Patna High Court
Rama Shankar Prasad And Ors. vs Sitaram Sah on 27 February, 1979
Equivalent citations: AIR1980PAT73, AIR 1980 PATNA 73, (1979) BLJ 474
JUDGMENT Hari Lal Agrawal, J.
1. This second appeal by the defendants arises out of a suit instituted by the plaintiff-respondent, for their eviction from a room of a house situated in Gandhi Market in the Town of Sitamarhi.
The plaintiff instituted the suit against the three appellants along with their father Ram Swarup Sah who was impleaded as defendant No. 4, The case of the plaintiff, as appears from the statements made in the plaint, was that the defendant-appellant No. 1 took a room of the house in question for the purpose of carrying out a ready-made cloth business in the capacity of Manager of the joint family. Eviction was sought on the ground of default in paying the monthly rentals. I am, however, not concerned with the details of the grounds of eviction as the question that falls for my determination is entirely different.
2. Written statement was filed only by defendant No. 1 and no other defendant appeared to contest the suit. Defendant No. 1 also did not controvert the above statement of the plaintiff regarding his representative capacity.
3. The trial Court decreed the suit against all the defendants and passed a decree for eviction from the suit premises and also for arrears of rent; the decree against the non-contesting defendants being ex parte.
4. An appeal was preferred by all the four defendants in the Court of appeal below. During the pendency of the appeal, defendant No. 4 namely, the father of the present appellants, who was also appellant No. 4 in this Court, died on 23-7-1974 leaving behind three sons, namely, the present appellants, as well as four daughters. The appellants took no steps for substitution of their sisters but filed an application on 8-7-1975 stating therein "that the heirs of the deceased who are in possession of the estate and are representing the same are already on the record -- his three sons who are appellants here. Hence it is necessary that the name of appellant No. 4 be expunged." On these statements they prayed for expunging the name of appellant No. 4 from the memorandum of appeal. A rejoinder was filed by the plaintiff-respondent to this petition stating therein that the said petition having been filed after the expiry of thp period of limitation without taking any step for substituting all the heirs of the deceased appellant, the appeal had abated as a whole inasmuch as the estate of the deceased also devolved on his daughter.
The Court of appeal below by its order dated 10-12-1975 took the view that the appeal abated as a whole inasmuch as the daughters of appellant No. 4 had also interest and were necessary to be impleaded in the appeal. Accordingly, the defendants have filed this appeal.
5. Learned counsel appearing in support of this appeal has raised two questions. His first contention was that after the determination of the tenancy by the plaintiff the defendants became statutory tenants and defendant No. 4 after his death did not leave any interest which could devolve or be inherited by his heirs. His second contention was that in any view of the matter, the estate of appellant No. 4 was being sufficiently represented by his three sons, and, therefore, the question of abatement did not arise and accordingly the Court of appeal below had committed an apparent error of law in holding that the appeal abated as a whole, as the interest of appellant No. 4 was not fully represented by the remaining appellants on the record.
6. The first contention is based upon a decision of the Supreme Court in the case of J.C. Chatterjee v. Sri Kishan Tandon (AIR 1972 SC 2526). That was case arising out of the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act. In that case also, during the pendency of the second appeal in the High Court by the landlord, the tenant had died and on his death his widow and other heirs were substituted. When the appeal was taken up for hearing a contention was advanced on behalf of the landlord "that the deceased after the determination of the tenancy was only a statutory tenant and under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the protection granted by Section 13 ..... is not available to the heirs of the tenant. As such even if it be held that the landlord had failed to prove the reasonable and bona fide requirement, which the appellant does not concede, the appellant is entitled to decree." This contention was accepted and when the matter went to the Supreme Court it was observed that when B. N. Chatterjee (the original tenant) died "he was only a statutory tenant with a personal right to remain in possession till eviction under the provisions of the Act and the heirs were incapable of inheriting the estate or interest in the tenancy." It was no doubt, held in this case that had the original tenant died before the contractual tenancy had been terminated, then the heirs would have inherited the tenancy and the rent would have been payable by them. In this case the Bench was constituted of only two learned Judges of the Supreme Court. This stand was taken by the landlord to defeat the tenant's appeal in an entirely different context. Nonetheless since the point was argued, it has to be answered.
A similar question, however, again fell for consideration before the Supreme Court in the case of Damadilal v. Parashram (AIR 1976 SC 2229), This time the matter arose out of M. P. Accommodation Control Act. which was considered by a Bench consisting of three learned Judges of that Court. The case of, J. C. Chatterjee and an earlier case, namely, Anand Nivas Private Ltd v. Anandji Kalyanji Pedhi (AIR 1965 SC 414) on which J.C. Chatterjee's case was based, were considered by the Supreme Court. In this case the suit was instituted against two tenants who filed a second appeal in the Rajasthan High Court and during its pendency both of them died. The heirs of one of the appellants were substituted, but when a similar application was made for substitution of the heirs of the other appellant, the landlord raised an objection that the appeal had abated as a consequence of the death of the defendants, as they were "merely statutory tenants and their right to resist ejectment on the basis of Madhya Pradesh Accommodation Control Act was merely a personal right" which was not heritable and had "not devolved upon their heirs." The High Court overruled the objection and allowed the substitution and on final hearing also allowed the appeal. The landlord then went to the Supreme Court and raised the same said question regarding the abatement of the appeal in the High Court, on the basis of two earlier decisions of that Court mentioned above.
The Supreme Court considered both the judgments at some length and observed that the term 'statutory tenancy' was borrowed from English Rents Acts and Courts in this country have sometimes borrowed along with the expression certain notions regarding such tenancy from the decisions of the English Courts. Proceeding further, it was observed:
"We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute. The concept of a statutory tenant having no estate or property in the premises which he occupies is derived from the provisions of the English Rents Act.........Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject-matter of the tenancy, and heritability is an incident of the tenancy. It cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation ?
The definition of the word "tenant" in the M. P. Act was similar to that as in the Bihar Act, as there also 'tenant' inter alia, was defined to include "any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act." In that Act by express words a person against whom any order or decree for eviction had been made, has been excluded from the definition of 'tenant but in the Bihar Act' tenant has been defined to mean ''any person by whom, or on whose account, rent is payable for a building and includes -- (i) a person continuing in possession after the termination of the tenancy in his favour, (ii)......".
It was very clearly ruled by the Supreme Court in this case that the predecessors-in-interest of the respondents had heritable interest in the premises and consequently the respondents had the right to prosecute the appeal in the High Court.
In view of the above authoritative decision of the Supreme Court, the first contention advanced by the learned counsel for the appellants must be rejected and it be held that a tenant under the Bihar Act on his death leaves behind a heritable interest and so appellant No. 4 in the Court of appeal below, left behind him an estate which was heritable by his heirs and legal representatives.
7. The answer to the first question at once takes us to the consideration of the second question, namely, the effect of the failure to substitute the daughters of deceased appellant No. 4 (in the Court of appeal below) who admittedly were the legal representatives of the deceased.
I have deliberately stated the plaintiff's case as set out in the plaint, keeping this question in my mind. The plaintiff had very clearly stated that it was defendant No. 1 who had taken the house on rent from the plaintiff in his capacity as Manager of the family for carrying out the family business. On the death of appellant No. 4 (in the lower Appellate Court) the remaining three appellants had said in their petition that the estate of the deceased was represented by his three sons, namely, the appellants' in this second appeal, who were in possession of his estate and were already on the record.
It has to be seen as to whether in view of these averments, i.e., the averment by the plaintiff himself in the plaint and the position taken by the appellants in the Court of appeal below regarding their representative character to represent the entire estate of the deceased appellant, whether the absence of the daughters of the deceased would have any consequential bearing. In this regard a few cases have to be noticed. I shall refer to two Supreme Court cases, namely, Dolai Maliko v, Krushna Chandra Patnaik (AIR 1067 SC 49) and Mahabir Prasad v. Jage Ram (AIR 197i SC 742) and two cases of this Court viz., Harbans Singh v. Rajpaltan Singh (AIR 1975 Pat 184) and Bishnudeo Rai v. Chandrawati Kuer (AIR 1976 Pat 352); judgments in both the Patna cases having been delivered by myself.
The first case of the Supreme Court was under Order 22, Rule 3 of the Civil P.C. and the second case was under Order 22, Rule 4 of the Code. In the first case one of the appellants was dead and some of his heirs applied for bringing themselves on record as his legal representatives. When an objection was taken regarding the absence of the other heirs and legal representatives, and on that ground an argument that the appeal had abated, was pressed, it was observed by the Supreme Court that unless there was fraud or collusion or their were other circumstances which indicated that there has ,not been a lair or real trial or that against the heirs there was a special case which was not and could not be tried in the proceeding, there was no reason why the heirs who had applied for being brought on the record, could not be allowed to represent the entire estate, including the heirs not brought on record.
In the second case of the Supreme Court, one of the legal representatives of the deceased respondents was already on record and no step for substitution of the other heirs was taken. When an objection was taken, it was held that where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it was only necessary that he should be described by an appropriate application made in that behalf that he is also on the record as an heir and legal representative. It was further made clear that even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceeding will not abate.
In Harbans Singh's case one of the respondents had died and his son who was one of the legal representatives was already on record in his own right. In the other case, namely, in Bishnudeo Rai's case, one of the respondents had died while the matter was pending in the Court of appeal below. Two of her sons were already on the record, but no step for substitution was taken for the remaining heirs. In both the above cases, I held that the appeals did not abate and could successfully proceed although steps for bringing the left out heirs were not taken, unless these heirs might have a different and independent case than that of the heirs on the record.
8. Applying the ratio of the above cases to the facts of the present case, it has got to be held that apart from the fact that defendant No. 1 (appellant No. 1) who was granted the tenancy, is already there on the record, and who alone contested the suit, the deceased not even having filed any written statement, the estate of the deceased is fully represented by the appellants, namely, all his sons on the record. Nothing has been shown to me that the daughters might have any independent or different case than the heirs on the record,
9. In accord with the view taken in the above decisions, I would hold that the Court of appeal below has committed an apparent error of law in dismissing the title appeal on the ground that it abated as a whole. I would accordingly set aside the judgment and decree of the Court of appeal below allow this appeal and remand the matter back to that Court to re-hear the appeal on its merits. In the circumstances, however, I shall make no order as to costs.