the appeal against that order also failed.
Thereafter Respondent No. 1 filed an application under s. 25
of Delhi Rent Control Act (hereinafter referred to as the
Act) for recalling the warrant of possession issued by the
Court in pursuance of the decree dated 31.7.1961 in favour
of the landlord.
The present appeal arises out of these proceedings. The
Rent Controller allowed the application and recalled the
warrant of possession by its Order dated 20. 12. 1966. The
matter was then taken up by the landlord in appeal to the
Rent Control Tribunal which by its Order dated 25. 11. 1968
reversed the order of the Rent Controller and dismissed the
tenant’s application. A second appeal against the order of
Tribunal was then filed by the tenant to the High Court
which reversed the order of the Rent Control Tribunal and
restored the order of the Rent Controller, hence this appeal
by special leave.
Mr. Mridul appearing for the appellant challenged
before us the findings of the High Court on point nos. 1 & 3
which are formulated at page 91 of the judgment of the Delhi
High Court. These points may be extracted thus:-
“(1) The application made by the appellant before
the High Court under section 25 was not barred by
reason of the dismissal of the appellants suit for
default of appearance under Order IX Rule 9, C.P.C.
(3) The transfer to the appellant by the Official
Liquidator of the tenancy rights being voluntary did
not come within the mischief of section 14(1)(b) of the
Act.
In the first place it was argued that so far as point
No. 1 is concerned, the High Court was wrong in holding that
the application of Respondent No. 1 was not barred by the
reason of the dismissal of the appellant’s suit for setting
aside the ex-parte decree by the principle of Res Judicata
or Order IX Rule 9 C.P.C. It was contended that
447
even if the previous suit filed by respondent No. 1 for
declaration of his status as a tenant was dismissed for
default but as the application for setting aside the decree
also failed, there was an adjudication against the then
plaintiff-respondent No. 1 and therefore the present suit
was clearly barred by the principles of Res Judicata or
Order IX Rule 9. At any rate there can be no escape from the
position that the application of respondent No. 1 would be
clearly barred by the principle contained in Order IX Rule
9, C.P.C. In case of Suraj Ratan Thirani & Ors. v. The
Azamabad Tea Co. & Ors.(1) this Court held thus:
“We are not however impressed by the argument that
the ban imposed by O. IX, r. 9 creates merely a
personal bar or estoppel against the particular
plaintiff suing on the same cause of action and leaves
the matter at large for those claiming under him.
Beyond the absence in O. IX, r. 9 of the words
referring “to those claiming under the plaintiff” there
is nothing to warrant this argument. It has neither
principle, nor logic to commend it .. The rule would
obviously have no value and the bar imposed by it would
be rendered meaningless if the plaintiff whose suit was
dismissed for de fault had only to transfer the
property to another and the latter was able to agitate
rights which his vendor was precluded by law from
putting forward.”
In the instant case it was appellant who brought the
previous suit which resulted in a decree for eviction of the
tenant on 31-7-1961-a date when the 1st respondent had
already taken possession of the premises by virtue of
transfer made by the Official Liquidator. Thus the identity
of the subject matter being substantially the same, this
case clearly falls within the ambit of the ratio in the case
supra. On this ground alone therefore the appellant is
entitled to succeed because the High Court with due respect
does not appear to have properly construed the scope of
Order IX Rule 9 C.P.C. There is however nothing to show that
respondent No.1 was tenant within the meaning of Rent
Control Act so as to maintain an application under s. 25 of
the Act when in fact he was an unlawful sub-lessee. As
regards point No. 3, the High Court relying on a decision of
Calcutta High Court in Krishna Das Nandy vs. Bidhan Chandra
Roy(2) has found that as the transfer in favour of
respondent No. 1 by the Official Liquidator was confirmed by
the Court, the status of the tenant by respondent No. 1 was
acquired by operation of law and therefore the transfer
448
was an involuntary transfer and the provisions of Rent
Control Act would not be attracted. After careful perusal of
Calcutta case, in the first place it appears that the
section concerned has not been extracted and we are not in a
position to know what was the actual language of the section
of the Bengal Act. Secondly, in our opinion, the official
liquidator had merely stepped into the shoes of Laxmi Bank
which was the original tenant and even if the official
liquidator had transferred the tenancy interest to
respondent No. 1 under the orders of the Court, it was on
behalf of the original tenant. It was undoubtedly a
voluntary sale which clearly fell within the mischief of
s.14(1)(b) of the Delhi Rent Control Act. Assuming that the
sale by the official Liquidator was an involuntary sale,
then it undoubtedly became an assignment as provided for by
s. 14(b) of Delhi Rent Control Act. S. 14(b) runs thus:-
“14(b)-that the tenant has, on or after the 9th
day of June, 1952, sublet, assigned or otherwise parted
with the possession of the whole or any part of the
premises with out obtaining the consent in writing of
the landlord.”
The language of s. 14(b) is wide enough not only to
include any sub-lease but even an assignment or any other
mode by which possession of the tenanted premises is parted.
In view of the wide amplitude of s.14(b) we are clearly of
the opinion that it does not exclude even an involuntary
sale. Fore these reasons therefore we are unable to agree
with the view taken by the High Court. The appeal is
accordingly allowed, the judgment and decree of the High
Court are set aside and the plaintiff’s application under s.
25 of the Delhi Rent Control Act is dismissed.
Mr. Bisaria, learned counsel appearing for the
respondent submitted that as the tenant has been in the
premises for a period of 19 years and is conducting business
therein, he may be permitted sufficient time to make
alternative arrangements. Mr. Mridul appearing for the
appellant fairly conceded that he would have no objection if
one year’s time is allowed to the respondent provided he
gives an undertaking for handing over peaceful and vacant
possession at the expiry of the time. We therefore allow
time to the respondent to vacate the premises on or before
15th April, 1981 on the condition that he files an
undertaking within two weeks to the effect (1) that he shall
hand-over vacant and peaceful possession to the landlord on
or before 15th April, 1981; (2) that he shall not induct any
per son on the premises; (3) that he shall go on paying the
compensation for wrongful use of premises equivalent to the
rent.
449
The undertaking must be filed supported by an affidavit
within two weeks from today failing which the order granting
time shall stand revoked.
There will be no order as to costs.
S.R. Appeal allowed.
450