Man Mohan Nath and another vs Smt. Kesra Devi and others

I.S. Tiwana, J.—Ram Lal deceased husband of the present Plaintiff, Smt. Kesra Devi (now Respondent No. 1 brought a suit for possession of two shops (fully described In the plaint) on March 6, 1973, against the Defendants (including the present Appellants) with the following allegations:

That Sh Bodh Raj S/o Bashamber Dass rented the shops in suit from the Plaintiff at a monthly rent of Rs. 50/(Rs. fifty) vide rent deed dated 7 2.64, executed by him In favour of Shri Ram lal plff(sic) for eleven months that is upto 6.1 65. The rent deed is attached herewith

That Sh Bodh Raj tenant died on 12 11 71 and he was a statutory tenant at the time of his death as the rent deed dated 7.2 64. executed by him was for eleven month only after which he has became a statutory tenant.

That Sh Bodh Raj had sub let the shops is question to Defendants 1 and 2 who are now in un-lawful possession of the premises in suit. In so case have they any right to continue In possession of said properly after the death of Sh Bodh Raj. Even during his life time the possession was not lawful, being sub tenant without the written permission of the plff

That the defdts 2 to 5 are the legal repesentatives of deceased Sh Bodh Raj tenant, so they have been impleaded as defts, being necessary parties. They should have handed over possession after the death of their father. The Plaintiff also claimed damage for the use and occupation of the shops in question after the death of Bodh Raj at the rate of Rs. 50/-P. M.

Out of the Defendants, only the present Appellants that is, Manmohan Nath and Pran Nath sons of Bal Mukand. cotested the claim of the plantiff inter alia(sic) on the ground that they are not the sub-lessees from Bodh Raj and are rather the teanants of the Plaintiff and have been paying rent to Plaintiff even after the death of Booh Raj

The trial Court put the parties on trial on the following issues:

Whether suit is bad for misjoinder and non-joinder of parties ?

Whether Plaintiff is owner of property in suit ?

Whether Defendants No, 1 and 2 have been paying rent of property in dispute, if so, its effect ?

Whether suit is properly valued for the purposes of Court-fee and jurisdiction ?

Whether Plaintiff is estopped from filling this suit as alleged?

Whether Plaintiff has waived his right to file this suit ?

What is the effect of non-supply of copy of plan filed ?

8 Relief

Ultimately the suit of the Plaintiff was decreed by granting the relief of possesion against all the Defendants and for Rs 750/- by way of damages and compensation for use and occupation against Defendants Nos. 1 and 2, that is, the applicants

The solitary contention of Mr. H. L. Sarin, learned Senior Advocate for the Appellants is that keeping in view the case set up by the Plaintiff in the plaint as indicated above, the Civil Court bad no jurisdiction to try the suit(sic). According to the learned Counsel relationship of landlord and tenant was subsisting between the Plaintiff and the Defendants and in this view of the matter only the Pent Controller under the East Punjab Urban Rent Restriction Act, 1949, could, if at all, give the relief of possession to the Plaintiff and the jurisdiction of the Civil Court was completely barred. Though no specific issue had been framed in the case with regard to the jurisdiction of the civil Court to try this suit, yet the arguments raised being purely legal, I havr allowed the learned Counsel to argue this aspect of the case.

4 While advancing the argument, the learned Counsel submits (hat it is the admitted case of the Plaintiff that the shops in question were rented to Shri Bodh Raj on February, 7, 1964, for a period of eleven months, that is, up to January 6, 1965 and thereafter Shri Bodh Raj acquired the status of a statutory tenant and bad sublet the shops to the present Appellants the tenancy of Bodh Rajer the present Appellants had never come to an end the Civil Court had no jurisdiction to grant the relief of possession to the Plaintiff For this proposition, the learned Counsel relies on a Full Beneh judgment of this Court in Sowan Ram v. Gobinda Ram end another, 1980(1)R. C. 21 (Civil Revision No. 1324 of 197S) decided on October 15, 1979, (Since reported in 1980 (1) R C.R. 21.) In that case the question referred to the Full Bench was whether the jurisdiction of the Civil Court is impliedly barred from the field covered specifically and squarely by the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 ? The Full Bench, after adverting to the provisions of the said Act and the provisions of the East Punjab Urban Rent Restriction Act, answered the above question in affirmative and hold that the Civil Court had no jurisdiction to grant the relief of possession or eviction of the tenant where the relationship of landlord and tenant existed between the parties.

To counter this argument, Mr. Harhhagwan Singh, learned Counsel for the Plaintiff Respondent submits that after the lapse of the contractual period of tenancy, that is, with effect from January 7, 1965, Bodh Raj deceased was no more a tenant of the Plaintiff and was only a statutory tenant and his sub tenants, that is, the present Appellant''s could also not be treated as tenants under the Plaintiff In brief the submission is that a statutory tenant has no interest in the premises occupied by him and has no estate to assign or transfer and is only a person who is permitted to remain is occupation of the premises so long as he observes and performs the conditions of the tenancy and pays the rent. His personal right of occupation is incapable of being transferred and, therefore, he cannot confer any better rights on a subtenant. This submission of the learned Counsel, to my mind, is totally contrary to the latest pronouncement of their lordships of the Supreme Court in Damadilal and Others Vs. Parashram and Others, wherein there Lordships, after referring to the history and the origin of the term " Statutory tenancy " has observed as under:

We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute. The concept of a statutory tenant having no estate or property in the premises which he occupies is derived from the provisions of the English Rent Act But it is not clear how it can be assumed that the provision is the same in this country without any reference to the provisions of the relevent statute Tenancy has its origin in contract There is no dispute that a contractual tenant has an estate or property in the subject-matter of the tenancy and heritability is an incident of the tenancy. It cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in bis occupation, it is not possible to claim that the '' sanctity'' of contract cannot be touched by legislation.

If the definition of word '' tenant '' as provided in clause i) of Section 2 of the East Punjab Urban Rent Restriction Act, 1949 is examined in the light of the above pronouncement, it becomes abundantly clear that the said definition includes a tenant or a person continuing in possession even after the termination of the tenancy in his favour. For facility of reference, the said definition is reproduced hereunder:

"tenant" meant any person by whom or on whose account rent is payable for a building or rentend land and includes a tenant continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord, or a person to whom the collection of rent or fees in a public market, can(sic) stand or slaughter(sic) house or of rents for shops has been farmed out or leased by a municipal, town or(sic) notified area committee ; and

After examining a somewhat similar definition contained in Clause (i) of Section 2 of the Madhya Pardesh Accommodation Control Act, l96l, their Lordships further observed in the above noted case as follows:

The definition makes a person continuing in possession after the determination of his tenancy as tenant unless a decree or order for eviction has been made again to him, thus putting him on par with a person whose cantractual tenancy still subsists The Incidents of such tenancy and a contractual tenancy must therefore be the same unless any provision of the Act conveyed a contrary intention.

In view of the above definition of the word ''tenant'' as contained in the East Punjab Urban Rent Restriction Act while examined in the light of the pronouncement of the Supreme Court, it cannot possibly be held that Bodh Raj or his legal representatives or his sub-tenants had ever ceased to be tenants under the Plaintiff If that is so-as it is-then in view of the pronouncement of the Full Bench of this Court referred to above, the civil Court obviously had no jurisdiction to try this suit. The reference made by the learned Counsel for the Plaintiff-Respondent to Hans Raj Salig Ram v. L Niranjen Lal, (1952) 54 P.L.R. 31 and Gyan Chand v. Messrs Lahore Chemicals, (1952) 54 P.L.R. 6 SN holding that a sub-tenant is not a tenant qua the person who has sublet the premises to him, has no relevance to the question in issue. It is not even pleaded by the Plaintiff anywhere that the tenancy in favour of Bodh Raj or his legal representatives had ceased or come to an end at any stage. In fact the Plaintiff claimed the relief of possession even against Defendants Nos. 3 to 7, that is, the legal representatives of Bodh Raj.

Since the Appellants were in possession of the premises in question as tenants or sub-tenants under the Plaintiff, there is no qestion of grant of any damages against them for use and occupation of the said premises. At the most a suit tor the arrears of rent could only be filed against them, but that is not the case here.

In view of the discussion above, this appeal has to be allowed and I set aside the judgment and decree under appeal and hold that the trial Court had no jurisdiction to try the suit as put forward by the Plaintiff. However, no order as to costs is passed. In terms of Order 7, Rule 10, CPC the plaint be returned to the Plaintiff.