Yamuna Das Sarda @ Jamuna Das Sarda vs Smt. Rita Lal & Others on 24 February, 2021

[Cites 23, Cited by 0]

Jharkhand High Court

Yamuna Das Sarda @ Jamuna Das Sarda vs Smt. Rita Lal & Others on 24 February, 2021

Bench: Kailash Prasad Deo

                                  1



IN THE HIGH COURT OF JHARKHAND AT RANCHI
              (Civil Appellate Jurisdiction)
                   F.A. No. 98 of 2003
                         ........

Yamuna Das Sarda @ Jamuna Das Sarda .... ..... Appellant Versus Smt. Rita Lal & Others .... ..... Respondents CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............

For the Appellant : Mr. Shashi Shekhar Dwivedi, Sr. Advocate.

Mr. Manjul Prasad, Sr. Advocate.

Mr. A.K. Sahani, Advocate.

For the Respondents : Mr. Prashant Pallav, Advocate.

........

00/24.02.2021.

Heard, learned Shashi Shekhar Dwivedi, Senior counsel assisted by senior counsel, Mr. Manjul Prasad and learned counsel Mr. A.K. Sahani, on behalf of tenant / defendant / appellant and learned counsel, Mr. Prashant Pallav on behalf of landlord / plaintiff / respondent.

The fact of this case is necessary for proper appreciation of the interlocutory applications filed for substitution of the legal heirs of tenant / defendant / appellant after setting aside abatement and condoning the delay.

Title Eviction Suit No. 5/1992 has been preferred by the landlord / plaintiff / respondent for eviction of the tenant / defendant / appellant on the ground of personal necessity, default and damage. The suit was decreed in part in terms of judgment dated 29.07.2003 and decree signed on 12.08.2003 passed by Sub-Judge-VII, Ranchi. The defendant was directed to vacate and hand over vacant possession of the suit premises to the plaintiffs and pay arrears of rent amounting to Rs. 2,77,405/- within ninety days from the date of judgment, failing which the plaintiffs would be entitled to get the suit premises vacated and to realise the arrears of rent through the process of this court at the cost of the defendant.

Being aggrieved and dissatisfied with the judgment and decree of eviction, the tenant / defendant has preferred instant F.A. No. 98/2003 before this Hon'ble Court, which was heard by 2 Coordinate Bench (Mrs. Poonam Srivastava, J.) and the appeal was allowed in terms of judgment dated 20.04.2012 by setting aside the judgment and decree passed by the learned Sub-Judge-VII, Ranchi.

The landlord being plaintiff / respondent / appellant preferred Special Leave Petition (C) No. 24271/2012 before the Hon'ble Apex Court against the judgment dated 20.04.2012 passed in F.A. No. 98/2003.

Leave was granted and Civil Appeal No. 2283/2017 was instituted. Notice was issued to the tenant / defendant / appellant / respondent by the Hon'ble Apex Court. Thereafter, it transpired that sole defendant / tenant / appellant / respondent namely, Yamuna Das Sarda @ Jamuna Das Sarda has died on 18.08.2009 during pendency of the First Appeal before the Hon'ble High Court, but since no information with regard to death of appellant was given nor steps have been taken by filing substitution petition, the matter was heard by Coordinate Bench and the appeal was allowed.

Thus, the Hon'ble Apex Court passed following order on 07.02.2017 in Civil Appeal No. 2283/2017 arising out of S.L.P. (C) No. 24271/2012, which is profitably quoted here:-

"We are of the considered opinion that owing to the death of the sole appellant during pendency of the appeal before the High Court lis had passed into State of suspense. As such, no valid order on merits of appeal, in the eye of law, could have been passed by the High Court, as such, we set aside the judgment of the High Court and give liberty to the respondent to file appropriate applications, in accordance with law, for setting aside abatement, substitution and for condonation of delay before the High Court to pursue the appeal, deemed to be pending before it.

Accordingly, the appeal is allowed to the aforesaid extent."

Pursuant thereto the matter was placed before the Coordinate Bench of this Court.

Three interlocutory applications have been filed in the present F.A. No. 98/2003 by the applicant Narendra Kumar Sarda, son of Yamuna Das Sarda @ Jamuna Das Sarda, sole defendant / appellant.

I.A. No. 2685/2017 has been preferred for condonation of delay on 27.03.2017, I.A. No. 2691/2017 has been preferred under 3 Order XXII Rule 3 & 9 C.P.C. for substitution of sole appellant, Yamuna Das Sarda on 27.03.2017 and subsequently, I.A. No. 10475/2019 has been filed on 13.11.2019 as additional application in continuation of I.A. No. 2685/2017 for condonation of delay. These three interlocutory applications have been filed along with certain documents as well as applications filed before the Hon'ble Apex Court. Another supplementary affidavit to I.A. No. 2691/2017 has also been filed along with certain documents.

The landlord / plaintiff / respondent has filed counter affidavit on 13.06.2017 in I.A. No. 2691/2017 and I.A. No. 2685/2017 and other counter affidavit has been filed on 04.12.2019 in I.A. No. 10475/2019 and counter affidavit to supplementary affidavit to I.A. No. 2691/2017 has been filed on 03.02.2021. These interlocutory applications and their counter affidavits are annexed with certain documents.

The issue involved in these interlocutory applications are that Yamuna Das Sarda @ Jamuna Das Sarda died on 18.08.2009. Thereafter, First Appeal was disposed of by the Coordinate Bench of this Court on 20.04.2012, without substitution of legal heirs of the sole defendant / tenant / appellant. The matter was pointed out before the Apex Court in Civil Appeal No. 2283/2017 and thereafter the Apex Court has set aside the judgment passed by the High Court, as during pendency of the appeal before the High Court lis had passed into state of suspense and liberty was given to the respondent i.e. tenant / defendant / appellant to file appropriate application before the High Court for setting aside abatement, substitution and for condonation of delay, considering the appeal to be pending before the High Court.

Both the parties have argued at length on several dates. The submissions of learned senior counsel for the appellant / defendant / tenant is recorded hereunder:-

Learned senior counsel for the appellant/defendant(tenant), Mr. Shashi Shekhar Dwivedi has submitted that there are two agreements which have been entered into between the parties which 4 are on record. One agreement is relied upon by the plaintiffs / respondents and that is the basis of the suit, which is Exhibit-1 and another agreement that is Exhibit-H has been relied upon by the defendant/appellant.

The opening introductory lines of Exhibit-1 which may be called preamble of the documents, describes the lessor and lessee as first party and second party respectively. It is written "which expression shall wherever the context and admits be deemed to include his heirs, successors, legal representatives, assigns", meaning thereby that all the heirs of Jamuna Das Sarda including the appellant will be deemed to be the second party i.e. the lessee. When the suit was filed against Jamuna Das Sarda, all his legal heirs will be deemed to have been made party to the suit and on the death of Jamuna Das Sarda, only his name has to be deleted and substituted by the name of the appellant. There is no question of abatement in a suit filed by or against the party in representative capacity. Reference has been made of the case of Charan Singh and Another vs. Darshan Singh and Ors., reported in AIR 1975 SC

371. Para-5 of the aforesaid judgment is profitably quoted hereunder:

5. The last two points may be shortly disposed of as they have to be stated merely to be rejected. Point (2) was eventually given up as it was completely devoid of substance.

Since the suit had been filed in a representative capacity, it is clear that on the death of one of the plaintiffs it did not abate. In Raja Anand Rao v. Ramdas Daduram [AIR 1921 PC 123 :

48 IA 12 : 62 IC 737] it has been said by Lord Dunedin at p.

16:

"There was also a point that the person who originally raised the suit and got the sanction having died the suit could not go on, but there does not seem any force in that point either, it being a suit which is not prosecuted by individuals for their own interests, but as representatives of the general public."

It is plain that the second appeal did not lose its competency on the death of one of the plaintiffs-appellants. The only point which requires discussion and determination in this appeal is whether the suit filed by the plaintiffs was barred under sub- section (2) of Section 92 of the Code.

Hence, the question of abatement does not arise.

Learned Senior counsel for the appellant, Mr. Shashi Shekhar Dwivedi has further submitted that Exhibit-1, says that the deed of lease is made at Hazaribagh on this day, 24.10.1986 between Sri Pramod Bihari Lal, H/o Rita Lal, respondent (hereinafter called the first party), which expression shall, wherever the context as admits be deemed to include his heirs, successors, and legal representatives and Sri Jamuna Das Sarda, S/o Late Ganga Das Sarda, hereinafter called the second party, which expression shall wherever the context as admits be deemed to include his heirs, successors, legal representatives, assigns.

Now, during course of appeal, Sri Jamuna Das Sarda died. Therefore, while Jamuna Das Sarda being impleaded as a defendant, it means his heirs/successors and legal representatives be deemed to be impleaded. That is the definition given in the lease deed and no body can move beyond that. It has to be followed strictly. The suit was filed by Sri Pramod Bihari Lal, H/o Rita Lal (respondent herein). Thereafter, Rita Lal substituted in place of Sri Pramod Bihari Lal. Now during course of appeal, Sri Jamuna Das Sarda died and as he was a party in the representative capacity, therefore, it be deemed to mean, that his heir is also on record, according to the definition of this document. Nonetheless formal party has to be made, but since judgment was delivered by this Court and the matter went to the Hon'ble Supreme Court, then acting in spirit of this document, they substituted the present appellant as a respondent before the Supreme Court. Therefore, the suit being in the representative capacity against Jamuna Das Sarda and his heirs and successors represented by Jamuna Das Sarda, there could not have any abatement.

Now, the effect of the substitution made by the respondent / plaintiff before the Supreme Court will allure for the benefit of the suit, at all subsequent stages. On these points, learned counsel for the appellant has referred the judgment of Panna Lal Agrawala Vs. Kanhaiya Lal & others reported in AIR 1974 Patna 284. Para-6 of the aforesaid judgment is profitably quoted herein under -

6. Rule 15(1) of Order 21 of the Code of Civil Procedure reads as follows:

"Where a decree has been passed jointly in favour of more persons than one, any one or more such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased.".

The aforesaid case is exactly the same case, where the matter also went before the Supreme Court and substitution was made and then it was remanded to the appellate court i.e. High Court to proceed in the matter.

Learned Senior counsel for the appellant, Mr. Shashi Shekhar Dwivedi has further submitted that while the matter was pending before the Apex Court, the respondent/plaintiff being the appellant before the Supreme Court, never raised this issue before the Apex Court with regard to Section 2(h) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 and Explanation-II thereof.

Learned Senior counsel for the appellant, Mr. Shashi Shekhar Dwivedi has further submitted, that similar situation cropped up before the Patna High Court in the case of Baijnath Prasad Sah vs. Ramphal Sahni and Anr,, reported, AIR 1962 Pat 72 (FB) Para 52,which has been profitably quoted hereunder-

Learned senior counsel for the appellant/defendant(tenant) has thus submitted that plaintiff/respondent is not entitled to raise the issue regarding Section 2(h) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982, as the same has never been raised by the plaintiff/respondent, as such, the same shall be constructive res 7 judicata in the present matter. In support, learned senior counsel has referred the judgment passed in the case of Baijnath Prasad Sah vs. Ramphal Sahni and Anr. reported, AIR 1962 Pat 72 (FB). Para 89 and 90 of the said judgment has been profitably quoted hereunder-

89.On a review of all the decisions referred to above, I have come to the conclusion that there is no substance in the argument which Mr. Srivastava has advanced. It is immaterial whether the sale of the lands in question is void or voidable because we have to consider, at present, the consequence of the judgment-debtor not having raised the objection before the sale when lie might and ought to have ??? it. In accordance with the views which I have expressed:, I hold that the judgment-debtor is barred by the principle of constructive res judicata from raising the objection on the ground of non-saleability of the kasht lands.

90. It is also manifest that there is no admission by the decree-holders in their application for execution that the lands in question are non-saleable. Although it has been stated that they are kasht lands of the judgment-debtors, who are Mallahas by caste, the legality and construction of Section 49-M of the Bihar Tenancy Act were open to the Court to adjudicate upon. It had complete jurisdiction to decide these questions. That being so, the second line of Mr. Srivastava's argument must also be rejected. In these circumstances, there can be no doubt that the learned Additional District Judge was in error in allowing the judgment-debtor to raise the question of non-saleability of the lands, which have been sold, as he was barred by the principle of constructive res judicata from raising this objection.

There was a question of law, available to the judgment debtor, which he could have raised mainly, the non-saleability of the property that was not raised in the initial stage. Subsequently, at subsequent stage they raised this question. Then the matter came before the Court as to whether such a question can now be raised by him or it is barred by constructive res-judicata. Thereafter, 5-Judges Bench decided that now this question cannot be raised because at the very initial stage that should have been raised. Though, it is a question of law, nonetheless when it was not made at the initial stage, the same is barred by constructive res-judicata.

Now, the question with regard to Explanation-II of Section 2(h) of the Act, 1982 is concerned, Explanation-II says that if the person, who acquires by succession, the right to continue in possession after the termination of tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year and on the expiry of the period or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished.

Now, coming to the question that, whether appellant /defendant (tenant) was not financially dependent upon the deceased (Jamuna Das Sarda), that should have been pleaded by the other side in their rejoinder which has been filed, but the same has not been pleaded. Only by saying that appellant was not dependent, Explanation-II of the said Act of 1982, will not apply. Nonetheless they have filed the documents to show that there was partition agreement between Jamuna Das Sarda and the present applicant i.e. his son (Narendra Kumar Sarda) i.e. Annexure-1 to Supplementary Affidavit to I.A. No.2691 of 2017 filed by applicant/tenant which is Special Power of Attorney dated 15.10.1986, whereby Jamuna Das Sarda has appointed his sons, Sri Krishna Kumar Sarda and Sri Narendra Kumar Sarda as his lawful attorney by a registered general power of attorney in the Register of Power of Attorney, Page 53, Volume 1 bearing No.1 for 1967 in the District Sub Registrar Office at Chaibasa.

Now, the factum of partnership is evident from Annexure-5 of the supplementary affidavit filed on 28.01.2021 i.e., Certificate issued by Canara Bank dated 20.07.1989. Then Annexures-2 and 3 are the photocopies of the certificate issued under Central Sales Tax (Registration) and Turnover Rules, 1957 and Government of Jharkhand, Commercial Taxes Department, Form- JVAT 106. Annexure-4 is the balance-sheet filed before the office of Income Tax Officer, Ranchi Circle, Ranchi with regard to profit and loss account for the year ending as on 31.03.1989.

Learned Senior counsel for the appellant, Mr. Shashi Shekhar Dwivedi has further submitted, that by filing counter-affidavit, plaintiff/respondent raised two objections that the income shown in the balance-sheet, which has been annexed as Annexure-4 by the defendant/appellant/tenant, showing investment with partnership firm of M/s K. K. Trading Company [Rs.92,487.85/-], M/s Sarda Colour Lab [Rs.90,000/-], investment in shares 575 and 2nd Agricultural income of Rs.65,000/-, further by profit from M/s K. K. Trading Company - Rs.15,739.49/-, by salary Rs.9,600/-, commission - Rs.9,255/-, bank interest - Rs.150.40, thus total Rs.99,744.89/- and these documents are of the year 1989, but they have not submitted before the competent court of law prior to 25.01.2021, that M/s K. K. Trading Company started functioning since 25 years and therefore, that cannot be taken into account for any purposes.

Learned Senior counsel for the appellant, Mr. Shashi Shekhar Dwivedi has further submitted, that though these documents is of the year 1989, but the M/s K. K. Trading Company is firm of 25 years old and no objection has been raised by the plaintiff / respondent / landlord that this firm is not in operation as on today. Moreover, there was another firm also besides the firm in question, but that does not show that a firm cannot start several businesses and the same does not show that the applicant, Narendra Kumar Sarda was independent of his father, Jamuna Das Sarda at the time of his death.

Therefore, learned Senior counsel for the appellant has submitted that in absence of any document brought on record by the plaintiff/respondent/landlord, that Narendra Kumar Sarda was never dependent upon the income from the said firm in which Narendra Kumar Sarda and Jamuna Lal Sarda were partners at the time of death of Jamuna Das Sarda nor there is any specific affidavit also, therefore, the Explanation-II of Section 2(h) of the Act, 1982 has absolutely no application.

Learned counsel for the appellant has further submitted that now a separate case has been filed by the plaintiff (Rita Lal) against Narendra Kumar Sarda before the Sub Divisional Officer, Ranchi, for fixation of rent of the disputed premises, under Section 9 of the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011. Now thereby they admit, Narendra Kumar Sarda as their tenant, which means that Narendra Kumar Sarda is son and heir of Jamuna Lal Sarda for the said suit premises is admitted position between the parties.

In the case of Banwari Lal (Dead) vs. Balbir Singh reported in 2016 (1) SCC 607 at Para -10, a very lenient view has been taken in the matter of substitution and no benefit accrued to the person by not substituting the legal heirs. Para-10 of of the aforesaid judgment is profitably quoted herein under-

10. In Sital Prasad Saxena v. Union of India [(1985) 1 SCC 163] , it was observed that the rules of procedure under Order 22 CPC are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties. On sufficient cause, delay in bringing the legal representatives of the deceased party on record should be condoned. Procedure is meant only to facilitate the administration of justice and not to defeat the same. The dismissal of the second appeal by the High Court does not constitute a sound and reasonable exercise of its powers and the impugned order [Banwari Lal v. Balbir Singh, 2013 SCC OnLine Del 6406] cannot be sustained.

Learned senior counsel for the appellant has relied upon the case of Smt. Gian Devi Anand vs. Jeevan Kumar Anand and Ors.) reported in 1985(2) SCC 683 at Paras 36, 37, 38 and 39,which has been quoted herein -

36. Accordingly, we hold that if the Rent Act in question defines a tenant in substance to mean "a tenant who continues to remain in possession even after the termination of the contractual tenancy till a decree for eviction against him is passed", the tenant even after the determination of the tenancy continues to have an estate or interest in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the deceased tenant and all the rights and obligations of the 11 deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant. As the protection afforded by the Rent Act to a tenant after determination of the tenancy and to his heirs on the death of such tenant is a creation of the Act for the benefit of the tenants, it is open to the Legislature which provides for such protection to make appropriate provisions in the Act with regard to the nature and extent of the benefit and protection to be enjoyed and the manner in which the same is to be enjoyed. If the Legislature makes any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in a specified manner by any particular class of heirs of the deceased tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfilment of the condition in the manner and to the extent stipulated in the Act. The Legislature which by the Rent Act seeks to confer the benefit on the tenants and to afford protection against eviction, is perfectly competent to make appropriate provision regulating the nature of protection and the manner and extent of enjoyment of such tenancy rights after the termination of contractual tenancy of the tenant including the rights and the nature of protection of the heirs on the death of the tenant. Such appropriate provision may be made by the Legislature both with regard to the residential tenancy and commercial tenancy. It is, however, entirely for the Legislature to decide whether the Legislature will make such provision or not. In the absence of any provision regulating the right of inheritance, and the manner and extent thereof and in the absence of any condition being stipulated with regard to the devolution of tenancy rights on the heirs on the death of the tenant, the devolution of tenancy rights must necessarily be in accordance with the ordinary law of succession.

37. In the Delhi Act, the Legislature has thought it fit to make provisions regulating the right to inherit the tenancy rights in respect of residential premises. The relevant provisions are contained in Section 2(l)(iii) of the Act. With regard to the commercial premises, the Legislature in the Act under consideration has thought it fit not to make any such provision. It may be noticed that in some Rent Acts provisions regulating heritability of commercial premises, have also been made whereas in some Rent Acts no such provision either in respect of residential tenancies or commercial tenancies has been made. As in the present Act, there is no provision regulating the rights of the heirs to inherit the tenancy rights of the tenant in respect of the tenanted premises which is commercial premises, the tenancy right which is heritable devolves on the heirs under the ordinary law of 12 succession. The tenancy right of Wasti Ram, therefore, devolves on all the heirs of Wasti Ram on his death.

38. We must, therefore, hold that Wasti Ram enjoyed the status of a tenant of the premises in dispute even after determination of the contractual tenancy and notwithstanding the termination of the contractual tenancy, Wasti Ram had an estate or interest in the demised premises; and tenancy rights of Wasti Ram did not come to an end with his death but they devolved on the heirs and legal representatives of Wasti Ram. The heirs and legal representatives of Wasti Ram step into his position and they are entitled to the benefit and protection of the Act. We must, accordingly, hold that the High Court was not right in coming to the conclusion that the heirs of Wasti Ram, the so-called statutory tenant, did not have any right to remain in possession of the tenanted premises and did not enjoy any protection under the Act. It appears that the High Court passed an order for eviction against the heirs of Wasti Ram only on this ground without going into the merits of the appeal filed by the appellant in the High Court against the order of remand and also without considering the cross-objections filed in the High Court by the landlord. We, accordingly, set aside the judgment and order of the High Court and we remand the case to the High Court for decision of the appeal and the cross-objection on merits. The appeal is accordingly allowed to the extent indicated above with no order as to costs.

39. Before concluding, there is one aspect on which we consider it desirable to make certain observations. The owner of any premises, whether residential or commercial, let out to any tenant, is permitted by the Rent Control Acts to seek eviction of the tenant only on the grounds specified in the Act, entitling the landlord to evict the tenant from the premises. The restrictions on the power of the landlords in the matter of recovery of possession of the premises let out by him to a tenant have been imposed for the benefit of the tenants. Inspite of various restrictions put on the landlord's right to recover possession of the premises from a tenant, the right of the landlord to recover possession of the premises from the tenant for the bona fide need of the premises by the landlord is recognised by the Act, in case of residential premises. A landlord may let out the premises under various circumstances. Usually a landlord lets out the premises when he does not need it for own use. Circumstances may change and a situation may arise when the landlord may require the premises let out by him for his own use. It is just and proper that when the landlord requires the premises bona fide for his own use and occupation, the landlord should be entitled to recover the possession of the premises which continues to be his property 13 inspite of his letting out the same to a tenant. The Legislature in its wisdom did recognise this fact and the Legislature has provided that bona fide requirement of the landlord for his own use will be a legitimate ground under the Act for the eviction of his tenant from any residential premises. This ground is, however, confined to residential premises and is not made available in case of commercial premises. A landlord who lets out commercial premises to a tenant under certain circumstances may need bona fide the premises for his own use under changed conditions on some future date should not in fairness be deprived of his right to recover the commercial premises. Bona fide need of the landlord will stand very much on the same footing in regard to either class of premises, residential or commercial. We, therefore, suggest that Legislature may consider the advisability of making the bona fide requirement of the landlord a ground of eviction in respect of commercial premises as well.

The Learned Senior counsel for the appellant, Mr. Shashi Shekhar Dwivedi has thus submitted that under aforesaid background, the interlocutory applications may be allowed by setting aside abatement, condoning the delay and substituting the legal heir Sri Narendra Kumar Sarda in place of his father Yamuna Das Sarda @ Jamuna Das Sarda for all legal purpose.

The submissions made on behalf of the respondents are as follows:-

Learned counsel for the plaintiffs / respondents / landlord, Mr. Prashant Pallav, has submitted that his preliminary objection to the interlocutory applications filed for substitution, for setting aside abatement and for condonation of delay are as follows:-

The right to sue does not survive in favour of the applicant Narendra Kumar Sarda in terms of Explanation-II of Section 2(h) of the Jharkhand Building (Lease, Rent and Eviction) Rules, 2000, which has adopted Bihar Building (Lease, Rent and Eviction) Control Act, 1982. Explanation-II of the Act gives right to the legal heirs to be substituted in case of death of a tenant but if he is not financially dependent, then such right will be extinguished within one year from the date of death. In the present case, the original tenant died in the year 2009 and substitution petition has been moved 14 only in the year 2017, so period of one year has elapsed, therefore, right to sue does not survive in his favour unless applicant establishes that he was dependent upon his father at the time of death of his father.

Learned counsel for the respondents has submitted on the point of condonation of delay, that as a matter of fact on record Narendra Kumar Sarda, who acted as Pairvikar before the court below and before this Court, therefore, any plea for not substituting the appellant at the relevant point of time is deliberate act on his part, therefore, he cannot be given advantage of any delay, which has occurred in moving the substitution application, therefore, condonation of delay cannot be allowed.

In other words, learned counsel for the respondents has submitted that Narendra Kumar Sarda cannot take advantage of his own laches in moving an application for substitution of the original tenant after eight years of his death by substituting himself in his place.

Learned counsel for the respondents has further submitted that the interlocutory application filed for substitution by the appellant / defendant / tenant does not disclose regarding death of wife of Jamuna Das Sarda and mother of Narendra Kumar Sarda, that when she died and no document or affidavit has been brought on record supporting his claim, that he was financially dependent on the original defendant (tenant - Jamuna Das Sarda).

Learned counsel for the respondents has submitted that as per Section 101 of the Indian Evidence Act, the onus lies upon the applicant Narendra Kumar Sarda to establish that he was financially dependent upon the original tenant and he is legal heir of the original tenant. The document that has been brought on record on affidavit dated 05.01.2021, which is power of attorney. It is contended in para- 1 that :-

1. To CARRY OR MANAGE, conduct, supervise on my behalf the entire business of Processing and Manufacture of Colour Prints and for purpose use and turn to account all Capital, Credits, Stock and Property 15 employed in business.

The appellant has not brought any document on record to show that at the time of death of Jamuna Das Sarda in the year 2009, this Narendra Kumar Sarda was financially dependent upon the original tenant Jamuna Das Sarda. Therefore, in absence of any document or evidence brought on record by the appellant, this Court may take adverse inference of the same.

Learned counsel for the respondents has submitted, that so far condonation of delay is concerned, the document, which has been brought on record by the applicant Narendra Kumar Sarda, only shows with regard to his treatment from 2009-12, but no document has been brought on record, thereafter from 2012 till 2017, to explain the delay in filing the substitution petition in the year 2017, despite the fact that Narendra Kumar Sarda claims to be the pairvikar on behalf of the Jamuna Das Sarda and having knowledge of the pendency of the first appeal before this Court, as such the delay may not be condoned, as the same has not been satisfactorily explained. Accordingly, abatement may not be set aside and substitution may not be allowed.

Learned counsel for the respondents has submitted that the document, which has been brought on record, enclosed as Annexure- 4 to the supplementary affidavit dated 25.01.2021, shows that the applicant Narendra Kumar Sarda has shown a total income of Rs. 99,744.89, out of which, the income from Sarda Lab was not disclosed. Looking into the total investment that is reflected from the Income Tax Return for the year ending as on 31.03.1989, the investment under Sarda Lab was Rs. 90,000/-, whereas under M/s K.K. Trading Co. was Rs. 92,487.85, which means that the applicant was never dependent upon the income of the Sarda Colour Lab.

Learned counsel for the respondents has further submitted that the word 'dependent' has not been defined under the Act, and as such as per the Blacks Law Dictionary, the word 'Dependent" means someone who relies on another for support, one not able to exists or sustain oneself without power or aid of someone else. So, in the 16 present fact of the case, Income Tax Return (ITR) brought on record is sufficient to establish, that the applicant was never dependent on the original tenant, as there is no income reflected from Sarda Colour Lab, as all the other independent sources disclosed.

In reply to the submissions made by learned counsel for the appellants, learned counsel for the respondents has submitted that document referred as Exhibit-1 i.e., lease deed document. This document has been cited for two purposes; (i) preamble i.e. the recital portion shows that tenant includes his legal heirs, assigns and this lease deed is made at Hazaribag on this date, the 24th October, 1986 between Sri P.B. Lal, son of Sri B.B. Lal, resident of Masipirhi, P.S. and District - Hazaribag, hereinafter called as 1 st Party, which expression shall, wherever the context as admits by deemed to include his heirs, successors, and legal representatives and Sri Jamuna Das Sarda, son of Late Ganga Das Sarda at Madhu Bazar Chaibasa, Proprietor of Sarda Colour Lab, Main Road, Ranchi, hereinafter referred as Second Party.

Learned counsel for the respondents has referred to condition (1) of terms and conditions of deed of lease dated 24.10.1986 that the ground floor of the three store building situated in Holding No. D/II in Ward No. 3 of Ranchi Municipality, Ranchi having its all fixture is being let out to the 2nd party for six month, commencing from 6.3.87 to 5.9.87 on a monthly rental of Rs. 10,000/- only per month.

Learned counsel for the respondents has submitted that the suit for eviction was never filed on the basis of this lease deed (Ext.-1), rather the suit was filed on the ground of personal necessity and default in payment of rent. The lease deed (Ext. 1) has also been brought on record to establish that how the tenant has been inducted in suit premises. Since the lease deed has expired on 01.10.87, after its extension. Thereafter, the lease deed came to an end and the original tenant Jamuna Das Sarda on determination of this lease deed became month to month tenant after expiry of this lease deed. So, the submission of the applicant Narendra Kumar Sarda, that Exhibit-1, lease deed will not give him any right as legal heir to succeed in 17 terms of the lease deed. So, the principle of approbate and reprobate will come into picture and the right as a legal heir in lease deed come to end with the determination of the lease.

Learned counsel for the respondents has further submitted that the document annexed with the supplementary affidavit filed by the applicant dated 25.01.2021, is not of the subsequent year of the death of the deceased Jamuna Das Sarda, to establish that the applicant Narendra Kumar Sarda is financially dependent upon deceased Jamuna Das Sarda.

Learned counsel for the respondents has submitted that from perusal of Annexure-4, it appears that his income is not depended upon the income of M/s Sarda Colour Lab, which will be apparent from the particulars of income, rather liability shows that Rs. 90,000/- has been invested in Sarda Colour Lab, as such, he has not taken upon the income of Sarda Colour Lab, which is running in the suit premises.

Learned counsel for the respondents has placed para-52 of the Full Bench judgment passed in the case of Baijnath Prasad Sah Vs. Ram Pal Sahani & Others reported in AIR 1962 Patna 72.

52. I do not think that there is a lack of inherent jurisdiction simply because there is want of territorial jurisdiction; but I may say with respect that otherwise I entirely agree with the principles laid down in that case which I have referred to above. I may mention that the decision makes it clear, firstly, that an express or implied decision of a Court trying a suit and passing a decree on the question of saleability of a property cannot be questioned in the executing Court, and, secondly, that an objection to the saleability of a property which is not raised in the executing Court before the confirmation of sale cannot be raised thereafter. Learned counsel for the respondents has submitted that while setting aside the judgment of this Court by the Hon'ble Supreme Court in terms of order dated 07.02.2017 passed in Civil Appeal No. 2283/2017, though liberty was given to the respondents / tenant to file appropriate application, in accordance with law, for setting aside 18 abatement, substitution and for condonation of delay before the High Court to pursue the appeal, deemed to be pending before it, never take away the right of the plaintiff to argue on the point of estoppel and the statutory provisions under Section 2(h) of Jharkhand Building (Lease, Rent and Eviction) Control Act 2000. There is no estoppel against the provisions of law. The Supreme Court has never said a word about right to sue survives in favour of legal heirs of deceased respondent / tenant in view of Explanation-II of Section 2(h) of the Act.

So far judgment relied by the appellant is concerned in Charan Singh & Another Vs. Darshan Singh & Ors. reported in.AIR 1975 SC 371 on the point that right to sue survives in the case of death precisely. The judgment is not applicable as in that case suit was with regard to Section 92 of the C.P.C., where property is with regard to a public trust was in question and as such, the legal heir has remained in public trust, but the same is not applicable in the present case, which is a issue with regard to tenancy under Building Act.

So far judgment passed by the Apex Court in the case of Banwari Lal Vs. Balbir Singh reported in 2016 (1) SCC 607 is concerned, firstly this Court shall satisfy whether right to sue survives or not, if the right to sue survives in the opinion of this Court, then learned counsel agrees that in the case of substitution, liberal view may be taken for substitution of legal heirs. The issue in the Banwari Lal (Supra) was not a matter of right to Sue, rather pertaining to substitution.

So far judgment passed by the Apex Court in the case of Gian Devi Anand Vs. Jeevan Kumar and others reported in AIR 1985 SC 796 corresponding to (1985) 2 SCC 683, learned counsel for the respondents has referred to para-36 of the judgment.

Accordingly, we hold that if the Rent Act in question defines a tenant in substance to mean a tenant who continues to remain in possession even after the termination of the contractual tenancy till a decree for eviction against him is passed', the tenant even after the determination of the tenancy continues to have an estate or interest in 19 the tenanted premises and the tenancy rights both in respect of residential promises and commercial premises are heritable. The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the decreased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant. As the protection afforded by the Rent Act to a tenant after determination of the tenancy and to his heirs on the death of such tenant is a creation of the Act for the benefit of the tenants, it is open to the Legislature which provides for such protection to make appropriate provisions in the Act with regard to the nature and extent of the benefit and protection to be enjoyed and the manner in which the same is to be enjoyed. If the Legislature makes any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in a specified manner by any particular class of heirs of the deceased tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfillment of the condition in the manner and to the extent stipulated in the Act. The Legislature which by the Rent Act seeks to confer the benefit on the tenants and to afford protection against eviction, is perfectly competent to make appropriate provision regulating the nature of protection and the manner and extent of enjoyment of such tenancy rights after the termination of contractual tenancy of the tenant including the rights and the nature of protection of the heirs on the death of the tenant. Such appropriate provision may be made by the Legislature both with regard to the residential tenancy and commercial tenancy. It is, however, entirely for the Legislature to decide whether the Legislature will make such provision or not. In the absence of any provision regulating the right of inheritance, and the manner and extent thereof and in the absence of any condition being stipulated with regard to the devolution of tenancy rights on the heirs on the death of the tenant, the devolution of tenancy rights must necessarily be in accordance with the ordinary law of succession.

Learned counsel for the respondents thus submitted that in such view of the matter right to sue does not lean in favour of the Narendra Kumar Sarda under Explanation-II, Section 2(h) of Jharkhand Building (Lease, Rent and Eviction) Control Act 2000, as such I.A. may be dismissed.

Learned counsel for the respondents has replied to the argument advanced by learned counsel for the appellant with regard to fresh proceeding initiated under Section 9 of the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011 before the court of Sub Divisional Officer, Ranchi that under Section 12 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982, which is binding nature of the order of the Court on all persons in occupation of the building, as such, no indefeasible right accrues in favour of Narendra Kumar Sarda because of initiation of fresh proceeding under Section 9 of the Act, 2011.

Learned counsel for the appellant has given reply, which is as follows:-

Learned senior counsel, Mr. Shashi Shekhar Dwivedi for the appellant has submitted that the present issue is with regard to Explanation-II of Section 2(h) of the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2000 which is dependent upon two facts; first that person, who alleged that, he was not financially dependent upon the income of the deceased Jamuna Das Sarda has to prove the same and this has to be shown and proved by the plaintiff / respondent to take benefit of Explanation-II of Section 2(h) of the Act; second point is whether the issue of Explanation-II of Section 2(h) of the Act is an afterthought in the mind of the plaintiff / respondent or it is available to him from very beginning.

Even assuming that the argument of the plaintiff / respondent is correct, the effect will be then after one year of the death of the Jamuna Das Sarda and Narendra Lal Sarda is liable to be driven out of the suit premises because of fact that Narendra Lal Sarda is not a tenant of the suit premises as per the plaintiff/respondent, but here again two things are there; first that when the plaintiff / respondent/ appellant went to Apex Court in Civil Appeal, then never adjudicated this issue that Narendra Lal Sarda is not related to the suit property nor he is tenant and therefore, constructive res-judicata will apply and second even assuming the argument advanced by plaintiff/respondent that after one year of death of Jamuna Das 21 Sarda, Narendra Lal Sarda become non est in the eyes of law, but by virtue of accepting the rent from Narendra Lal Sarda, it is assumed that a tenancy has also been created between plaintiff /respondent and Narendra Lal Sarda as tenant and landlord and thus the present suit i.e. Title Eviction Suit No. 5/92 rendered infructuous and for eviction of Narendra Lal Sarda, a fresh suit is required to be filed by the plaintiff/respondent for eviction. So the argument advanced by the plaintiff / respondent is fallicious and cuts at the roots of his own case.

So far the argument advanced by learned counsel for the respondent / plaintiff on the income and liabilities, which is being advanced on the basis of Annexure-2, 3 & 4 to the Supplementary Affidavit to I.A. No. 2691/2017 is concerned, learned senior counsel for the appellant has submitted that under Hindu Law, there is presumption of jointness of the Hindu family and income of any member of the family as income of the joint family and admittedly there is no case of partition between Jamuna Das Sarda and Narendra Lal Sarda at the time of death of Jamuna Das Sarda, as such, interlocutory applications may be allowed.

After hearing learned counsel for the parties, this Court consider two aspects of the matter, whether substitution of legal heir of the sole tenant / defendant / appellant is permissible after condoning delay and setting aside abatement in the aforesaid facts and circumstances or whether Explanation-II of sub-Section 2(h) of the Building Act puts an embargo upon the court to substitute the legal heir, after one year of death of sole tenant / defendant / appellant. Both the parties have placed their facts, which has already been recorded above.

It appears that the sole tenant Yamuna Das Sarda @ Jamuna Das Sarda died during pendency of the first appeal before this Court on 18.08.2009, but the legal heir has not been substituted before this first appellate court and the first appeal was decided by a Coordinate Bench in favour of the appellant / defendant / tenant.

The matter went to the Apex Court preferred by the plaintiff / respondent / appellant / landlord and after notice it was brought on record that sole appellant has already died on 18.08.2009. Thereafter, a petition was filed by the plaintiff / respondent / appellant before the Apex Court. In the said application filed vide I.A. No. 6/2013 in Special Leave Petition No. 2427/2012, the application for condonation of delay in filing application to bring on record legal heir of the respondent, since deceased and to set aside the abatement if any has been mentioned, meaning thereby that plaintiff / respondent / appellant has himself prayed for substitution of the legal heir. Nowhere in the said petition any averment has been made by the plaintiff / respondent / appellant that such substitution cannot be allowed in view of Explanation-II of Sub Section 2 (h) of the Jharkhand Building (Lease, Rent and Eviction) Control Act.

The Apex Court has also set aside the judgment and decree passed by the first appellate court i.e. the Coordinate Bench of this Court as the lis had passed into State of suspense. As such, no valid order on merits of appeal, in the eye of law, could have been passed by the High Court, as such, we set aside the judgment of the High Court and give liberty to the respondent to file appropriate applications, in accordance with law, for setting aside abatement, substitution and for condonation of delay before the High Court to pursue the appeal, deemed to be pending before it. Thus, the petition was filed in the present first appeal pursuant to the direction passed by the Apex Court on 07.02.2017 in Special Leave to Appeal No. 24271/2012.

In the case of Banwari Lal (Dead) Vs Balbir Singh reported in (2016) 1 SCC 607, the Apex Court has taken a view in para-10 which has already mentioned above that on sufficient cause, delay in bringing the legal representatives of the deceased party on record should be condoned. Procedure is meant only to facilitate the administration of justice and not to defeat the same.

The purpose of raising dispute regarding substitution of the legal heir before this Court by the plaintiff / respondent pursuant to 23 the interlocutory application filed by the defendant / appellant in pursuance of the direction passed by the Apex Court. The procedure and the objection which has been raised before this Court is constructive res judicata against the plaintiff / respondent as they have not agitated this issue before the Apex Court and thus a final adjudication of lis in first appeal cannot be defeated on such ground in the administration of justice.

In the case of Smt. Gian Devi Anand Vs. Jeevan Kumar Anand and Ors. reported in (1985) 2 SCC 683 dealt with Delhi Rent Control Act, which is Section 2 (l) (iii) is in para-materia with Explanation-II of Section 2 (h) of the Jharkhand Building (Lease, Rent and Eviction) Control Act. In the said case, the Apex Court has held that the tenancy right which is heritable devolves on the heirs under the ordinary law of succession. The Apex Court has held that the restrictions on the power of the landlords in the matter of recovery of possession of the premises let out by him to a tenant have been imposed for the benefit of the tenants. Inspite of various restrictions put on the landlord's right to recover possession of the premises from a tenant, the right of the landlord to recover possession of the premises from the tenant for the bona fide need of the premises by the landlord is recognised by the Act, in case of residential premises. A landlord may let out the premises under various circumstances. Usually a landlord lets out the premises when he does not need it for own use. Circumstances may change and a situation may arise when the landlord may require the premises let out by him for his own use. It is just and proper that when the landlord requires the premises bona fide for his own use and occupation, the landlord should be entitled to recover the possession of the premises which continues to be his property inspite of his letting out the same to a tenant. The Legislature in its wisdom did recognise this fact and the Legislature has provided that bona fide requirement of the landlord for his own use will be a legitimate ground under the Act for the eviction of his tenant from any residential premises. This ground is, however, confined to residential 24 premises and is not made available in case of commercial premises. A landlord who lets out commercial premises to a tenant under certain circumstances may need bona fide the premises for his own use under changed conditions on some future date should not in fairness be deprived of his right to recover the commercial premises. Bona fide need of the landlord will stand very much on the same footing in regard to either class of premises, residential or commercial. We, therefore, suggest that Legislature may consider the advisability of making the bona fide requirement of the landlord a ground of eviction in respect of commercial premises as well.

This Court consider the same and also perused the Delhi Rent Control Act, 1958 which is pari materia to Explanation-II of Section 2 (h) of the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2000, as such, this Court also consider that substitution has to be allowed liberally in this case also. So far other contention which have been raised by the learned counsel for the respondent that financial dependence has to be shown by the Narendra Lal Sarda for his substitution in place of his father after one year of death of his father, this Court consider Section 103 of the Evidence Act, which is profitably quoted hereunder:-

103. Burden of proof as to particular facts. - The burden of proof as to any particular factlies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

In the present case, it is plaintiff / respondent who has alleged that Narendra Lal Sarda is not entitled for substitution after one year of death of his father as he is not dependent upon his father Late Jamuna Das Sarda, as such, the burden of proof of this particular fact is upon plaintiff / respondent. Contrary to the same, under the Hindu Law, income of any member of the family in the Hindu Undivided Family is presumed to be income of the whole joint family. Admittedly the plaintiff / respondent have not brought any material on record to suggest that there was partition amongst the family members of Late Jamuna Das Sarda.

This Court is also of the view that plaintiff / respondent has himself prayed for substitution of legal heirs of Jamuna Lal Sarda namely Narendra Lal Sarda and subsequent thereto rent has also been accepted without any protest. If the Narendra Lal Sarda is the substituted legal heir of Late Jamuna Das Sarda then allowing substitution petition by this Court is mere formality. On the other hand, once Narendra Lal Sarda is considered to be statutory tenant of the plaintiff / respondent, then the argument advanced by learned counsel for the appellant that the decree rendered in Title Eviction Suit No. 5/1992 becomes redundent and infructuous and fresh suit is required to be filed by the plaintiff / respondent for eviction of Narendra Lal Sarda.

Under the gamut of aforesaid circumstance and law enunciated by the Apex Court in view of the judgment passed by the Apex Court in the case of Banwari Lal (Dead) (Supra) and Smt. Gian Devi Anand (Supra), the substitution petition is allowed by setting aside abatement and condoning the delay at the cost of Rs. 21,000/- to be paid by the tenant / appellant to the plaintiff / respondent / landlord within a period of six weeks from today.

Office is directed to make necessary correction in the memo of appeal in accordance with law after verifying the proof of deposit of cost in compliance of condition.

Accordingly, the interlocutory applications i.e. I.A. No. 2685/2017, I.A. No. 2691/2017 and I.A. No. 10475/2019 are allowed.

(Kailash Prasad Deo, J.) Sunil/-

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Jharkhand High Court