Karnataka High Court
Yasimsab Fakruddinsab Dori vs Basappa on 13 September, 1990
Equivalent citations: ILR1991KAR3954, 1991(2)KARLJ219
ORDER K.A. Swami, J.
1. This Civil Revision Petition is preferred against the order dated 24-7-1984 passed by the II Additional District Judge, Dharwar in Civil Revision Petition No. 276/1982 confirming the order dated 1-10-1982 passed in H.R.C. No. 69/1980 by the II Additional Munsiff, Dharwad.
2. This Civil Revision Petition is referred to a Division Bench by Shyamsundar J., on the ground that Kulkarni, J., has taken conflicting views in the two cases, namely, MOHAMMED GHOUSE v. JANA HAJI SYED IBRAHIM, SINCE DECEASED BY LRS. and BHARAT PETROLEUM CORPORATION LTD. v. REVANAPPA SANGAPPA.
3. The petitioner in this Revision Petition is a tenant of the schedule premises - front portion bearing City Survey No. 2649/M, situated at Mangalvarpet, Dharwar City, measuring about 12' length and 10' width. The premises is a non-residential premises used for the purpose of running a flour mill. One Shri Basappa, adopted son of Basappa Hangarki was the landlord of the premises. He filed the aforesaid H.R.C. No. 69/1980 for possession of the schedule premises on the ground that he required the premises reasonably and bonafide for his own occupation i.e., for running a Kirana shop. The actual plea contained in para-2 of the petition is as follows:
4. The tenant resisted the case. The Court of first instance decided the following points:
1. Whether the premises was required by the landlord reasonably and bonafide for his own occupation?
2. In the event the order of eviction was passed, whether the tenant would be put to greater hardship?
5. On the basis of the evidence on record, the learned Munsiff, held that the landlord established that he required the premises b6nafide and reasonably for his own occupation, i.e., for running a Kirana shop, that the tenant would not be put to greater hardship, if an order of eviction is passed. Accordingly, the learned Munsiff, allowed the application and passed an order of eviction under Section 21 (1)(h) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as 'Act').
6. Aggrieved by the order of eviction, the tenant went up in Revision before the District Judge. Revision Petition was heard and disposed of by the II Additional District Judge, Dharwar. During the pendency of the Revision Petition, the landlord dated. The legal representatives of the landlord, namely, wife and children were brought on record. Before the learned District Judge, the following points were raised:
1. Whether the legal representatives of the deceased landlord are entitled to the benefit of the order of eviction?
2. Whether the petitioner proves his reasonable and bona fide requirement?
3. Whether greater hardship would be caused to the landlord in the event of an order of eviction?
4. What order?
7. Points 1 to 3 were answered in the affirmative. Accordingly, the Revision Petition was dismissed. The learned District Judge for answering the point No. 1 in the affirmative, placed reliance on a Decision of the Supreme Court in SMT. PHOOL RANI AND ORS. v. SH. NAUBAT RAI AHLUWALIA, . We notice that point No. 3 is not correctly framed as it does not reflect Sub-section (4) of Section 21 of the Act.
8. Being aggrieved by the order of the learned District Judge, the tenant has come up in revision.
9. In the light of the contentions urged on both the sides, the following points arise for consideration:
1. In the light of the plea raised by the original landlord, whether the legal representatives of the original landlord, are entitled to continue the proceeding? In other words, whether the action for possession instituted by the original landlord under Section 21(1)(h) of the Act, can be held to have perished with the death of the original landlord, or it survives to the legal representatives?
2. Which of the decisions in Rajgopal v. P. Revanna, 1974(1) K.L.J. 425; Mohammed Ghouse v. Janab Haji Syed Ibrahim, deceased by L.Rs., 1984(1) K.L.C. 482; Bharath Petroleum Corporation Ltd., v. Revanappa Sangappa, 1983(2) K.L.J. 505, lays down the law correctly? And whether there is conflict between the two decisions - Mohammed Ghouse v. Janab Haji Syed Ibrahim, deceased by L.Rs & Bharath Petroleum Corporation Ltd., v. Revanappa Sangappa?
3. Whether the order of eviction requires to be interfered with under Section 115 of the Code of Civil Procedure?
10. Points 1 & 2:- As the Decisions referred to in point No. 2, will have a bearing on Point No. 1, we consider it just and appropriate to consider both the Points together. We have already reproduced the plea raised by the original landlord for possession of the schedule premises. The original landlord has not pleaded that the members of his family also want to run the business along with him, therefore, the premises is reasonably and bona fide required for himself and also for the members of his family for running the business. The original landlord has specifically stated that for the last 6 to 7 years due to fracture in his leg, he was not in a position to move about; that in the last one or two years, he has been able to walk with the aid of the stick; that he has no other avocation for his livelihood; that he has three children and the wife; that in these days of high cost, it has become difficult to get on. Therefore he wants to run a grocery shop in the schedule premises in order to eke-out his livelihood. Hence he requires the schedule premises reasonably and bonafide for his own use and occupation. Thus except stating that his family consists of himself and his wife and his three children, he did not plead that his wife and his children are interested in the business and they also want to run the business. He specifically pleaded that he intended to run a grocery shop in order to eke-uut livelihood, so that he can maintain his family. Section 21(1)(h) of the Act reads thus:
(h) that the premises are reasonably and bona fide required by the landlord for occupation by himself or any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust, that the premises are required for occupation for the purposes of the trust; No doubt, the wordings contained in Section 21(1)(h) of the Act are only to the effect that the premises are reasonably and bonafide required by the landlord for occupation by himself. But by catena of Decisions, this Court has held that it also includes the requirements of the members of the family of the landlord. The expression "family" is defined under Section 3(ff) of the Act. "family" in relation to person means the wife or husband of such person and his or her dependent children. Therefore, under Section 21(1)(h) of the Act, it is open to a landlord to seek possession of the premises either for residential or for non-residential purpose, not only for himself but also for the members of his family. It is necessary for the landlord to plead such a case and prove it. In the instant case, as already pointed out, the original landlord has not pleaded that the schedule premises is required for the members of his family for running a business. It is also not the case of the landlord that there is anything like a family business. He has also not pleaded that the business is intended to be carried on by himself and the members of his family.
11. In Smt. Phool Rani and Ors. v. Sh. Naubat Rai Ahluwalia, Section 14(1)(e) of the Delhi Rent Control Act, 1958 was considered. Section 14(1)(e) of the Delhi Rent Control Act was as follows:
"For occupation as a residence for himself and members of his family."
The landlord in that case pleaded as follows:
"The premises are required bonafide by the petitioner for occupation as residence for himself and members of his family and that the petitioner has no other reasonable suitable residential accommodation."
The landlord died during the pendency of the proceedings. The Supreme Court took a view that the proceeding abated, because the cause of action was personal to the landlord. The relevant portion of the Judgment is as follows:
"11. Thus, the requirement pleaded in the ejectment application and on which the plaintiff has founded his right to relief is his requirement, or to use an expression which will effectively bring out the real point, his personal requirement. If the ejectment application succeeds - we will forget for a moment that the plaintiff is dead - the premises in the possession of the tenant may come to be occupied by (he plaintiff and the members of his family but that does not make the requirement pleaded in the application any the less a personal requirement of the plaintiff. That the members of his family must reside with him is his requirement, not theirs. Such a personal cause of action must perish with the plaintiff."
In the aforesaid Smt. Phool Rani's case, their Lordships also state three categories of cases:
"(i) cases in which the death of the plaintiff occurred after a decree for possession was passed in his favour say, during the pendency of an appeal filed by the unsuccessful tenant;
(ii) cases in which the death of the decree holder landlord was pleaded as a defence in execution proceedings; and
(iii) cases in which, not the plaintiff but the defendant-tenant died during the pendency of the proceedings and the tenant's heirs took the plea that the ejectment proceedings cannot be continued against them."
But ultimately Their Lordships observed thus:
"We have referred to some of the decisions in the three categories, not with a view to determining their correctness but only in order to show that they rest on different principles or could be explained in reference to such principles. We are concerned with a matter not involving the application of any of those principles. For reasons already stated, we are of the view that considering the nature of the claim made in the instant case and the bundle of facts which constitute the plaintiff's cause of action, his right to sue will not survive to his legal representatives."
12. The correctness of this Decision came up for consideration before the larger Bench of the Supreme Court in SHANTILAL THAKORDAS AND ORS. v. CHIMANLAL MAGANLAL TELWALA, . The larger Bench of the Supreme Court after stating the facts of Phool Rani's case and also on quoting the relevant words of personal requirement of the premises contained in Section 14(1)(e) of the Delhi Act and also on noticing the actual plea raised by the landlord and the view taken in Phool Rani's case in para-11 of that Decision held thus:
"In our considered opinion in face of the wordings of Section 14(1)(e) of the Delhi Act, the view expressed in Phool Rani's case as stated above, is not correct. If the law permitted the eviction of the tenant for the requirement of the landlord "for occupation as a residence for himself and members of his family", then the requirement was both of the landlord and the members of his family. On his death the right to sue did survive to. the members of the family of the deceased landlord. We are unable to take the view that the requirement of the occupation of the members of the family of the original landlord was his requirement and ceased to be the requirement of the members of his family on his death. After the death of the original landlord the senior member of his family taken his place and is well competent to continue the suit for eviction for his occupation and the occupation of the other members of the family. Many of the substituted heirs of the deceased landlord were undoubtedly the members of his family and the two married daughters and the children of a deceased daughter in the circumstances could not be held to be not members of the family of the deceased landlord."
With reference to the another contention that the decree-holder having died, the decree could not be attacked, urged based on the observations made in Phool Rani's case Their Lordships further observed thus:
"Counsel for the appellants endeavoured to bring their case within one of the exceptions noted in Phool Rani's case . He submitted that a decree had already been passed in favour of the original plaintiff by the trial Court and that could not be disturbed on his death either in appeal or revision. We do not accept the contention as sound or correct. In Phool Rani's case no final opinion was expressed on this question. Moreover, we find that on the earlier occasion the High Court had set aside the decree and remanded the suit to the First Appellate Court for a fresh decision. There was therefore, no decree in existence to attract the exception."
13. Both these Decisions came to be considered in PUKHRAJ JAIN v. MRS. PADMA KASHYAP AND ANR., . In Pukhraj's case, the scope and effect of Section 21 of the Delhi Act came up for consideration. In that context, the effect of the death of the landlord during the pendency of the proceeding was considered. The relevant portion of the Judgment for our purpose is contained in paras 6 and 7, which is as follows:
"Maxim of actio personalis moritur cum persona cannot apply, either, on principle or on facts. In Supreme Bank v. P.A. Tendulkar , this Court while discussing applicability of the maxim held "whatever view one may take of the justice of the principle it was clear that it would not be applicable to actions based on contract or where tort feasors' Estate had benefited from a wrong done. Its applicability was generally confined to actions for damages for defamation, seduction inducing a spouse to remain apart from the other and adultery". In Phool Rani v. Naubat Rai , a decision which was relied by petitioner in support of submission that an application filed for eviction of a tenant on bona fide need lapses on the death of landlord and it could not be continued by his legal representatives overruled in Shantilal Thakur Das v. Chaman Lal Magan Lal Lala , it was observed that doctrine of actio personalis moritur cum persona did not apply to Rent Control Act. Even otherwise an action for eviction abates only if the cause of action does not survive. What is the cause of action for an application for vacant possession in Section 21 death of landlord or expiry of time for which tenancy was created. Obviously the latter, the failure of tenant to honour his commitment to vacate the premises after expiry of time for which he was inducted with permission of Controller. The death of the person who obtained the permission has nothing to do with it. Permission was obtained because the landlord did not require the premises on the date when it was let out to tenant. That does not continue on the date when the tenant does not vacate the premises. The necessity of not requiring the premises, for some time, or for the duration the tenant was inducted was confined to the date when the permission was granted. It could not be taken further to the time when the question of vacation arose. The cause of action for granting permission was the non-requirement by the landlord of the premises for the time mentioned in the agreement whereas cause of action for eviction is non-vacation by the tenant after the expiry of period. Therefore, it is immaterial who is the landlord at the time when the action for vacation arose."
14. In order to appreciate the ratio of the Decisions in Shantilal Thakordas case and Pukhraj's case, it is necessary to refer to the facts of each case so that the Decision rendered in each of them can properly be appreciated. Before that we may advert to the facts of Phool Rani's case also. In Phool Rani's case, the landlord sought for possession of the premises for his residence and also for the residence of the members of his family under Section 14(1)(e) of the Delhi Act. The landlord pleaded thus:
"The premises are required bonafide by the petitioner for occupation as residence for himself and members of his family and that the petitioner has no other reasonable suitable residential accommodation."
The petition was filed under Section 14(1)(e) of the Delhi Act which, as already pointed out, provides for eviction on the ground that the premises is required 'for occupation as a residence for himself and members of his family'. The High Court had rejected the petition on the ground that on the death of the landlord, the cause of action came to an end as what was pleaded by the landlord was personal to his requirement. The Supreme Court agreed with that view and dismissed the appeal on the ground as stated in para-11 of its Judgment which has already been re-produced in the earlier portion of this order. But in Shantilal's case, the larger Bench did not agree with the Decision in Phool Rani's case. Shantilal's case was the one filed under Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Bombay Act) by the landlord who was a partner in a firm. The requirement pleaded in the petition was that the premises was required by the landlord for reasonable and bonafide use by the firm in which he was one of the partners. During the pendency of the proceedings, the landlord died. Therefore, the question that arose for consideration was as to whether the proceeding could be proceeded with. Before the Supreme Court it was contended that Phool Rani's case was not correctly decided. The larger Bench held that Phool Rani's case3 was not correctly decided. In coming to that conclusion Their Lordships specifically took note of the provisions contained in Section Bombay Re of the Delhi Act and the plea raised by the landlord that the premises were required bonafide by the petitioner for occupation as a residence for himself and the members of his family and that the petitioner had no other reasonable and suitable residential accommodation. It was in the context of these facts, the larger Bench held that they were not able to take a view that the requirement of the occupation of the members of the family of the original landlord was his requirement and ceased to be the requirement of the members of his family on his death. It was also further held that after the death of the original landlord the senior member of his family was to take his place and he would be competent to continue the suit for eviction for his occupation and the occupation of the other members of the family. In addition to this, it was also contended that a decree had already been passed in favour of the original plaintiff by the trial Court and that could not be disturbed on his death either in appeal or revision. Their Lordships did not accept the contention as sound or correct, and further pointed out that in Phool Rani's case no final opinion was expressed on this question. It was also further pointed out that in Phool Rani's case no final opinion was expressed on this question. It was also further pointed out in Shantilal's case that on the earlier occasion the High Court had set aside the decree and remanded the suit to the First Appellate Court for fresh decision. There was, therefore, no decree in existence to attract the execution.
15. In Pukhraj's case, the landlord did not require the premises for a particular period. Therefore, he, in terms of Section 21 of the Delhi Act, sought for permission of the Controller to lease out the premises for a particular period. He accordingly obtained permission of the Controller and leased out the premises for a particular period. But before he could initiate the proceedings for possession, the landlord died. The L.Rs. of the landlord initiated the proceedings. The question for consideration was as to whether proceedings for recovery of possession under Section 21 of the Delhi Act could be initiated and continued by L.Rs. of the landlord who had obtained permission but who died before expiry of period of tenancy. Section 21 of the Delhi Act was as follows:
"Recovery of possession in case of tenancies for limited period -
(1) Whether a landlord does not require the whole of any part of any premises for a particular period, and the landlord, after obtaining the permission of the Controller in the prescribed manner, lets the whole of the premises or part thereof as a residence for such period as may be agreed to in writing between the landlord and the tenant and the tenant does not, on the expiry of the said period, vacate such premises, then, notwithstanding anything contained in Section 14 or in any other law, the Controller may, on an application made to him in this behalf by the landlord within such time as may be prescribed, place the landlord in vacant possession of the premises or part thereof by evicting the tenant and every other person who may be in occupation of such premises.
(2) While making an order under Sub-section (1), the Controller may award to the landlord such damages for the use or occupation of the premises at such rates as he considers proper in the circumstances of the case for the period from the date of such order till the date of actual vacation by the tenant."
On considering the scope and ambit of Section 21 of the Delhi Act and also the definition of the word 'landlord' as contained in Section 2(e) of the Delhi Act, the Supreme Court held thus:
"2(e). 'landlord' means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant."
Expression, "for the time being" makes it clear, that landlord has to be understood in praesenti. 'That is anyone entitled to receive rent is the landlord. It does not visualise, past or future landlord. Therefore, the word 'landlord', on plain reading of Section 21 does not warrant construction of the word in any other manner. Basis for submission, however, that landlord in second part of Section 21 entitling him to claim vacant possession should be confined to the person who obtained permission was founded on use of expression, "who does not require the whole or any part of the premises for a particular period." Attempt was made to personalise eviction proceedings by linking it with the person, due to whose non-requirement the permission was granted resulting in automatic exclusion of legal representatives. To put it interpretationally the word "landlord", in second part was urged to be understood in a manner different than it is defined in Section 2(e). Can it be said that context or setting of Section 21 is such that the word "landlord" in second part of it should be understood in a different sense than that in definition clause? Not on prima facie reading of it which has already been adverted to. Neither on close analysis. What is visualised is occasion for short duration tenancy due to non-requirement of whole or part of premises by landlord for time being; method of its creation by written agreement entered with tenant, statutory status to it by permission obtained from Controller and execution by restoration of vacant possession if the tenant does not vacate after expiry of period. All condensed in one. Constructionally it is in two parts one creation of short term tenancy and other its execution after expiry of time. Both stand on -their own and operate independently. Non-requirement of premises for time being furnishes basis for entering into agreement for periodical tenancy. Truth of it or its genuineness are relevant considerations for granting permission.
But it exhausts thereafter except to the limited extent pointed out in decisions referred earlier. And the permission granted continues unabated, unaffected irrespective or variation in requirement. Necessity of landlord, again, does not entitle him to seek its revocation. Even his death cannot shorten the period. Similarly once period expires the agreement, the permission all cease to operate by operation of law. Nothing further is required. Vacation is not linked with landlord but with time. Expiry of it obliges tenant to vacate. If he does not then the landlord may approach Controller for putting him in vacant possession. Which landlord? Obviously whosoever is the landlord at the time of efflux of tenancy. Death of landlord does not either shorten or enlarges period nor the consequences envisaged are altered or affected."
16. In that connection the contention was raised that maxim of actio personalis moritur cum persona was applied to the case. The Supreme Court held that it did not apply both in principle and on facts. The actual observations of the Supreme Court are already excerpted above in para 13. Thus, it is clear that the Decision in Pukhraj's case turned upon the provisions contained in Section 21 of the Delhi Act. The right of the landlord to seek possession under Section 21 of the Delhi Act did not depend upon the original landlord's survival as pointed out by the Supreme Court. It was the liability incurred by the tenant to vacate the premises on the expiry of the period for which the premises was leased out on obtaining the permission of the Controller. That liability did not vanish on the death of the landlord. Its enforcibility did not depend upon the survival of the landlord. In this context, it was observed that the maxim of actio personalis moritur cum persona did not apply to the case either in principle or on facts. In this context, it was also observed that in Shantilal's case it was held that the doctrine of actio personalis moritur cum persona did not apply to Rent Control Acts. This observation made with reference to Shantilal's case has to be read in the context of the facts considered in Shantilal's case. We have already pointed out that in Shantilal's case the views expressed in Phool Rani's case were considered and in that context it was held that on the death of the landlord, the legal heirs of the landlord were entitled to continue the proceedings because the plea of the landlord was that the premises was required for himself and also for the members of his family. There are several grounds on which the possession of the premises can be sought by the landlord under Rent Control Act. For example, Section 21(1) of the Karnataka Rent Control Act provides as many as 16 grounds described as Clauses (a) to (p). The grounds enumerated in Clauses (a), (b), (c), (d), (e), (f), (g), (i), (k), (m), (n), (o) and (p) do not depend upon the survial or death of the landlord. The cause of action in respect of these grounds can continue even after the death of the landlord. Hence, the L.Rs. of the landlord can continue the proceedings. The question as to whether the proceeding for eviction will survive on the death of the landlord will become relevant only when the eviction proceeding is based on the grounds enumerated in Clauses (h), (j) and (I). Even in the case of Clause (h) if the landlord pleads that he requires the premises for use and occupation for himself and/or the members of his family, even on the death of the landlord, the proceeding can be continued by his legal representatives - the members of his family. In the case of a proceeding in which the possession is sought for non-residential purpose i.e., for running a business or for one's own profession, if it is pleaded that the premises is required for carrying on the business by the landlord and/or by the members of his family or the business pleaded is a family business, the proceeding can be continued even on the death of the original landlord because, the requirement pleaded was not confined only to the landlord but it also covered the requirement of the members of his family. However, in the case of profession which is personal to the landlord such as legal profession, medical profession and any other profession which requires special acumen or a special qualification unless the members of his family are also carrying on the same profession and that is pleaded in the petition the proceeding will not survive on the death of the landlord because the very requirement pleaded in the petition would be that the landlord required the premises for carrying on his profession which was personal to him. Similarly, in the case of Section 21 (1)(j) of the Act, the requirement is that the landlord requires the premises reasonably and bona fide for immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting a new building in place of the premises sought to be demolished. Such a requirement can be the requirement of the landlord which is personal to him and which may not be the requirement of the other members of the family or the L.Rs. of the landlord, unless it is specifically pleaded that the members of the family of the landlord also require the premises for that purpose. Same would be the case which falls under Section 21 (1)(l) of the Act. It is not possible to state in general terms or lay down the trite rule that a particular proceeding will continue or will not continue, as it has to be decided on the pleadings of the case. We have already pointed out that the effect of the Decisions of the Supreme Court in Shantilal and Pukhraj5 cases that whether the proceeding under the Rent Act will survive on the death of the landlord or not would depend upon the actual pleas raised by the landlord and the ground on which the eviction is sought. It is in this context only we have just now pointed out that there are certain grounds which survive even after the death of the landlord and which can be continued. However there are certain grounds viz., Clause 21 (1)(h) and (j) and (I) the continuation of the proceedings on the death of the landlord would depend upon specific plea raised by the landlord i.e., the plea raised was a personal requirement of the landlord or whether it was for himself and/or also for the members of his family. We may also point out in this regard that in RAJAGOPALA v. P. REVANNA BY L.RS., 1974(1) KLJ 425. K. Jagannatha Shetty, J., as he then was, held thus:
"Revanna died before the evidence commenced in the proceedings. His son who was impleaded as one of the legal representatives gave evidence. He stated that the shop is required by him to continue his father's business and there is no other premises available to him. Believing that evidence, learned Munsiff held that the landlord has proved that the shop is reasonably and bona fide required by him for his personal occupation and if the possession is not given, it would cause him greater hardship. Those findings were affirmed by the District Judge in the appeal preferred by the tenant.
The contention urged before the appellate Judge was, that the legal representatives of Revanna had no right to continue the action for eviction on a plea which was different from that put forward by Revanna. it was urged that the requirement of Revanna that the premises were bona fide needed for his occupation was personal to him on his death, his legal representatives cannot continue the proceedings on the ground that the premises are required for their bona fide use and occupation.
The learned Judge rejected that contention while dismissing the appeal. He has held that the provisions of Section 21(1)(h) are comprehensive enough and, the requirement contemplated therein is not merely the need of the landlord personally but also his wife or children or other dependents.
The same contention has been pressed before me on behalf of the tenant.
Under Section 21(1)(h) of the Act, the landlord can ask for possession of any premises on the ground that the premises are reasonably and bona fide required for his personal occupation Or for any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust, that the premises are required for occupation for the purpose of the trust. Revanna, in his application for eviction has stated that "the petition schedule shop is reasonably and bona fide required by him for the purpose of his business". He has never stated that the premises were required for his sons or for continuing his family business. His need was therefore, purely personal to him.
Under Rule 3 of Order 22 CPC where a sole plaintiff or sole surviving plaintiff dies and the right to sue survives the Court, on an application made in that behalf, shall cause the legal representatives of the deceased plaintiff to be made a party and shall proceed with the suit or the proceeding. The legal representative of a deceased plaintiff can only prosecute the cause of action as originally framed.
Sub-clause (ii) of Rule 4 of Order 22 CPC is more specific on this question. It provides that when a sole defendant or sole surviving defendant dies and the right to sue survives his legal representatives who are brought on record may make any defence appropriate to his character as legal representatives of the deceased defendant. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased [See: J.C. Chaterjee v. Shri Sri Kishan Tandon ].
In my Judgment, the position cannot be different for the legal representatives of the deceased plaintiff, when a plea of the deceased plaintiff was personal to him. A person who is brought on record under Rule 3 can raise only such pleas appropriate to his character as legal representative. Likewise, the defendant can raise no defence against the legal representative, other than what he could have raised against the deceased plaintiff himself. Such being the case, was it open to the legal representatives of Revanna to raise a plea that the shop is required by them for their business and for their occupation, when no such plea was raised by Revanna in his application for eviction. Under Section 21 (1)(h) Revanna could have brought an action or eviction of the tenant on the ground that the premises were bona fide needed not only to him personally but also for the need of his sons or other dependants. He did not take up the cause of his sons or other relations. He pleaded that the premises were required for him for continuing his business. It was his personal requirement and on his death, his legal representatives cannot take up that plea and much less they could contend that the premises are bona fide required by them. The tenant had no opportunity to put forward his defence against the bona fide requirements of the legal representatives of Revanna. The evidence adduced in the case by the heirs of Revanna that the premises were needed by them, was therefore, contrary to the pleadings in the case and cannot therefore be looked into.
The learned Judge, in my view, was in error in upholding the eviction order."
The facts of Rajagopala's case and the case on hand are similar. Further we have also pointed out that survival of the cause on the death of the landlord depends upon the plea raised in a petition filed under Section 21(1)(h) of the Act. The aforesaid Decision in Rajagopala's case accords with our view expressed herein. Therefore, we affirm the view expressed in Rajagopala's case.
17. In Mohamed Ghouse's case, Kulkarni, J., relied upon Phool Rani's case. We have already pointed out that Phool Rani's case has been overruled by the Supreme Court in Shantilal's case and it has also been further held in Pukhraj's case that Phool Rani's case has been overruled by the Decision in Shantilal's case. In Mohammed Ghouse's case, Kulkarni J., has relied upon the first category of cases mentioned in para 13 of the Judgment of the Supreme Court in Phool Rani's case and also the observations contained in para 14 therein. With reference to the exceptions mentioned in Phool Rani's case the larger Bench of the Supreme Court in Shantilal's case as already pointed above held that on those exceptions no final opinion was expressed in Phool Rani's case and it was further held that the first exception mentioned in Phool Rani's case was neither sound nor correct. In addition to this in Phool Rani's case itself Their Lordships observed that they have referred to some of the Decisions in the three categories not with a view to determining their correctness but only in order to show that they rest on different principles or could be explained with reference to such principles. Their Lordships further observed that they were concerned with the matter not involving the application of any of those principles and decided the case only on considering the nature of the claim made and the bundle of facts which constituted the plaintiff's cause of action and held that his right to sue did not survive to his L.Rs. Kulkarni, J., no doubt referred to the Decision in Shantilal's case but nevertheless proceeded on the basis that the Decision in Shantilal's case did not disapprove the principle laid down in Phool Rani's case3 whereas it was not so as a matter of fact, the Supreme Court held that Phool Rani's case was not correctly decided. Kulkarni, J., also distinguished the Decision in Rajagopala's case6 and further held that Rajagopala's case did not take note of the Decision of the Supreme Court in Phool Rani's case. The Decision in G.C. JOSHI BY L.RS. AND ANR. v. P. KUPPUSWAMY AND ANR., 1982(2) KLC 230 was also distinguished on the ground that the Decisions in Phool Rani's and Shantilal's cases were not considered. In view of the discussion made above, it is not possible to agree with Kulkarni, J., that Phool Rani's case has not been overruled in Shantilal's case. Therefore, it is not possible to hold that the Decision in Mohammed Ghouse case has laid down the law correctly. Therefore, it has to be overruled. We accordingly, overrule the Decision in Mohammed Ghouse case.
18. The facts involved in Bharat Petroleum Corporation Ltd. v. Revanappa Sangappa2 By L.Rs. decided by Kulkarni J., were that the landlord sought for possession of the premises under Section 21 (1 )(l) of the Act. The said provision reads thus:
"That where the premises are land, such land is reasonably and bona fide required by the landlord for the erection of a new building which a local authority or other competent authority has approved or permitted to build thereon."
The landlord sought for possession on the ground that he reasonably and bona fide required the premises for purposes of erecting a building to run a Boarding in order to earn more money. The Munsiff dismissed the petition. The District Judge took a different view and set aside the order of the Munsiff and allowed the eviction petition. The tenant came up with revision petition before this Court. During the pendency of the revision petition, the landlord died on 9-2-1977. The question that arose for consideration was as to whether the L.Rs. could continue the petition. In other words the question for consideration was whether the cause of action survived to the L.Rs. of the deceased landlord. Kulkarni, J., following the Decisions in Rajagopala's case, P. HAJEE ABDUL SUBHAN SAHIB v. MADRAS GENERAL HARDWARE, 1971 (2) Mys. L.J. 18 and KALAPPANAHALLI GOWDRA SINDAPPA'S CASE, C.R.P. No. 2495 of 1973 held that on the death of the landlord, the cause of action that was available to the original landlord did not survive to the L.Rs. Accordingly, he allowed the revision petition and set aside the order of eviction. Thus, this case was decided on the plea raised by the landlord that he required the premises reasonably arid bona fide for the erection of a new building. This Decision accords with the view expressed by us as it is decided on the basis of the plea raised by the landlord and the ground falling under Section 21(1)(l) of the Act. As we have already overruled the Decision in Mohd. Ghouse1 the conflict that was pointed out between the Decisions in Mohd. Ghouse and Bharat Petroleum does not survive.
19. We may also point out that the definition of the word 'landlord' for the purpose of Section 21 (1)(h) of the Act has to be read with the explanation provided to Sub-section (4) of Section 21 of the Act. The definition of the word 'landlord' as contained in Section 3(h) of the Act is as follows:
" 'Landlord' means any person who is for the time being receiving or entitled to receive, rent in respect of any premises whether on his own account or on account, or on behalf, or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant; and includes any person not being a tenant who from time to time derives title under a landlord; and further includes in respect of his sub-tenant a tenant who has sub-let any premises."
The explanation to Sub-section (4) of Section 21 provides that for the purpose of Clause (h) of the proviso to Sub-section (1), the expression 'landlord' shall not include a rent-farmer or rent-collector or estate manager. Therefore, it is contended by the respondent-land lord that it is only three categories of landlords viz., the rent farmer, rent collector and estate manager are excluded from maintaining a petition under Section 21(1)(h) of the Act. As the L.Rs. of the deceased landlord do not fall under any one of the aforesaid three categories and as they become entitled to receive rent on the death of the landlord being the L.Rs. they fall within the definition of the word 'landlord' and as such they are entitled to continue the petition under Section 21 (1)(h) of the Act on the death of the original landlord. It is no doubt true that the L.Rs. of the landlord are not excluded from the definition of the word 'landlord'. In a petition filed under Section 21(1)(h) of the Act they become landlords, as the L.Rs. on the death of the original landlord. But this does net in any way help the respondent because the right to continue the cause by the L.Rs. in a petition under Section 21(1)(h), in turn, depends upon the plea raised in the petition viz., as to whether the possession of the premises is sought on the ground that it is required for the landlord and/or for the members of his family. If no plea is raised in the petition that the premises is also required for the use and occupation of the members of the family and/or for running the business in the case of seeking possession for non-residential purpose that the premises are required by the landlord and/or by the members of his family, the cause will not survive on the death of the landlord. As already pointed out in the instant case, the original landlord has not pleaded that the premises are also required by the members of his family to run the business. The original landlord pleaded that he himself required the premises for running the business in order to maintain his family. Therefore, it is not possible to hold that the L.Rs. of the deceased landlord falling within the definition of the word 'landlord' are entitled to continue the proceedings because there is no plea that they also reasonably and bona fide required the premises for running the business. Therefore, the petition has to fail.
20. For the reasons stated above, Point No. 1 is answered as follows:
"In the light of the plea raised by the original landlord, the cause of action perished with the death of the original landlord as such the legal representatives of the landlord are not entitled to continue the proceeding."
21. On Point No. 2, we affirm the view expressed in Rajagopala's case and Bharat Petroleum's case and overrule the Decision in Mohd. Ghouse's case.
22. Point No. 3: In the light of the finding recorded on Point No. 1, no other reasoning is required to hold that the order of eviction is liable to be interfered with because the cause on which the order of eviction is passed has ceased to exist during the pendency of the proceeding.
23. However, it is contended by Sri Hegde, learned Counsel for the respondent that as the death has taken place after an order of eviction is passed, a right is accrued to the L.Rs. of the deceased landlord, therefore, it is open to the L.Rs. to defend the decree on the ground on which the eviction is sought. In the facts and circumstances of the case and in the light of the observations made in para 6 of the Decision of the Supreme Court in Shantilal's case, the question does not depend upon the fact that the death of the landlord has taken place after the passing of the decree for eviction. The question depends upon as to whether on the death of the landlord and in the light of the cause pleaded in the petition whether it survives to the L.Rs. The order of eviction had not become final. As per Section 50 of the Act, it had been challenged in a Revision before the District Court, the Revision was a continuation of the proceeding and as such the proceeding had not become final. When no finality is reached and during the pendency of the proceeding the cause ceases to continue and it does not survive, the fact that an order of eviction is passed will not by itself be sufficient to hold that the L.Rs. can continue the proceeding. Hence, it is not possible to accept the contention of the learned Counsel for the respondent. It is accordingly rejected. Accordingly, Point No. 3 is answered in the affirmative.
24. For the reasons stated above, the Revision Petition is allowed. The order dated 24-7-1984 passed by the District Judge, Dharwad in C.R.P. 276/1982 confirming the order dated 1-10-1982 passed by the II Additional Munsiff, Dharwad in H.R.C. No. 69/1980 is set aside. Consequently, the petition for eviction in H.R.C. No. 69/1980 is dismissed.
In the facts and circumstances of the case, each party shall bear the costs in all the Courts.