Sanjay Kishan Kaul, J.
1. The respondent filed an eviction petition under Section 22(d) of the Rent Control Act,1958 (hereinafter referred to as the 'said Act') against the father of the petitioner who was the tenant in the suit property. The petition was at the stage of petitioner's evidence when late Sh. P.S. Khambate passed away on 26.03.2003 and thus an application was filed by the respondent seeking impleadment of the present petitioner as a legal representative which was allowed on 16.09.2005. The application filed by the respondent was under the provisions of Order 22 Rule 4 of the Code of Civil Procedure r/w Section 2(l)(iii) of the said Act. The said provisions reads as under:
(l) 'tenant' means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable, and includes -
i)a sub-tenant;
ii)any person continuing in possession after the termination of his tenancy; and
iii)in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and conditions specified, respectively, in Explanationn I and Explanationn II to this clause, such of the aforesaid person's
a) spouse
b) son or daughter, or, where there are both son and daughter, both or them,
c)parents,
d) daughter in law, being the widow of his pre-deceased son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include, -
A) any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be re-opened under the proviso to Section 3 of the Delhi rent Control(Amendment) Act, 1976 (18 of 1976)
B) any person to whom a license, as defined by section 52 of the Indian Easements Act, 1882 (5 of 1982) has been granted.
Explanation I The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows.
a) firstly, his surviving spouse;
b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family up to the date of his death.
c) thirdly, his parents, if there is no surviving spouse,son or daughter of the deceased person, or if such surviving spouse, son or daughter or any of them, did not ordinarily live in the premises as a member of the family of the of the deceased person up to the date of his death; and
d) fourthly, his daughter in law, being the widow of his pre-deceased son, if there is no surviving spouse, son, daughter or parents, or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death.
Explanation II If a person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished.
Explanation III For the removal of doubts, it is hereby declared that-
a) where, by reason of Explanationn II, the right of any successor to continue in possession after the termination of the tenancy becomes extinguished, such extinguishment shall not affect the right of any other successor of the same category to continue in possession after the termination of the tenancy; but if there is no other successor of the same category, the right to continue in possession after the termination of the tenancy shall not, on such extinguishment, pass on to any other successor, specified in any lower category or categories, as the case may be;
b) the right of every successor, referred to in Explanationn I to continue in possession after the termination of the tenancy, shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs;
m) urban area has the same meaning as in the Delhi Municipal Corporation Act, 1957
2. The Additional Rent Controller while allowing the application for impleadment on 16.09.2005 also passed an eviction order on the same date against the petitioner-herein on account of the fact that the petitioner was not a person financially dependent on his late father at the at the time of his death. The said premises were let out for residential purposes and the tenancy of late Sh. P.S. Khambate had been terminated vide the notice dated 21.09.1999. Thus the petitioner had acquired the right to continue in possession for limited period of only one year. The defenses thus available to late Sh. P.S. Khambate were held as not available to the petitioner herein.
3. The submission of the learned Counsel for the petitioner is that the Additional Rent Controller failed to appreciate that the period of one year from the date of demise of the tenant had already expired and thus the petitioner had ceased to be a tenant after the said time. Thus there was no relationship of landlord and tenant and thus no order of eviction could have been passed against the petitioner. It may be noticed that the petitioner had also taken the additional plea that the contractual tenancy of late Sh. P.M. Khambate had not been terminated and thus the petitioner had become a lawful tenant by inheritance. Learned counsel further contends that since purpose of letting was not mentioned, the letting could be both for residential and commercial purposes.
4. Learned counsel referred to the judgment of the learned single Judge of this Court (as he then was) in P.N. Chopra and Anr v. Smt. Sharda Devi and Ors. : 60(1995)DLT857 to contend that where there was no relationship of landlord and tenant the Controller had no jurisdiction to entertain the eviction petition. However a perusal of the facts of the said case would show that on the date of institution of the eviction petition the relationship of landlord had ceased to exist in the said case. This is as distinguished from the facts of the present case where admittedly father of the petitioner was the tenant and the eviction petition had already been filed against the father of the petitioner.
5. Learned counsel for the petitioner also referred to the judgment of the Apex Court in Mrs Krishna Prakash and Ors. v. Mrs Shanta Sinha Chenoy and Anr. (1980) II Delhi 854 wherein it was held that if a heir was not financially dependent on the tenant on the death of the tenant then such successor would acquire the right to continue in possession of the premises only for a period of one year and on the expiry of that period this right to continue possession would come to an end. It was held that the depending on the stand of the landlord the proceedings would have to be filed and where the landlord's case is that he is seeking to evict a person who is not a tenant at all, the proceedings for eviction will have to be suit based on title and filed in a civil court. A civil suit was held to be competent against the legal representatives of the deceased-tenant if the landlady proves her allegation that the legal representatives concerned did not inherit the tenancy-cum- statutory protection of the tenant and was not entitled to remain in possession of the demised premises for more than one year after the death of the tenant.
6. Learned counsel has also referred to the judgment of the Apex Court in Rajendra Tiwary v. Basudeo Prasad and Anr. : AIR2002SC136 to contend that the jurisdiction of the Rent Controller was limited to try suits specified in the Rent Statute and thus the Controller cannot pass a decree for eviction on any ground other than the one specified in the Statue concerned.
7. A perusal of the impugned order shows that late Sh. P.S. Khambate contested the eviction petition. The parties were allowed to lead evidence and his counsel cross-examined the witnesses of the respondent. However, before the evidence of the tenant could commence, Sh. P.S. Khambate passed away and he was widower at the time of his death.
8. The Additional Rent Controller took note of the fact that the notice of termination of tenancy dated 21.08.1999 had in fact been acknowledged by the tenant and even replied to by his counsel. The premises were being used for residential purposes. It was held that since the petitioner was a son of the tenant and the eviction petition was already pending, the right to sue would survive against the petitioner who was entitled to the benefit of the tenancy for a period of one year.
9. An important factor taken note of by the Additional Rent Controller, and in my considered view rightly so, was that late Sh. P.S. Khambate in his written statement had stated that no purpose was specified at the time of letting and thus he was at liberty to use the premises either for residence or for business or for both. However, he admitted that the premises were being used only for residence for himself and his family members. The case was never made out that the suit premises were ever used for non residential purposes. In the reply to the notice of termination of tenancy sent through counsel late Sh. P.S. Khambate had not even taken this plea that the purpose of letting was not specified. The petitioner admitted that there was no financial dependency on his later father who claimed the right to continue as a tenant which was contrary to the provisions of Section 2(l) of the said Act.
10. The appeal filed by the petitioner has also been dismissed by a detailed judgment of the Rent Control Tribunal dated 12.05.2006 which is in challenge in the present proceedings. The petitioner took technical pleas such as that no amended memo of parties had been field, the tenancy was contractual at the time of the death of his late father and the petitioner was not given an opportunity to establish the purpose of letting. In fact similar pleas are sought to be raised by learned Counsel for the petitioner today in court.
11. In my considered view the approach both of the Additional Rent Controller and the Rent Control Tribunal cannot be faulted. The notice dated 21.08.1999 terminating the tenancy cannot be disputed since the same was even replied to and both the notice and the reply were already exhibited as ExPW1/12 and ExPW1/13 respectively in the evidence led by the respondent. The termination was in accordance with law as per the notice. The witnesses who appeared on behalf of the respondent and had already been cross examined had deposed in favor of the respondent. There was no cross examination of the witnesses to establish that the premises were ever used for commercial activities. The premises were in fact used for residential purposes for more than forty years and and thus the vague plea in the written statement that no purpose for letting was specified has rightly been disbelieved. The Tribunal has taken note of the admission of the petitioner that he was not dependent on his late father. It is in view thereof that the Tribunal considered the plea of the petitioner that the eviction had abated with the death of his late father in case he was not a statutory tenant and thus a civil suit was the only remedy for the respondent.
12. The important distinction in the present case is that the eviction petition is not filed after the demise of the statutory tenant. The statutory tenant passed away during the pendency of the petition. The legal representative only represented the estate of the deceased-tenant. Thus the Tribunal rightly held that it was not necessary for the landlord to file a regular suit to recover possession after the litigation had dragged on in the court of the Rent controller for a long period of time. If the legal representative of a deceased-tenant has no legal authority to continue in occupation of the suit property, the landlord can seek possession from such legal representative. The definition of a tenant in Section 2(l) of the said Act includes an heir in possession as per the hierarchy.
13. The Tribunal has considered a catena of judgments including Gian Chand v. Jeevan Kumar 1980 RLR 28, J.C. Chatterjee v. Sri Krishan Tandon : [1973]1SCR850 , Bal Kishan v. Om Prakash : [1986]3SCR622 to uphold the plea that if the tenant dies during the pendency of eviction proceedings and the legal representative is brought on record, such proceedings against the legal representative are maintainable as he was holding the property in the capacity of a heir to the estate and not really as a trespasser. A decree for eviction would thus not be resisted on the technical plea that that the landlord must be compelled to terminate the proceedings and file a fresh suit for possession. The petitioner could not have enlarged on the defenses taken by his late father.
14. In view of the aforesaid facts and circumstances, I find no infirmity with the impugned orders which are in accordance with law.
15. Dismissed.
CM No. 7981/2006
Dismissed.