Hukam Chand v. Om Chand, (SC) BS188158
SUPREME COURT OF INDIA

Before:- R.C. Lahoti and Brijesh Kumar JJ.

C.A. No. 1496 of 1999. D/d. 22.11.2001.

Hukam Chand - Appellant

Versus

Om Chand and Ors. - Respondents

For the Appellants :- Mr. A.B. Rohatgi, Mr. Harinder Mohan Singh, Mr. Anil Hooda, Advocates.

For the Respondent :- Mr. Mahabir Singh, Advocate.

A. East Punjab Rent Restriction Act, 1949 - Civil Procedure Code, 1908, Order 22 Rule 10 - Transfer of Property Act, 1882, Section 52 - Transfer of interest of landlord pendente lite - Pursuant to passing of a decree against appellant/tenant and during the pendency of his appeal before Supreme Court, appellant filed affidavit informing the Supreme Court that the disputed tenanted land has been sold by the respondent/landlord - Contention of the appellant tenant that in such circumstances decree passed against him by trial court and maintained by High Court cannot be sustained and should be set aside- Such contention repelled - Appellant did not take any further action by moving an application under Order 27 Rule 10 - In absence of such application and relevant transfer deeds the terms and conditions of the transfer effected by landlord/respondent cannot be determined - Moreover, transfer is lis pendense which does not stop the progress of the litigation and the transferee merely steps into the shoes of his predecessor-in-interest whether he is impleaded as a party ornot- Such transferee becomes bound by the result of the eviction suit including any relevant directions, terms and conditions set out in the decree - Such transferee may seek leave of the Court to come on record- Tenant wishing to prosecute the appeal against the transferee must also seek leave from the court- Hence, there was no reason to set aside the decree against appellant/tenant.

[Para 9]

B. Civil Procedure Code, 1908, Order 22 Rule 10 - Rule 10 is an enabling one and permissive in nature.

[Para 9]

C. Evidence Act, 1872, Section 115 - Estoppel- Respondent/landlord had earlier approached the Rent Controller for eviction of tenant on the basis of non-payment of rent by the tenant- Appellant/tenant had paid rent but neither the question of jurisdiction of Rent Controller was raised not there was a contest on the nature of the suit property or the tenancy i.e., whether it relatedto'rented land'- Held, - Merely because earlier the landlord had chosen to file an application before Rent Controller in respect of this very property, the landlord is neither estopped not excluded from filing a subsequent suit before the Civil Court.

[Para 8]

Cases Referred :-

Bai Chanchal v. Syed Jalaluddin, 1970 Vol.II R.C.R. 915.

Mahanth Sukhdeo Das v. Kashi Prasad Tiwari, AIR 1958 Patna 630.

Mst. Rukhmabai v. Laxminarayan, AIR 1960 Supreme Court 335.

JUDGMENT

R.C. Lahoti & Brijesh Kumar, JJ. - The land sin suit is owned by one Abdul Hamid Khan. In the year 1957, Om Chand - the respondent No. 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 No. 3) (hereinafter collectively called as 'tenants') on the one hand and respondent No. 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 1st March, 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 upto the road level at their own expense. The purpose of letting, as set out in the lease deed, was -

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 1/3/67, the landlord- respondent 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) :-

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 No.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 March 1st, 1967 and September 30, 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 counsel for the appellant, centres around it. On 2nd November, 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 Chand's 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, 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; and Thirdly, 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 the 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 above said 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 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 Bombay Rent Restriction Act (No. XVI of 1939), came for the consideration of this Court in Bai Chanchal & Ors. v. Syed Jalaluddin & Ors. 1970 Vol.II R.C.R. 915. 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 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 landlord-respondent himself had initiated proceedings against the tenant-appellant before the Rent Controller under Section 13 of the Act on 2/6/58. 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 a 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 tenant appellant has not taken any steps for bringing the transferee or assignee of the landlord-respondent on record in this appeal in spite of his having acquired knowledge as early as in November 1958, of the respondent having transferred his title in the suit property through sale deeds. The sale deeds are registered deeds. The tenant-appellant could have obtained copies thereof and place on record the terms and conditions of the transfer, which has not been done. In the absence of any application under Order 22 Rule 10 of the C.P.C. having been filed by the tenant-appellant 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 landlord-respondent. The situation is covered, and is taken care of, by Section 52 of the Transfer of Property Act and Order 22 Rule 10 of the C.P.C. The transfer is lispendense. In case of any assignment or creation of and interest during the pendency of a suit, under Order 22 Rule 10 of the C.P.C., 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 Patna High Court has held in Mahanth Sukhdeo Das & Anr. v. Kashi Prasad Tiwari & Ors. AIR 1958 Patna 630, that inspite 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 of 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's case (supra) that such assignment or devolution of right during the pendency of the litigation did not arrest the progress of the litigation. The only exception is when the transfer of property forming subject matter of suit, pendente lite, results in wiping out the cause of action itself or deprives the transferee with 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 be 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 material/debris 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 tenant-appellant liberty of making such settlement. That liberty is still available to the tenant appellant 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 appropriate form, having not been raised before the trial court and pursued before the learned Single Judge and the Division Bench. In Mst. Rukhmabai v. Laxminarayan & Ors. AIR 1960 Supreme Court 335 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 any of the courts below, such a plea was not permitted to be raised for the first time before the Supreme Court in Mst. Rukhmabai's case (supra) Even otherwise, from the wordings 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. For the foregoing reasons, we find the appeal devoid of any merit and liable to be dismissed.

12. The appeal is dismissed accordingly.

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