Himachal Pradesh High Court
_______________________________________________________ vs Smt. Sudarshana Devi & Others on 27 April, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Revision No.67 of 2021
Judgment reserved on: 12.04.2023
.
Date of Decision:27.04.2023
_______________________________________________________
M/s Super Sanitation & Anr. .......Petitioners
Versus
Smt. Sudarshana Devi & others ... Respondents
_______________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioners: Mr. G.C.Gupta, Senior Advocate with Ms.
Meera Devi, Advocate.
For the Respondents: Mr. Ashok Sood, Senior Advocate with Mr.
Khem Raj, Advocate, for respondent No.1.
___________________________________________________________
Sandeep Sharma, Judge:
Instant Civil Revision Petition filed under Section 24(5) of the Himachal Pradesh Urban Rent Control Act,1987( hereinafter, 'Act) lays challenge to order dated 10.09.2020 passed by Rent Controller, Court No.2, Shimla, Himachal Pradesh, whereby an application under Order 22 Rule 3 read with Section 151 CPC, having been filed by respondent, came to be allowed.
2. Precisely, the facts of the case, as emerge from the record are that late Smt. Sudarshna Devi claiming herself to be landlord of shop No.52, The Mall Shimla, filed a petition under Section 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 28/04/2023 20:37:45 :::CIS 214 of the Act, seeking ejectment of the petitioners herein(hereinafter, 'tenants) and proforma-respondents No.2 to 4 from the premises known as shop No. 52, The Mall Shimla on the ground that premises .
were bona-fidely required by her for providing accommodation to her son Rakesh Kumar Goel, who intends to start practice as consulting engineer in the shop in occupation of the tenants. Before aforesaid petition could be decided on its own merit, Smt. Sudarshna Devi expired on 24.03.2019 and as such, Sh. Rakesh Kumar Goel, son of late Smt. Sudarshna Devi, filed an application under Order 22 Rule 3 read with Section 151 CPC, praying therein for his substitution in place of original landlord Smt. Sudarshna Devi. Applicant Rakesh Kumar Goel averred in the application that late Smt. Sudarshna Devi before her death, executed a Will dated 24.12.2011, thereby bequeathing demised premises in his favour. Applicant further pleaded that he being legal representative of deceased Smt. Sudarshna Devi is entitled to prosecute the case. Applicant further averred that her deceased mother had filed petition for eviction on the ground of bonafide requirement for settling her son i.e. applicant, but now after her death, bonafide need of the applicant is in his own right.
3. Aforesaid prayer made on behalf of the applicant, as named hereinabove, came to be resisted on behalf of petitioners and proforma-respondents No.2 to 4 on the ground that Smt. Sudarshna ::: Downloaded on - 28/04/2023 20:37:45 :::CIS 3 Devi had not executed any Will in favour of the applicant and Will propounded by him is false and fabricated. They also averred in the reply that Will has been created merely with an oblique motive to oust .
the petitioners from the demised premises. Petitioners further averred in the reply that petition has already been abated on account of death of original landlord Smt. Sudarshna Devi. It also came to be denied on behalf of the petitioners and proforma-respondents No.2 to 4 that need of the deceased was bonafide and they averred that applicant has no right to be arrayed as legal representatives of the original landlord because requirement of applicant has ceased to exist with the death of original landlord and the petition has become infructuous.
Apart from above, petitioners and proforma-respondents No.2 to 4 also averred in the reply to the application that under proviso to Section 14(6) of the Act, no petition can be filed within five years from the date of acquisition of interest in the premises by the landlord.
4. Learned trial Court on the basis aforesaid pleadings adduced on record allowed the application for bringing on record the LRs of deceased Smt. Sudarshna Devi and vide order impugned in the instant proceedings ordered for substitution of applicant Rakesh Kumar Goel in place of late Smt. Sudarshna Devi. In the aforesaid background, petitioners and proforma respondent Nos. 2 to 4 have approached this Court in the instant proceedings, praying therein to ::: Downloaded on - 28/04/2023 20:37:45 :::CIS 4 set-aside aforesaid order passed by learned Rent Controller, Court No.2, Shimla.
5. Having heard learned counsel representing the parties .
and perused the material available on record vis-à-vis reasoning assigned in the order impugned in the instant proceedings passed by Rent Controller while allowing application under Order 22 Rule 3 read with Section 151 CPC, this Court finds no illegality and infirmity in the same and as such, same does not call for any interference.
6. It is not in dispute that original landlord Smt. Sudarshna Devi had filed eviction petition on the ground that premises in question bona fidely required by her for providing accommodation to her son Rakesh Kumar Goel, who intends to start practice as consulting engineer in the shop in question. Since original landlord Smt. Sudarshna Devi expired during the pendency of eviction petition, her son Sh. Rakesh Kumar Goel filed an application under Order 22 Rule 3 CPC for his substitution in place of deceased Smt. Sudarshna Devi. Applicant set up a case that by valid Will dated 24.12.2011, executed by Smt. Sudarshna Devi, he has become owner of the demised premises and as such, required to be substituted in place of original landlord Smt. Sudarshna Devi. Though, inquiry in terms of Order 22 Rule 5 CPC ought to have been conducted before considering prayer made in the application, especially to ascertain ::: Downloaded on - 28/04/2023 20:37:45 :::CIS 5 whether there exists any dispute between the legal representatives of the deceased qua the property so bequeathed, but since in the case at hand, Will clearly reveals that it is not the applicant namely Rakesh .
Kumar Goel alone, who has been made beneficiary of estate of the deceased Smt. Sudarshna Devi, but also the brother of the applicant and as such, learned court below rightly concluded that knowledge of the Will can be attributed to other legal representative as well as who have not come forward to agitate the same. Since, no cogent and convincing evidence ever came to be led on record by the non-
applicants/respondents to demonstrate that Will executed by Smt. Sudarshna Devi is fabricated and has been made under coercion, no illegality can be said to have been committed by learned Court below while considering the applicant Rakesh Kumar Goel to be one of the legal representative of original landlord Smt. Sudarshna Devi, owner of the demised premises. It is not in dispute that original landlord Smt. Sudarshna Devi had filed petition on the ground that she bondafidely required the premises for providing accommodation to her son i.e. Rakesh Kumar Goel, but question which needs to be determined in the instant proceedings is "whether aforesaid ground of bona fide requirement of premises ceased to exist after the death of original landlord Smt. Sudarshna Devi or not?."
::: Downloaded on - 28/04/2023 20:37:45 :::CIS 67. Mr. G.C.Gupta, learned Senior counsel representing the petitioners-tenants and proforma respondents, vehemently argued that ground of bonafide requirement as raised by original landlord .
ceased to exist after the death of original landlord and as such, there was no occasion for the Court below to allow the application having been filed by the applicant Rakesh Kumar Goel to substitute him in place of deceased Smt. Sudarshna Devi. He further submitted that after death of original landlord Smt. Sudarshna Devi, eviction petition stood abated and as such, otherwise there was no occasion for the Court below to entertain the application, if any, filed by the applicant Rakesh Kumar Goel for his substitution in place of deceased Smt. Sudarshna Devi.
8. While placing reliance upon the judgment passed by Co-
ordinate bench of this Court in case titled Brijesh Kumar Sood and another versus Brig. K.K.Sood (retd.) and another, 2012(2) Shim.
LC 648, Mr. Gupta, learned Senior Counsel vehemently argued that transferee landlord though can continue to maintain petition on ground of non-payment of arrears of rent, subletting of premises, but definitely he cannot continue proceedings as far as bona fide requirement for building and rebuilding of suit premises is concerned.
In support of his aforesaid submission, he also placed reliance upon the following judgments:-
::: Downloaded on - 28/04/2023 20:37:45 :::CIS 7(i) AIR 1988 Supreme Court 506, titled M.Veerappa versus Evelyn Sequeira and others.
(ii) AIR 1968 Supreme Court 410, titled Lakshmi Narain Agarwal versus The State Transport Authority, U.P and another.
.
(iii) (2001) 8 Supreme Court Cases 758, titled Chitranjan Burman versus Om Prakash Bajoria and others.
(iv) AIR 1958 Supreme Court 253, titled Syedna Taher Saifuddin Saheb vs. State of Bombay.
9. Lastly, Mr. Gupta, argued that learned Rent Controller below while allowing the application filed by applicant Rakesh Kumar Goel wrongly placed reliance upon the judgment passed by this Court in Civil Revision No.124 of 2019 dated 23.09.2019, titled M/s Rikhi Ram Amar Nath versus Vikas Sood and another, wherein this Court having taken note of the judgment passed by Hon'ble Apex Court in Shakuntla Bai and others versus Narayan Das and others, AIR 2004 SC 3484, held that even if landlord dies during pendency of the petition, bonafide need cannot be said to have lapsed. Mr. Gupta, submitted that though legal representative, if any, of deceased landlord can be arrayed as petitioner in place of deceased petitioner, but for limited purpose i.e. for continuation of the proceedings. He submitted that in no circumstance petition filed by original petitioner for eviction on the ground of bonafide requirement can be allowed to continue at the behest of LRs, if any, of original landlord because bonafide requirement, if any, ceased to exist with the death of original landlord.
::: Downloaded on - 28/04/2023 20:37:45 :::CIS 810. While refuting aforesaid submissions made by learned Senior Counsel representing the petitioners, Mr. Ashok Sood, learned Senior Counsel representing the respondent vehemently argued that .
there is no illegality and infirmity in the order impugned in the instant proceedings and as such, no interference is called for. Mr. Sood, submitted that bonafide requirement, if any, of deceased original landlord continues to exist and as such, Court below rightly allowed the application filed by the legal representative of deceased landlord.
He submitted that bare perusal of eviction petition filed by original landlord Smt. Sudarshna Devi reveals that she had filed petition on the ground that shop/premises were bondafidely required by her for providing accommodation to her son, who intends to start practice as consulting engineer in the shop. He submitted that bonafide requirement still exists because admittedly Rakesh Kumar Goel needs accommodation for starting his practice as consulting engineer.
He submitted that bonafide need, if any, of landlord is to be seen on the date of petition and definitely not on the date of application, if any, filed by LRs of the original landlord for substitution. In support of his aforesaid contention, he invited attention of this Court to judgment passed by Hon'ble Apex Court in Shakuntla Bai versus Narayan Das, AIR 2004 SC 3484. To substantiate his aforesaid arguments, he also placed reliance upon the following judgments:-
::: Downloaded on - 28/04/2023 20:37:45 :::CIS 9(i) AIR 1976 Supreme Court 2358, titled Shantilal Thakordas and others vs. Chimanlal Maganlal Telwala.
(ii) (2008) 8 Supreme Court Cases 521, titled Jaladi Suguna(deceased) through LRs. versus Satya .
Sai Central Trust and others.
(iii) (2002) 5 Supreme Court Cases 397, titled Joginder Pal vs. Naval Kishore Behal.
(iv) (1997) 4 Supreme Court Cases 413, titled Kamleshwar Prasad vs. Pradumanju Agarwal (dead) by LRs. (v) (2001) 2 Supreme Court Cases 604, tilted Gaya Prasad vs. Pradeep Srivastava. 11.
Having heard learned counsel for the parties and perused material available on record, this Court finds that late Smt. Sudarshna Devi had filed eviction petition under Section 14 of the Act on the ground that premises in question are bondafidely required by her for providing accommodation to her son Sh. Rakesh Kumar Goel, but before such prayer of her could be considered and decided by the competent Court of law, she passed away. After her death, Sh.
Rakesh Kumar Goel, son of deceased landlord Smt. Sudarshna Devi, filed an application under relevant provision of law, seeking his substitution in place of deceased original landlord.
12. Though, petitioners-tenants and proforma respondents attempted to carve out a case that Will setup by applicant Rakesh Kumar Goel, allegedly executed by late Smt. Sudarshna Devi, thereby bequeathing premises in question in favour of Rakesh Kumar Goel is ::: Downloaded on - 28/04/2023 20:37:45 :::CIS 10 fabricated, but since no cogent and convincing evidence ever came to be led on record to prove fabrication, if any, of Will, learned Court below rightly rejected the plea of fraud setup by petitioners and .
proforma respondents. Apart from above, there is nothing on record that other recipients/beneficiaries of the Will executed by Smt. Sudarshna Devi ever disputed contents of the Will, rather they all continue to reap the benefit of the property fell in their shares in terms of will executed by Smt. Sudarshna Devi.
13. Leaving everything aside, petitioners and proforma-
respondents never succeeded in proving fact, if any, that applicant Rakesh Kumar Goel is/was not the legal representative of Smt. Sudarshna Devi and as such, no illegality can be said to have been committed by Court below while considering the applicant Rakesh Kumar Goel to be legal representative of deceased Smt. Sudarshna Devi. Question, which needs to be determined in the case at hand is "whether plea of bonafide requirement as raised by original landlord at the time of filing of eviction petition under Section 14 of the Act, continues to exist after death of original landlord Smt. Sudarshna Devi or same ceased to exist"?.
14. Mr. G.C.Gupta, learned Senior counsel representing the petitioners, vehemently argued that plea of bonafide requirement ceased to exist with the death of original landlord Smt. Sudarshna ::: Downloaded on - 28/04/2023 20:37:45 :::CIS 11 Devi. In support of his aforesaid plea, he placed heavy reliance upon the judgment passed by Co-ordinate bench of this Court in Brijesh Kumar Sood's case (supra), wherein Co-ordinate bench of this Court .
though held that transferee landlord can continue to maintain petition on ground of non-payment of arrears of rent, subletting of premises, but he/she cannot continue proceedings as far as bona fide requirement for building and rebuilding of suit premises is concerned.
15. Having carefully perused aforesaid judgment in its entirety, this Court is not persuaded to agree with Mr. G.C.Gupta, learned Senior Counsel representing the petitioners because facts of the case in Brijesh Kumar Sood's case(supra) were totally different to the case at hand. Moreover, in the aforesaid case, though Court held that transferee landlord cannot continue the proceedings as far as bona fide requirement for building and rebuilding of the suit premises is concerned, but nowhere held that plea of bonafide requirement of premises ceases to exist after the death of the original landlord. Relevant paras No.2,6 and 33 of aforesaid judgment are as under:-
"2. Material facts necessary for the adjudication of this petition are that respondent No.1 (hereinafter referred to as transferor landlord) filed petition under section 14 of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as 'the Act' for brevity sake) against the petitioners/tenants (hereinafter referred to as 'tenants' for convenience sake) on the grounds of non-payment of arrears of rent, tenant has acquired premises which are reasonably sufficient for him and his family requirement, sub-letting and lastly on the ground that premises under the occupation of tenant No.1, namely, Brijesh Kumar ::: Downloaded on - 28/04/2023 20:37:45 :::CIS 12 Sood are bona fide required for carrying out construction of the building and rebuilding. Respondent No.2 (hereinafter referred to as 'transferee landlord') moved an application under order 1 rule 10 of the Code of Civil Procedure for impleading him as party in the main petition, i.e. 51/2 of 2001. According to the averments contained in the application preferred by transferee .
landlord, he has purchased the premises in question vide sale deed dated 25.9.2004. According to him, he has stepped into the shoes of transferor landlord. The tenant filed reply to the same. The Rent Controller vide order dated 9.8.2005, allowed the application preferred under order 1 rule 10 of the Code of Civil Procedure. The tenants preferred an appeal before the learned Appellate Authority. The Appellate Authority dismissed the appeal on 8.5.2007. Thereafter, tenants approached this Court. This Court dismissed the petition vide order dated 19.10.2010. However, while dismissing the petition, the Court had observed that the tenants had right to file revision against the impugned order dated 9.8.2005. It is in these circumstances, the present petition has been preferred against the order dated 9.8.2005.
6. In the instant case, the transferee landlord has moved an application under order 1 rule 10 of the Code of Civil Procedure. The Court is of the view that the transferee landlord should have moved application under section 146 or under order 22 rule 10 of the Code of Civil Procedure. However, in the interest of justice, an application under order 1 rule 10 of the Code of Civil Procedure preferred by transferee landlord will be deemed to have been moved under section 146 or under order 22 rule 10 of the Code of Civil Procedure.
33. Accordingly, in view of the observations and discussions made hereinabove, the petition is disposed of in the following manner:
It is held that the transferee landlord can continue to maintain the petition on the grounds of non-payment of arrears of rent, sub-letting of premises, the tenant has acquired premises, which are reasonably sufficient for tenant and his family members. The transferee landlord cannot continue the proceedings as far as the bona fide requirement for building and rebuilding of the suit premises is concerned".
16. Question with regard to existence of bonafide need of landlord after his/her death came to be examined by Hon'ble Apex Court in case titled Shakuntala Bai and others versus Narayan Das and others, AIR 2004 Supreme Court 3484, which has been ::: Downloaded on - 28/04/2023 20:37:45 :::CIS 13 otherwise taken note by this Court in judgment dated 23rd September, 2019 titled as M/s Rikhi Ram Amar Nath versus Shri Vikas Sood and another passed in Civil Revision No.124 of 2019, which has .
been relied upon by learned Court below while passing impugned order. In the aforesaid judgment, Hon'ble Apex Court has categorically held that bonafide need of the landlord has to be examined as on the date of institution of proceedings and if a decree for eviction is passed, the death of the landlord during the pendency of the appeal preferred by the tenant will make no difference as his heirs are fully entitled to defend the estate. At this stage, it would be profitable to reproduce para No.11 of the aforesaid judgment herein:-
"11. In Shantilal Thakordas v. Chimanlal Maganlal Telwala 1976 (4) SCC 417, a larger Bench overruled the decision rendered in Phool Rani v. Naubat Rai Ahluwalia (supra) in so far it held that the requirement of the occupation of the members of the family of the original landlord was his personal requirement and ceased to be the requirement of the members of his family on his death. The court took the view that after the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and occupation of the other members of the family. Thus, this decision held that the substituted heirs of the deceased landlord were entitled to maintain the suit for eviction of the tenant. The ratio of this decision by larger Bench does not in any manner affect the view expressed in Phool Rani (supra) that where the death of the landlord occurs after a decree for possession has been passed in his favour, his legal representatives are entitled to defend further proceedings like an appeal and the benefit accrued to them under the decree. In fact, the ratio of Shantilal Thakordas (supra) would reinforce the aforesaid view. There are several decisions of this Court on the same line. In Kamleshwar Prasad v. Pradumanju Agarwal 1997(4) SCC 413 it was held that the need of the landlord for premises in question must exist on the date of application for eviction, which is the crucial date and it is on the said date the tenant incurred the liability of being evicted therefrom. Even if the landlord died during the pendency of the ::: Downloaded on - 28/04/2023 20:37:45 :::CIS 14 writ petition in the High Court, the bona fide need cannot be said to have lapsed as the business in question can be carried on by his widow or any other son. In Gaya Prasad v. Pradeep Srivastava 2001 (2) SCC 604 it was held that the crucial date for deciding as to the bonafides of requirement of landlord is the date of his application for eviction. Here the landlord had instituted .
eviction proceedings for the bona fide requirement of his son who wanted to start a clinic. The litigation continued for a long period and during this period the son joined Provincial Medical Service and was posted at different places. The subsequent event i.e. the joining of the service by the son was not taken into consideration on the ground that the crucial date was the date of filing of the eviction petition. Similar view has been taken in G.C. Kapoor v. Nand Kumar Bhasin 2002 (1) SCC 610. Therefore, the legal position is well settled that the bona fide need of the landlord has to be examined as on the date of institution of proceedings and if a decree for eviction is passed, the death of the landlord during the pendency of the appeal preferred by the tenant will make no difference as his heirs are fully entitled to defend the estate".
17. In D.Sasi Kumar vs. Soundararajan, (2019)9 Supreme Court Cases 282, Hon'ble Apex Court again reiterated that bonafide requirement of landlord is to be seen on the date of institution of case.
Relevant paras No.11 and 12 of aforesaid judgment are as under:-
11. It is no doubt true that as observed by the High Court the plan for construction and the financial capacity to construct has not been placed as evidence. However, as already indicated above, the nature of the requirement as stated by the landlord would be for running a garment shop which in any event could be run in the premises as it exists with minor alterations though the desire of the landlord is also to demolish and reconstruct.
Therefore, in that circumstance the mere nonproduction of the approved plan or the documents to indicate financial capacity at this juncture cannot be held fatal in the instant facts. That apart as indicated above, the need of the landlord while being examined has been weighed in the background of the fact that the tenant owns two other premises and no hardship will be caused. Though the High Court has in that regard also recorded that no documentary evidence is placed, the fact of possession of alternate premises has been admitted by the tenant in his cross examination. There can be no better proof than admission.
12. Further the High Court has also erroneously arrived at the conclusion that the bonafide occupation as sought should be not only on the date of the petition but it should continue to be ::: Downloaded on - 28/04/2023 20:37:45 :::CIS 15 there on the date of final adjudication of rights. Firstly, there is no material on record to indicate that the need as pleaded at the time of filing the petition does not subsist at this point. Even otherwise such conclusion cannot be reached, when it cannot be lost sight that the very judicial process consumes a long period and because of the delay in the process if the benefit is .
declined it would only encourage the tenants to protract the litigation so as to defeat the right. In the instant case it is noticed that the petition filed by the landlord is of the year 2004 which was disposed of by the Rent Controller only in the year 2011. The appeal was thereafter disposed of by the Appellate Authority in the year 2013. The High Court had itself taken time to dispose of the Revision Petition, only on 06.03.2017. The entire delay cannot be attributed to the landlord and deny the relief. If as on the date of filing the petition the requirement subsists and it is proved, the same would be sufficient irrespective of the time lapse in the judicial process coming to an end. This Court in the case of Gaya Prasad vs. Pradeep Srivastava, (2001) 2 SCC 604 has held that the landlord should not be penalised for the slowness of the legal system and the crucial date for deciding the bonafide requirement of landlord is the date of application for eviction, which we hereby reiterate.
18. Similar view has been taken by Co-ordinate bench of this Court in case titled Prem Lal versus Soma Devi, 2020(1) RCR(Rent) 371, wherein it has been held as under:-
"22. After death of landlord Anant Ram, his wife has been substituted as landlord/landlady in his place. Section 2(d) of the Act defines that "landlord" means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf, or for the benefit, of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorized, a specified landlord, and every person from time to time deriving title under a landlord. Wife being a Class-1 legal heir is definitely a person who is entitled to receive rent in respect of building earlier owned by her husband. She is entitled to pursue the eviction petition after death of her husband either singly or jointly with other persons claiming status of landlord, unless her status is disputed by someone else, including any other persons claiming himself to be landlord or by the tenant. In present case wife of landlord was substituted in his place after his death during pendency of petition before the Rent Controller and such substitution or her status as landlady was never ::: Downloaded on - 28/04/2023 20:37:45 :::CIS 16 disputed by tenant, rather her status stands admitted by him as in reply to the application filed for substitution of deceased landlord, it was contended that she was not only legal heir of deceased landlord, which means that she was admitted to be one of legal heirs of landlord. But it is also a fact that no other person has come forward to claim himself .
to be legal heir of deceased landlord in addition to his wife and tenant has also not brought on record any other material so as to establish that she is not only person who is entitled to be substituted in place of landlord. Therefore, on this issue also plea of tenant is not sustainable."
19. In yet another judgment dated 23.06.2017 passed by Co-
ordinate Bench of this Court in case titled Raghubeer Singh versus Hargopal Sood and others, 2018(1) RCR (Rent) 387, has held that a cause of action is not prolonged by mere transfer of the title. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings. It would be profitable to reproduce para No.7 of aforesaid judgment hereinbelow:-
"7. Under Rule 10, Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against persons upon whom such interest has devolved and this entitles, the person who has acquired an interest in the subject matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the Court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet, as pointed out by their Lordships of the Judicial Committee in Moti Lal v. Karab- ud-Din, (1898) ILR 25 Cal 179, he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. It is also plain that if the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit, for, as Lord Kingsdown of the Judicial Committee said in Prannath v. Rookea Begum,(1851-59) 7 Moo Ind App 323, a cause of action is not prolonged by mere ::: Downloaded on - 28/04/2023 20:37:45 :::CIS 17 transfer of the title. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings."
20. Applicant, namely Rakesh Kumar Goel having stepped .
into the shoes of the original landlord Smt. Sudarshna Devi and on the basis of Will, as detailed hereinabove, rightly came to be termed to be her legal representative. Since original landlord Smt. Sudarshna Devi had filed eviction petition on the ground that she bondafidely required demised premises for providing accommodation to her son Rakesh Kumar Goel, bonafide requirement, as detailed hereinabove, cannot be said to have ceased to exist with the death of Smt. Sudarshna Devi because the person for whom original landlord wanted to have premises is not only alive but he also requires those premises for his bonafide use. No doubt, LRs, if any, of original landlord can maintain separate petition on the ground of bonafide requirement but since such bonafide requirement never ceased to exist with the death the original landlord, there is otherwise no requirement, if any, for legal representative of deceased landlord to file separate proceedings.
21. Though, Mr. G.C.Gupta, learned Senior counsel representing the petitioners vehemently argued that the transferee landlord cannot continue with the proceedings on the ground that premises are required bondafidely for building and rebuilding because it is the personal right of the landlord, but as has been ::: Downloaded on - 28/04/2023 20:37:45 :::CIS 18 discussed hereinabove and has been further ruled by Hon'ble Apex Court in the judgments, as detailed hereinabove that bonafide need of the landlord is to be examined on the date of institution of the .
proceedings and not on the date of death of landlord. Since in the case at hand, plea of bonafide requirement of demised premises was setup by original landlord for her son prior to her death and the son for whom such premises were bondafidely required is alive and he does not have any other premises to settle or to setup his business, no illegality can be said to have been committed by learned Court below while ordering impleadment of applicant Sh. Rakesh Kumar Goel in place of original landlord Smt. Sudarshna Devi.
22. Moreover, this Court finds that vide impugned order though learned Court below brushed aside the plea set up by the petitioners and proforma respondents that bonafide requirement of landlord ceased to exist on account of her death, but while permitting Sh. Rakesh Kumar Goel to be substituted in place of original landlord Smt. Sudarshna Devi categorically recorded in the order that he has right to pursue the present petition, meaning thereby question with regard to correctness and genuineness of bonafide requirement, if any, of the applicant, who came to be substituted in place of original landlord shall be determined on the basis of totality of evidence led on record by the respective parties to the lis. Judgments pressed ::: Downloaded on - 28/04/2023 20:37:45 :::CIS 19 into service by learned Senior counsel representing the petitioner as detailed in para-8 of the instant judgment have no application in the case at hand but even otherwise these are not required to be taken .
note of in light of law laid down by Hon'ble Apex Court in Shakuntala Bai & Raghubeer Singh' cases (supra).
23. Consequently, in view of the detailed discussion made hereinabove, this Court finds no merit in the present petition and accordingly same is dismissed being devoid of any merit. Pending applications, if any, also stand disposed of.
24. Learned counsel representing the parties undertake to cause presence of their respective clients before the Court below on 8.5.2023, enabling it to proceed with the matter. Since matter is hanging fire for long, this Court hopes and trusts that Court below would make all out efforts to conclude the trial expeditiously, preferably within a period of three months.
(Sandeep Sharma), Judge th 27 April, 2023 (shankar) ::: Downloaded on - 28/04/2023 20:37:45 :::CIS