Case: Lal Chand (Dead) By L.Rs. &amp; Ors Vs. Radha Kishan

The respondent Radha Krishan who owns house No. 142, Katra Mashru, Delhi 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 No. 42 of 1958 in the Court of the 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. The eviction of these persons was sought by the respondent on the grounds that (1) he required the premises for his own use and occupation; (2) he wanted to provide certain essential amenities for himself necessitating reconstruction; and (3) that the tenant was in arrears of rent. By his judgment dated June 6, 1959 the learned Sub-Judge, First Class, Delhi decreed the suit on the first ground only and rejected the other two contentions. In an appeal filed by the defendants, the learned Senior SubJudge, Delhi confirmed the finding of the Trial Court that the accommodation at the disposal of the respondent was insufficient, but he thought that the needs of the respondent would be met adequately if he were given possession of the two rooms on the second floor only. Feeling however that there was no provision inthe Delhi and Ajmer Rent Control Act, 1952, under which the suit was filed, for giving possession of a part of .the demised premises to the landlord, the learned Judge confirmed the decree of the Trial Court. The Circuit Bench of the Punjab High Court at Delhi upheld that judgment on February 6, 1962 in Civil Revision No. 609-D of 1960 on the ground that the landlord required the entire premises for his personal use andthe suit property is situated in a slum area, the respondent fled an application under s. 19(2) of the Slum Areas (Improvement and Clearance) Act, 96 of 1956, for permission of the competent authority to execute the decree for possession obtained by him against Lal Chand and others. The competent authority after taking into account the factors mentioned in s. 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 s. 20 of the Slum Clearance Act, 1956. The appeal was heard by the Chief Commissioner of Delhi who confirmed the order of the competent authority. Pursuant to his order, the defendants handed over possession of the two rooms on the second floor to thehowever, was not the end of the matter. Having obtained possession of a part of the premises, the respond- ent embarked upon a fresh round of litigation giving rise to this appeal. He filed a regular Civil Suit No. 435 of 1966 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 on May 4, 1967. Nand Lal and Kakibai were not impleaded to the suit presumably because they had surrendered possession of the two rooms on the second floor in pursuance of the order passed in appeal under the Slum Clearanceby the judgment of the Trial Court, Lal Chand, Kesho Ram and Jhangi Ram filed Civil Appeal No. 35 of 1967 in the Court of the Additional Senior Sub-Judge, Delhi. During the pendency of that appeal Lal Chand died on June 13, 1967 whereupon, his widow Bhiranwan Bai and his son Khem Chand applied for being brought on the record of the appeal as his legal representatives. 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 by his judgment dated November 18, 1967 dismissed the appeal as also the application filed by Lal Chands 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 No. 316 of 1967 in the High Court of Delhi against the judgment of the learned Additional Senior Sub-Judge. A learned Single Judge of the High Court held by his judgment dated September 30, 1974 that On the death of Lal Chand during the pendency of the first appeal, the cause of action did not survive to his legal representatives to continue the appeal and that therefore there was no one who could legitimately prosecute that appeal. The learned Judge, accordingly, confirmed the judgment of the first appellate Court and dismiss ed 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.

Reasoning: The High Court seems to have been impressed by the contention that the suit was not maintainable by reason of the provisions of s. 37A of the Slum Clearance Act, but it thought that Lal Chand having died there was no one before the Court who could legitimately contend that the suit was not maintainable. As stated before this was an erroneous approach to the problem, which makes it necessary for us to examine the merits of the contention as regards the maintainability of theare unable to appreciate how the judgment in that ease supports the contention of the respondent. All that was decided therein was that a person against whom an order for eviction is passed cannot be a tenant within the meaning of the Delhi Rent Control Act and that the definition of the word tenant as contained in that Act would not be affected by anything contained in s. 19 of the Slum Clearance Act. The question which arose in that case was whether s. 50 of the Delhi Rent Control Act barred the jurisdiction of the civil court to entertain a suit in relation to any premises to which that Act applied, for eviction of a tenant therefrom. Not only that no question arose in that case as to whether the definition of tenant as contained in the Delhi Rent Control Act should be extended to the Slum Clearance Act, but the Court observed expressly that: "No question as to what the rights of a tenant against whom a decree in ejectment has been passed in view of Section 19 of the Slum Areas Act are, arises in this appeal", and that the Court was not concerned in the appeal before it "with any question as to the protection given by the Slum Areas Act. to tenants" .... The question before us is not whether a person against whom a decree for eviction is passed is a tenant for the purposes of the Delhi Rent Control Act but whether he is a tenant for the purposes of s. 19 of the Slum Clearance Act. Lakhmi Chands (supra) case does not deal with this problem at all.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 purposes of s. 19(1) (a) it must follow that the suit is incompetent and cannot beone more aspect of the matter needs is to be ad-verted to. The respondent after obtaining a decree for eviction against Lal Chand and his alleged sub tenants applied for permission of the competent authority to execute that degree. 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 pos session of those two rooms. We are unable to , understand how after working out his remedy under the Delhi Rent Control Act as modified by the Slum Clearance Act, it is competent to the respondent to bring a fresh suit for evict ing the appellants from the premises on the ground floor. The authorities under the Slum Clearance Act who are exclu sively invested with the power to determine whether a decree for eviction should be permitted to be executed and, if so, to what extent, had finally decided that question, refusing to allow the respondent to execute the decree in respect of the ground floor premises. By the present suit, the respondent is once again asking for the relief which was included in the larger relief sought by him in the application filed under the Slum Clearance Act and which was expressly denied to him. In the circumstances, the present suit is also barred by the principle of res judicata. The fact that s. 11 of theCode of Civil Procedure cannot apply on its terms, the earlier proceeding before the competent authority not being a suit, is no answer to the extension Of the principle underlying-that section to the instant case. Section 11, it is long since settled, is not exhaustive and the principle which motivates that sect ion can be extended to cases which do not fall strictly within the letter of the law. The issues involved in the two proceedings are identical, those issues arise as between the same parties and thirdly, the issue now sough t to be raised was decided finally by a competent quasi judicial tribunal. The principle of res judicata is con ceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded on equity, justice and good con science which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue. Were it permissible to bring suits of the present nature, the beneficial jurisdiction conferred on the competent authority by the Slum Clearance Act would become illusory and meaningless for, whether the competent authori ty grants or refuses permission to execute a decree for eviction, it would always be open to the landlord to enforce the ejectment decree by filing a substantiative suit for possession. Verily, the respondent is executing the evic tion decree by installments, now under the garb of a suit. Apart from the fact that the suit is barred on account of principles analogous to res judicata, it is plainly in violation of the injunction contained in s. 19 (1)(b) of the Slum Clearance Act, if regard is to be had to the substance and not for the form of the proceedings. Lal Chands widow died after the decision of the second appeal by the High Court and before the filing of this appeal. Learned counsel for the respondent wants to utilise that event to highlight his argument that the cause of action cannot survive at least after her death, in view by the amendment made to s. 2(1) of the Delhi Rent Control Act by Amending Act 18 of 1976. We cannot accept this argument either. 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.