BAL KISHAN versus OM PRAKASH & ANR.

Citation: [1986] 3 S.C.R. 622 · Decided: 26-08-1986 · Supreme Court of India · Bench: E.S. VENKATARAMIAH · Disposal: Dismissed

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Judgment (excerpt)

A 
B 
c 
D 
BAL KISHAN 
v. 
OM PRAKASH & ANR. 
AUGUST 26, 1986 
[E.S. VENKATARAMIAH AND V. KHALID, JJ. ] 
Haryana Urban (Control of Rent and Eviction) Act, 1973, Ss. 2(h) 
and 13(2) (ii) (a)-Eviction on the ground of sub-letting whether legal 
heir of tenant can be treated as a tenant. 
Code of Civil Procedure, 1908, O.XXII Rule 4--Legal representa-
tive of the deceased respondent-Lenant-Whether can be treated as a 
tenant and not a trespaper. 
The appellant was brought on record, as the legal representative 
of the deceased-tenant during the pendency of an eviction petition. He 
filed an additional written statement contending that the premises in 
question being non-residential and commercial premises, the legal heir 
of a tenant could not be treated as a tenant as defined under s. 2(h) of 
E 
the Haryana Urban (Control of Rent & Eviction) Act and therefore, the 
possession of such legal heir ·of ·a tenant would be that of a trespasser 
and, the Rent Controller had no jurisdiction to proceed with the case as 
he was not competent to pass a decree for possession against a trespas-
ser. Overruling the said coute11tion, the Rent Controller allowed the 
petition for eviction on the ground that the tenant bad sublet the pre-
F 
mises in favour of respondent No. 2 without the written consent of the 
~
landlord. The appellant's appeal and the revision before the Appellate 
Authority and the High Court respectively failed. 
bismissing the appeal by the appellant, 
G 
HELD: 1. The plea of the appellant that be was holding the prop-
erty as a trespasser is not tenable because the possession of the tenant 
being permissive, the possession of the appellant who bad succeeded to 
the estate of the tenant as bis heir could not be that of a trespasser in the 
circumstances of the case. He could not, therefore, resist the passing of 
the decree for eviction on proof of the ground in s. 13(ii) (a) of the Act. 
H 
(525G-H; 526A] 
622 
BAL KISHAN v. OM PRAKASH [VENKATARAMIAH. J.] 
623 
2. Order XXll Rule 4 of the Code of Civil Procedure 1908 pro-
~· vides that where one of two or more defendants dies and the right to sue 
does not survive against the surviving defendant or defendants alone, or 
a sole defendant or sole surviving defendant dies and the right to sue 
survives, the court, on an application made in that behalf, shall cause 
the legal representative of the deceased defendant to be made a party 
and shall proceed with the suit. Suh-rule (2) of rule 4 of Order XXII 
authorises the legal representative of a deceased defendant or respon-
). dent to file an additional written statement or statement of objections 
raising all pleas which the deceased tenant had or could have raised 
• 
except those which were personal to ~he deceased defendant or res-
pondent. [6250-G) 
In the instant case, since the action related to property, the right 
to sue did survive and the Rent Controller was right in bringing the 
. . legal representative, of the deceased-tenant, on record. The appellant 
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could not have therefore, in the capacity of the legal representative of 
the deceased-respondent who was admittedly a tenant, raised the plea 
that he was in possession of the building· as a trespasser and the petition 
for eviction was not maintainable. [625G-H) 
3. It is possible for the court in an appropriate case to implead the 
heirs of the deceased defendant in their personal capacity also in addi-
r' lion to bringing them on record as legal representatives of the deceased 
defendant avoiding thereby a separate suit for a decision on the inde-
pendent title. But, in the instant case, the appellant cannot claim the 
aforesaid benefit for'·two reasons.' First the appellant had not been 
brought on record as respondent in the eviction petition in his personal 
~capacity but had been brought on record only as the legal representa-
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live of the tenant. Secondly, even if a prayer had been made to bring the 
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appellant on record in his personal capacity, the Rent Controller could 
. .j not .have allowed the application and permitted him to raise the plea of 
independent title because such a plea would oust the jurisdiction of the 
Rent Controller to try the case itself. [626E-F] 
Jagdish Chander Chatterjee & Ors. v. Sh Kishan & Anr., [1973) 
I SCR 850, referred to. 
' 
i 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1960 
..._ 
of 1980 
From the Judgment and Order dated 23.7.1980 of the Punjab & 
Haryana High Court in C.R. No. 904 of 1980 
A

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