LAL CHAND (DEAD) BY L.RS. V. RADHA KRISHAN, AIR 1977 SC 789
FACTS
The respondent who owns a house, let out a portion thereof consisting of five rooms on the ground floor and two rooms on the second floor to one Lal Chand. He filed suit in the court of sub-judge, Delhi for evicting Lal Chand and four others: Kesho Ram, Jhangi Ram, Nand Lal and Smt. Kakibai, alleging that Lal Chand had sublet the premises to them.
He sought eviction on the following grounds:
(1) he required the premises for his own personal use and occupation,
(2) he wanted to provide certain essential amenities for himself necessitating re-construction, and
(3) that the tenant was in arrears of rent.
PROCEDURAL HISTORY
Sub Judge: decreed the suit on the first ground only.
Senior Sub Judge: confirmed the finding of the trial court.
Punjab High Court: upheld the judgement of the courts below on the ground that the landlord required the entire premises for his personal use and occupation.
Since the suit property is situated in a slum area, the respondent filed an application under Section 19(2) of the Slum Areas (Improvement and Clearance) Act, 1956, for permission of the competent authority to execute the decree for possession obtained by him against Lal Chand and others.
Competent authority: after taking into account the factors mentioned in Section 19(4) of that Act, passed an order permitting the respondent to execute the decree in respect of the two rooms situated on the second floor only. Respondent was expressly refused permission to execute the decree in regard to the premises situated on the ground floor.
Aggrieved by that order, the respondent filed an appeal to the Administrator under Section 20 of the Slum Clearance Act, 1956, who confirmed the order of the competent authority.
Having obtained possession of a part of the premises, the respondent embarked upon a fresh round of litigation giving rise to this appeal. He filed a regular civil suit against Lal Chand, Kesho Ram and Jhangi Ram for possession of the remaining rooms on the ground floor. That suit was decreed by the trial Court.
Aggrieved by the judgement of the trial Court, Lal Chand, Kesho Ram and Jhangi Ram filed Civil Appeal in the Court of the Additional Senior Sub-Judge, Delhi. During the pendency of that appeal Lal Chand died.
That application was contested by the respondent on the ground that by reason of the ejectment decree Lal Chand had ceased to be a tenant and upon his death during the pendency of the appeal, the right to sue did not survive to his heirs. This contention was upheld by the learned appellate Judge who dismissed the appeal as also the application filed by Lal Chand's widow and son for being brought on the record as his legal representatives.
These legal representatives and the two other defendants, Kesho Ram and Jhangi Ram, filed second appeal in the High Court of Delhi against the judgement of the learned Additional Senior Sub-Judge.
The learned Judge confirmed the judgement of the first appellate Court and dismissed the second appeal.
This appeal by special leave is filed by the legal representatives of Lal Chand as also by Kesho Ram and Jhangi Ram.
Lal Chand and others’ contentions:
(1) that they are tenants within the meaning of the Slum Clearance Act despite the passing of the ejectment decree against them,
(2) that the suit brought by the respondent was not maintainable in view of the provisions of the Slum Clearance Act and,
(3) that the respondent was estopped from bringing the suit since he had already obtained possession of the two rooms on the second floor in pursuance of the permission granted by the competent authority.
ISSUES
(1) Whether the present suit is barred for the reason that before instituting it, respondent has not obtained permission of the competent authority?
(2) Whether the word 'tenant' which occurs in clause (a) of Section 19(1) of the Slum Clearance Act bears the same meaning which it has under the Delhi Rent Control Act?
JUDGEMENT
Regarding the first issue,
The court observed that, it being common ground that such a permission was not obtained and that the building in question is situated in a slum area, the decision of this question turns on the consideration whether inspite of the fact that an ejectment decree was passed against Lal Chand in the earlier suit, he continued to be a 'tenant' for the purposes of the Slum Clearance Act, especially within the meaning of Section 19(1) (a) thereof. The trial Court held that Lal Chand ceased to be a tenant after the passing of the ejectment decree and therefore the jurisdiction of the Civil Court to entertain the suit for possession against him was not barred under any of the provisions of the Slum Clearance Act
Under the Delhi Rent Control Act, it is clear via S.2(1) of the Act that, a person against whom an order or a decree for eviction has been passed cannot, generally, be regarded as a tenant.
Regarding the Second issue,
The Court observed that, Section 19 of the Slum Clearance Act furnishes intrinsic evidence to show that the definition of the word 'tenant' as contained in the Delhi Rent Control Act cannot be extended for construing its provisions. The policy of the Slum Clearance Act being that the Slum dweller should not be evicted unless alternative accommodation is available to him, we are of the view that the word 'tenant' which occurs in Section 19(1) (a) must for the purpose of advancing the remedy provided by the statute be construed to include a person against whom a decree or order for eviction has been passed. We might mention that a Full Bench of the Delhi High Court in Bardu Ram Dhanna Ram v. Ram Chander Khibru has taken the same view, namely, that the word 'tenant' in Section 19 of the Slum Clearance Act includes a person against whom a decree or order of eviction has been passed.
Therefore, in order to answer the first issue, it was held Since the respondent had not obtained permission of the competent authority for instituting the present suit for obtaining a decree for eviction of Lal Chand from a building situated in the slum area and since Lal Chand must be held to be a tenant for the purpose of Section 19(1) (a) it must follow that the suit is incompetent and cannot be entertained.
It was further observed that the suit is also barred under Section 37A of the Slum Clearance Act as the combined operation of Section 19(3) and Section 37A of the Slum Clearance Act, that jurisdiction is exclusively vested in the competent authority and the jurisdiction in that behalf of civil courts is expressly taken away.
Furthermore, the court went on observing that permission was granted to him to execute the decree in respect only of the two rooms on the second floor and in pursuance of that permission he obtained possession of those two rooms, therefore, it was not competent to the respondent to bring a fresh suit for evicting the appellants from the premises on the ground floor. In the circumstances, the present suit is also barred by the principle of res judicata.
Therefore, the court held that, The suit filed by the respondent being incompetent and the Civil Court not having jurisdiction to entertain it, the decree passed by it is non-est. The nullity of that decree can be set up at least by Kesho Ram and Jhangi Ram who are entitled to defend and protect their possession by invoking the provisions of the Slum Clearance Act.
The Appeal was allowed, and judgement of the High Court was set aside and the respondent's suit for possession was dismissed.