Saturday, 30 November 2019

Whether legal representative of deceased person can waive objection that decree is nullity?

It is true that a decree passed against a dead man is a nullity because it cannot be allowed to operate against his legal representatives when they were never brought on record to defend the case. As pointed out by the Supreme Court in the case of N. Jayaram Reddi (supra), while the law treaties such a decree as a nullity qua the legal representatives of the deceased defendant there is nothing to prevent them from deciding that they will not treat the decree as a nullity, but will abide by it as it stands, or as it may be modified thereafter on appeal. If the legal representatives adopt that alternative course of action, the Supreme Court proceeded, it cannot be possibly said that their option to be governed by the decree is against the law or any concept of public policy, or purpose or the public morality. It is, thus, a matter entirely at the discretion of the legal representatives of deceased party against whom a decree has been passed to decide whether they will raise the objection that the decree has become a nullity at the appropriate time during course of hearing or abandon all these technical objections and fight the litigation on merit. When no objection to that effect is raised and the case is fought on merit, according to the Apex Court, there is no scope to argue subsequently that the decree was a nullity.

IN THE HIGH COURT OF CALCUTTA

C.O. No. 1102 of 2004

Decided On: 11.10.2004

Phool Chand Halwai  Vs. UCO Bank and Ors.

Hon'ble Judges/Coram:
B. Bhattacharya, J.




1. This application under Article 227 of the Constitution of India is directed against order dated 16th January, 2004 passed by the learned Judge, 3rd Bench, City Civil Court at Calcutta in Misc. Appeal No. 21 of 2002 thereby affirming the order of eviction dated 21st June, 2002 passed by the Estate Officer against one Badri Prasad Halwai under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The present application has been filed by Ph Chand Halwai (Sharma), son of Badri Prasad Halwai, since deceased. There is no dispute that Badri Prasad Halwai, since deceased, was a tenant under the UCO Bank in respect of room No. 9, First Floor, 2, India Exchange Place, Kolkata 700 001 (hereinafter referred to as tenanted property). It appears from record that the Estate Officer issued a notice under Section 4 of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as 1971 Act) thereby asking the recorded tenant to show-cause why he should not be evicted on the grounds mentioned in the said notice.

2. Such notice was received by one Om Prakash Sharma, son of late Ramjilal Sharma, a neighbour of the recorded tenant. After receiving such notice, the said Om Prakash Sharma had written to the Estate Officer that the recorded tenant Badri Prasad Halwai died long ago and that at that time, the tenanted premises were in occupation of Phul Chand Sharma, the sole surviving legal heir of the said recorded tenant but the said Phul Chand had gone to his native place in Rajasthan where he had fallen ill. It was further mentioned that intimation had been sent to him and that he would take necessary legal step in the matter after returning from Rajasthan. The said Om Prasad Sharma, therefore, prayed for extension of the date of appearance, namely, March 5, 2002, by at least 3 months.

3. It further appears from the record that subsequently the Estate Officer issued another notice dated 7th March, 2002 in the same name of Badri Prasad Halwai which was verbatim reproduction of the earlier notice.

4. There is no dispute that pursuant to the notices issued by the Estate Officer, Mr. Susanta Kumar Basu, a learned Advocate entered appearance by filing Vakalatnama before the Estate Officer and the said Vakalatnama was signed by one Prem Kumar Sharma on behalf of the Badri Prasad Halwai (Sharma). It further appears that on 20th May, 2002, Mr. Susanta Kumar Basu, advocate, prayed for adjournment on behalf of the Badri Prasad Sharma alleging that his client's representative who was looking after the matter was out of station. It appears from the record that subsequently, written objection was filed on behalf of the Badri Prasad Halwai thereby praying for dismissing the proceedings for eviction. In such written objection, it was specifically contended, that Badri Prasad Halwai was a monthly tenant in respect of the tenanted property and had been regularly making payment of rent and there was no default. It was further alleged that Government of India laid down the guidelines in the year 1992 thereby specifically pointing out that the 1971 Act was not meant for persons who were lawful tenants. In the said application it was further contended that before further continuing with the proceedings for eviction, the Estate Officer was required to confirm that the directions and guidelines issued by the Central Government were strictly followed and in the absence of such decision, the Estate Officer was not competent to proceed further with the matter. Such written objection was, however, signed by Prem Kumar Sharma.

5. At the time of final hearing of the proceedings, however, no body appeared on behalf of the tenant and the Estate Officer passed an ex parte order of eviction.

6. Being dissatisfied with such order, an appeal was preferred before the Chief Judge, City Civil Court at Calcutta being Misc. Appeal No. 21 of 2002 by Phul Chand Sharma, the son of the recorded tenant, the petitioner herein, through Prem Kumar Sharma, his representative. In the said appeal, the son of the recorded tenant took specific plea that the proceedings having been initiated against a dead man the order of eviction was illegal. It was further contended that subsequently another notice on 7th March, 2002 having been issued under Section 4 of 1971 Act, the proceedings initiated on the basis of earlier notice dated 18th February, 2002 was bad. The learned Judge, City Civil Court, however, dismissed the said appeal.

7. Being dissatisfied, Phul Chand has come up with the present application under Section 227 of the Constitution of India through the same learned Advocate viz. Mr. Susanta Kumar Basu.

8. Mr. Chatterjee, learned Advocate appearing on behalf of the petitioner has raised two-fold submissions before this Court.

9. First, he has contended that Badri Prasad Sharma being admittedly dead, the order of eviction against Badri Prasad was a nullity and as such, the learned Judge, City Civil Court ought to have set aside the order of eviction by directing the Estate Officer to issue fresh notice upon the heirs of the deceased tenant.

10. Secondly, Mr. Chatterjee contends that the learned Court of appeal below ought to have held that as no notice under Section 4 of 1971 Act was served upon the petitioner, he being the heir of Badri Prasad, was not bound by the order of eviction passed against the deceased tenant and at the same time, he is entitled to challenge the order of eviction passed against his father and thus, the learned Court of appeal below should have set aside the order of eviction.

11. The aforesaid contentions of Mr. Chatterjee are seriously disputed by Mr. Chowdhury, the learned Advocate appearing on behalf of the Bank.

12. According to Mr. Chowdhury, the present petitioner did not disclose before the Estate Officer that Badri Prasad was dead. On the other hand, the Vakalatnama and the written objections were filed on behalf of the Badri Prasad Sharma, although, those were signed by one Prem Kumar Sharma on his behalf. Mr. Chowdhury contends that the petitioner all along contested the proceedings representing the estate of the deceased tenant and as such, the Estate Officer did not commit any illegality in passing the order of eviction.

13. Mr. Chowdhury next contends that although a decree against a dead man is a nullity but if it appears that his heirs entered appearance and participated in the trial without disclosing that the recorded tenant was dead, in such a case, the order of eviction passed against such dead person will be binding upon the heirs. In support of such contention Mr. Chowdhury relies upon the decision of Supreme Court in the case of N. Jayaram Reddi v. Revenue Divisional Officer and Land Acquisition Officer, AIR 1971 Supreme Court 1393. He also referred to the decision of Supreme Court in the case of Surajmal v. Radheshyam, 1988(1) RCR(Rent) 511 (SC) : AIR 1988 Supreme Court 1345.

14. Therefore, the first question that arises for determination in this application is whether the order of eviction passed against Badri Prasad by the Estate Officer is binding upon the present petitioner.

15. There is no dispute that the learned advocate on record of the present petitioner in this application also filed Vakalatnama on behalf of the Badri Prasad through one Prem Chand. Initially, although a neighbour had filed application before the Estate Officer disclosing that Badri Prasad was dead but ultimately, the written objection was filed on behalf of the Badri Prasad through Prem Chand and even the appeal preferred against Estate Officer's order was filed by the same Prem Chand on behalf of the present petitioner, namely Phul Chand.

16. It is true that a decree passed against a dead man is a nullity because it cannot be allowed to operate against his legal representatives when they were never brought on record to defend the case. As pointed out by the Supreme Court in the case of N. Jayaram Reddi (supra), while the law treaties such a decree as a nullity qua the legal representatives of the deceased defendant there is nothing to prevent them from deciding that they will not treat the decree as a nullity, but will abide by it as it stands, or as it may be modified thereafter on appeal. If the legal representatives adopt that alternative course of action, the Supreme Court proceeded, it cannot be possibly said that their option to be governed by the decree is against the law or any concept of public policy, or purpose or the public morality. It is, thus, a matter entirely at the discretion of the legal representatives of deceased party against whom a decree has been passed to decide whether they will raise the objection that the decree has become a nullity at the appropriate time during course of hearing or abandon all these technical objections and fight the litigation on merit. When no objection to that effect is raised and the case is fought on merit, according to the Apex Court, there is no scope to argue subsequently that the decree was a nullity.

17. In the case before us, the present petitioner or Prem Chand, his representative did not file any application pointing out that Badri Prasad was dead. On the other hand, he maintained that Badri Prasad was not liable to be evicted and he prayed for fixing the matter for hearing on the preliminary issue. However, ultimately nobody appeared on behalf of the petitioner, and in such circumstances, the Estate Officer decreed the proceedings.

18. Against the final adjudication, the present petitioner preferred an appeal and prayed before the appellate authority to set aside the order of eviction on the ground that the same was a nullity. In my view, the learned first appellate Court below rightly decided not to set aside the decree on such technical ground when the petitioner appeared through the self-same Lawyer, viz. Mr. Basu, and the same representative, viz. Prem Chand, and had invited the Estate Officer to decide the proceedings on merit on a preliminary point of law. The petitioner after appearance could draw attention of the Estate Officer that Badri Prasad was dead and disclose the names of the heirs and legal representatives but in stead of doing so, appeared through Prem Chand and raised preliminary objection on other point on merit and ultimately, did not contest the proceedings.

19. Mr. Chatterjee in this connection strongly places reliance upon a decision of a Division Bench of this Court in the case of Sisir Kumar v. Manindra Kumar, AIR 1958 Calcutta 681 contending that the recorded tenant having died prior to institution of proceedings, the provisions of substitution have no application and the present petitioner cannot be added in such proceedings when the recorded tenant died before the initiation of the proceedings. In the said case, a suit was filed against B and C, the heirs of one A under the wrong impression that A was dead. Subsequently, the mistake having been detected, an application was filed thereby praying for adding A after deleting B and C. In such circumstances, a Division Bench of this Court held that neither Order 1, Rule 10 nor Order 22 had any application in the case, and at the same time, by invoking inherent power, A could not be brought on record by deleting B and C. In my view, the said principle is applicable to a suit governed by the provisions contained in the Civil Procedure Code but cannot have any application to proceedings under the Act where there are provisions like Section 12 casting a duty upon the heirs of the deceased tenant to disclose the names of all the heirs and legal representatives of the deceased tenant to the Estate Officer and Section 13 permitting proceedings initiated even against a dead man to continue against his heirs and legal representatives.

20. After going through the provisions contained in Section 13 of the 1971 Act, I find that even if the recorded tenant died before any proceeding is taken, the proceeding may nevertheless continue against the heirs and legal representative of that person for the purpose of determination of arrears of rent or for assessment of damages etc. Such being the position, after service of notice of eviction proceedings when the petitioner himself appeared before the Estate Officer through Prem Chand but ultimately did not contest and against the final order, he preferred an appeal through Prem Kumar Sharma, his agent, the appellate Court rightly turned down such prayer. Moreover, it is rightly pointed out by Mr. Chowdhury, the learned counsel appearing on behalf of the opposite party No. 1 that in paragraph 9 of this application the petitioner has specifically admitted that he "duly" appeared before the Estate Officer. Thus, it is not the case of the petitioner that without his consent Prem Chand represented him before the Estate Officer and took steps. Therefore, the provisions contained in Section 13 equally apply to proceedings for eviction.

21. In the case of Sudhir Kumar v. Amritlal, (1946)50 Cal WN 801, another decision cited by Mr. Chatterjee, it was held by a learned single Judge of this Court that if a suit is filed against a dead person, his heirs cannot be brought on record by taking recourse to Order 22, Rule 10 of the Code. I have already indicated that the procedure with regard to substitution in a suit where the Civil Procedure Code applies cannot be applicable to the proceedings before Estate Officer in view of Sections 12 and 13 of the 1971 Act.

22. In the case of Hiralal v. Kalinath, AIR 1962 Supreme Court 199, the other decision cited by Mr. Chatterjee, all that was held by the Apex Court was that if a Court lacks inherent jurisdiction to pass a decree, such defect can be taken even in execution proceedings. I am not disputing that proposition of law for a moment; but in this case, in view of provisions contained in Sections 12 and 13 of the 1971 Act coupled with the fact that the petitioner waived his right to demand fresh notice under Section 4 of the aforesaid Act by entering appearance in the proceedings and raising objection on merit, the principles laid down in the case of Hiralal v. Kalinath (supra) cannot have any application to the facts of this case.

23. As regards other point, namely, whether absence of any notice under Section 4 in the name of the heirs of the deceased tenant vitiates the order of eviction, I am of the view that the same is equally devoid of any substance as a notice under Section 4 of 1971 Act cannot be treated to be equivalent to notice terminating tenancy but it is in essence, a summons of the proceedings for eviction. Therefore, it is a case, where after a summons was issued against a dead man, his legal representative, viz. the petitioner, appeared and asked the Estate Officer to hear the case on merit. There was, thus, no bar in continuing with the proceedings against the petitioner and the petitioner was entitled to raise all the defences available to his deceased father.

24. I, therefore, find that this revisional application is devoid of any substance as mere absence of fresh notice of eviction proceedings under Section 4 of the Act, 1971 upon the petitioner has not vitiated the order of eviction inasmuch as the petitioner himself had entered appearance and invited the Estate Officer to decide the same on a preliminary point on merit.

25. I, thus, find no mason to interfere with the order passed by the Authorities below. This revisional application is, thus dismissed. In the facts and circumstances, them will be, however, no order as to costs.




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