Girish Sharma and Another vs Kailash Chandra(Dead) Through Legal Heirs

Hon''ble Shri Justice S.K. Seth

Tenants under a decree of eviction are the appellants in this second appeal. Respondents are the legal heirs of the plaintiff/landlord-Kailash Chandra who died during this appeal.

Plaintiff filed a suit for recovery of possession of non residential premises as described in plaint on following two grounds, to wit: (i) that the appellants were in arrears of rent which amount was not paid despite service of demand notice; (ii) that the plaintiff/landlord had no reasonably suitable other accommodation for carrying on profession as an Advocate. The above grounds for eviction are covered by Section 12(1)(a) and (f) of the M.P. Accommodation Control Act, 1961. Tenants resisted the suit and in their written statements, denied all material facts as well as the grounds alleged for eviction.

The trial court recorded a finding that the ground u/s 12(1)(a) of the Act was not made out. On the question of personal requirement of plaintiff, the trial court held that bona fide requirement of the landlord is established. Accordingly trial Court decreed the suit and passed a decree for eviction. It may be mentioned that trial Court also granted a decree u/s 12(1)(C) of the Act though that was not pleaded as ground for eviction in the plaint.

In first appeal by the tenants the lower appellate Court affirmed the finding that no ground u/s 12(1)(a) was made and the suit to that extent was rightly rejected. Likewise lower appellate Court also accepted the contention of tenants that in absence of any pleading, ground u/s 12(1)(C) could not be pressed into service. Finding in that regard was also upset. Lower appellate Court, however, maintained the decree for ejectment on the ground of bona-fide requirement of the plaintiff/landlord. Consequently the first appeal was dismissed by the impugned judgment and decree. Therefore, this second appeal is by the tenants.

As stated above, during the pendency of above second appeal, original plaintiff/landlord passed away and his legal heirs were brought on record. An application under Order 6 Rule 17 of the CPC is now made praying for an amendment in the plaint alleging need of daughter of the plaintiff/landlord, who after obtaining a degree in Law has enrolled herself and is practicing as an Advocate. According to the application, now she needs the accommodation in question for starting her own office to carry on the legal practice/profession. A reply has been filed opposing the application. It is submitted that the application deserves to be dismissed and in view of this subsequent development after passing of the decree the suit merits dismissal and the appeal deserves to be allowed.

The basic rule of civil law is that the rights of the parties stand crystallized on the date of institution of the suit. A suit must be tried in all its stages on the cause of action that existed on the date of its commencement and the relief in the suit must be confined to matters existing at that date. Although this is settled law as general rule, it is equally settled that there are exceptions to this rule and it is open to the Court in exceptional cases to take into consideration subsequent events. Equally clear is the principle, the Court can not be blind to subsequent events for the purpose of adjudication of the controversy in issue. It is well settled that the cause of action for the suit grounded on the personal requirement of a landlord is not such a personal action that would die with the plaintiff, but survives to his heirs and they can continue the suit as substituted landlords only when it is proved that they also themselves need the premises. An appeal is a continuation of suit therefore, making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with current realities, the appellate Court can take notice of subsequent events having bearing on the controversy. See Pasupuleti Venkateswarlu Vs. The Motor and General Traders,

As against this, the appellants placed reliance on the decision of the Supreme Court in Seshambal (dead) through L.Rs. Vs. Chelur Corporation Chelur Building and Others, and contended that with death of plaintiff, the cause of action does not survive and the suit must be thrown out. That decision is distinguishable on facts and hence can not come in the way of the decision of this appeal. Facts of that case were in short as under. The bona-fide need in that case was that of landlord and his wife. The application was dismissed by the Rent Controlling Authority. During the revision in High Court landlord died and matter was pursued by the wife. After having lost in the High Court, wife preferred SLP in the Supreme Court. During the pendency of the SLP wife also died leaving behind three married daughters all settled, one in America, and other two not in the town concerned. Apparently the deceased had no other heirs. Hence in that case the bona-fide need no longer could stand and hence, the tenants were successful in retaining possession.

As already pointed out that in the case in hand there is unmarried daughter of the plaintiff (deceased) who wants to set up legal practice and hence her claim for the suit premises for starting the profession.

In view of the above, case has to be sent back to the trial Court for a fresh decision since I am inclined to allow the amendment application. The application is hereby allowed. The plaint be amended accordingly. The appellants shall be at liberty to make consequential amendment in their written statements after the remand. The judgments and decrees of the Courts below are hereby set aside. The trial Court shall afford opportunity to parties to lead further evidence and thereafter decide the issue of the bonafide requirement afresh according to law. The evidence already on record shall, subject to just exceptions, be read as evidence in case. The parties shall appear before the trial Court on 10.09.2012. The trial Court shall make efforts to decide the suit as expeditiously as possible. Cost would abide the final decision. Ordered accordingly.