Kanwar Singh vs Om Kant and Others

Adarsh Sein Anand, J.—A suit for ejected of the Defendant-Appellant from the (sic)op situate at Udhampur was brought by three persons

namely S/Shri Om Kant, Suraj Parkash and Ram Rattan. The principal ground on which the ejectment of the Defendant-Appellant was bought

was that the suit shop was required for the personal necessity of Om Kant to whose share the shop had fallen in a family partition. The suit was

dismissed by the learned Sub-Judge, Udhampur, on 22-11-1975 but the decree and judgment of the learned Sub Judge was set aside in appeal by

the learned district Judge, Udhampur, on 1-5-1976. Aggrieved against the decree of reversal, the Defendant-Appellant filed the civil second

appeal which is the subject-matter of decision by this Court. During the pendency of the appeal in this Court, shri Om Kant died and his legal

representatives were brought on the record.

Mr. R.P. Bakshi, learned Counsel (sic) the Defendant-Appellant appearing in support of the civil second appeal, has submitted that since the

sole ground for ejectment of the Appellant was that the (sic)t shop was required by Om Kant for (sic) personal necessity and since Shri Om Kant

had died, the ground of personal necessity had perished with him and as much, it is contended, the appeal be alleged and the suit filed against the

Appellant be dismissed. It is maintained at the premises in dispute was a commercial shop and the ground for eviction (sic)s that Om Kant needed

the same to (sic)t his own Karyana shop and, therefore, on his death that ground was no (sic)ger available. Mr. Bakshi urges that (sic) position in

case of a residential house (sic)ld be different as the family members might be allowed to say that since they were living with the landlord be(sic) his

death, his personal necessity indeed their personal necessity, also. No (sic)r ground has been urged by Mr. R.P. Bakshi in support of the civil

second appeal.

Mr. T.S. Thakur, learned Counsel (sic) the legal representatives of Shri Om Kant and the other Respondents, has concluded that the ground of

eviction was (sic) available to the heirs of Om Kant they would have continued with the (sic)ing of the shop affer Om Kant and (sic) since a decree

for possession had (sic) passed in favour of Om Kant, the landlord, the decree could be defended (sic)is legal representatives for the bene(sic)f his

estate and that the decree was (sic)liable to be upset only on the ground (sic) the landlord for whose personal necessity the order was passed, had

died. It is urged that the benefit by way of a decree is an incorporeal right and that right having vested in Om Kant in that a decree for eviction

having been passed against the Appellant, the legal representatives of Om Kant cannot be divested of that benefit on the death of Om Kant.

Mr. Thakur has, in support of his submissions, placed strong reliance on Phul Rani and Others Vs. Sh. Naubat Rai Ahluwalia, , In that case the

Plaintiff, in a Rent Act application against his tenant, sought possession of certain premises on the ground of personal requirement but died during

the pendency of the appeal before the Appellate Authority. The legal representatives of the deceased made an application for being brought on

record of the appeal and that application was opposed by the tenant. The Appellate Authority, however, allowed the legal representatives to be

brought on the record. The contention of the tenant that the right to sue (including the right to continue the appeal) did not survive to the heirs of the

Plaintiff, was negatived by the appellate authority. In an appeal before the High Court at Delhi, their Lordships of the Delhi High Court took the

view that the right to sue did not survive to the heirs of the Plaintiff and on that ground the application for ejectment was dismissed, leaving it open

to the heirs to bring fresh proceedings founded on their own requirements. The correctness of that decision was challenged by the Plaintiff's heirs in

the appeal before the Supreme Court. Their Lordships of the Division Bench of the Supreme Court considered various aspects of the case and

came to the conclusion that the cases in which the death of the Plaintiff occurred after a decree for possession was passed in his favour say, for

example, during the pendency of an appeal filed by the unsuccessful tenant, the estate is entitled to the benefit which, under a decree, had accrued

in favour of the Plaintiff and, therefore, the legal representatives in such cases are entitled to defend all such proceedings which constitute a

challenge to that benefit. The plea of the tenant was therefore rejected.

Reliance has also been placed on Vijayaraghavan Vs. Mohammed Yakub Rowther (died) and Others, by Mr. Thakur wherein it was observed

as follows (at d. 207):

The benefit by way of a decree which a predecessor-in-interest has secured being an incorporeal right and that right having vested in a landlord or

landlady in that a decree for eviction has already been passed cannot be divested by his or her death, as it could pass on to the heirs as it becomes

part and parcel of the property owned by the landlord or landlady. Thus viewed, the Respondents (legal representatives of deceased landlord) in

the revision filed by tenant are entitled in law and in equity to take advantage of the favourable decision obtained by the deceased landlord before

the Rent Controller and which gained acceptance before the appellate authority as well. There cannot be a divesting of such a right by reason of

the death of the landlord in the course of the revision proceedings.

Mr. Thakur has then relied upon Smt. Dhan Devi v. Bakhshi Ram AIR 1969 Puni and Har 270. In para. 7 of the judgment their Lordships

observed (at p. 277):

Moreover, it cannot be held as a matter ot law that the ground of ejectment contained in sub-para. (ii) of paragraph (a) of Sub-section (3) of

Section 13 of the Act is a ground personal to the landlord who originally files the action for ejectment. The ground relates to the landlord and

should in the normal course be available to the landlord who files the application for ejectment as well as to his successors-in-interest.

All the aforesaid authorities undoubtedly support the arguments of Mr. Thakur.

Mr. R.P. Bakshi, appearing for the Defendant-Appellant, has on the other hand, contended that since an appeal is a continuation of the suit, the

decree passed in the suit against which an appeal is pending cannot be treated to be a final decree and no right can be claimed on the basis of a

decree which is not yet final. Mr. Bakshi has in this connection, placed reliance upon a Division Bench judgment of the Allahabad High Court in

District Board Vs. The Upper India Sugar Mills Ltd., wherein it was observed that (at p. 530):

no doubt there is an element of finality attaching to a decree passed by the trial court. Once, however, an appeal is filed from the decree of the trial

court, and the case is heard on merits by the appellate Court, the element of finality disappears and the whole case is reopened before the Court of

appeal.

On the basis of this authority it is vehemently maintained by Mr. Bakshi that unless the decree had become final no right can be said to have

vested in the decreeholder or his estate unless after the decree had become final.

While replying to the arguments of Mr. Thakur based on Phul Rani and Others Vs. Sh. Naubat Rai Ahluwalia, and Vijayaraghavan Vs.

Mohammed Yakub Rowther (died) and Others, Mr. Bakshi submits that in Shantilal Thakordas v. Chimanlal Maganlal. All 1976 SC 2358, a

bench of three Judges of the Supreme Court had expressly over ruled the judgment in Phul Rani and Others Vs. Sh. Naubat Rai Ahluwalia, and

that since Vijayaraghavan Vs. Mohammed Yakub Rowther (died) and Others, was also based (sic) Phul Rani and Others Vs. Sh. Naubat Rai

Ahluwalia, , the law laid down by the Madras High Court is no longer good law.

In Shantilal Thakordas and Others Vs. Chimanlal Maganlal Telwala, , their Lordships were called upon to deter mine whether the decision in

AIR 19(sic) SC 2110 was correct or not. In para of the judgment their Lordships opined thus (at p. 2359):

The foremost and the first question urged before us by Mr. Dholakia was that Phul Rani and Others Vs. Sh. Naubat Rai Ahluwalia, was not

correctly decided. (sic) agree with this contention and say w(sic) respect that we do not subscribe to the view expressed by the Bench of the

Court in that case.

Again, while dealing with the question whether the benefit of a de(sic) obtained by the original landlord co(sic) be denied to the legal heirs.

Their Lordships observed in para. 6 of the judgment as under (at p. 2360):

Counsel for the Appellants endeavored to bring their case within one of (sic) exceptions noted in Phul Rani and Others Vs. Sh. Naubat Rai

Ahluwalia, . He submitted th(sic) a decree had already been passed in (sic) our of the original Plaintiff by the (sic) court and that could not be

disturbed his death either in appeal or revision (sic) do not accept the contention as (sic) or correct.

This judgment, therefore, is a co(sic) answer to the arguments raised (sic) Thakur.

In the present case it is not disputed that the ground on which ejectment of the Appellant was (sic) was that the suit shop was required Om

Kant for his own benefit to the Karyana shop. P.W.1, Shiv Ram that the shop was required for the personal use of Om Kant who wan(sic) run a

Karyana shop therein. The same effect is the evidence of Amar Nath, Arun Kumar, brother of the deceased, Amar Nath, P.W.'s and Om Kant.

Plaintiff, himself. This was in fact the case pleaded by the Plaintiff also. It is thus obvious that the ground on which ejectment was sought i.e. to run

the Karyana shop was a ground personal to Om Kant only.

Section 11 of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966, provides protection to a tenant against his eviction. It is

provided in Sub-section (h) of the Act that a landlord may (sic)eek the ejectment of his tenant on the ground that he requires the premises for his

own occupation or for the occupation of any person for whose benefit the premises is held. The word, ""requirement"" immplies 'necessity' and

therefore, the ground for eviction u/s 11(h) of the Act, 1966, would be where the premises is required for the 'personal necessity of the landlord

himself or such person for whose benefit the premises is held. In the instant case, the personal necessity was of the landlord, Om Kant himself and

of no one else. There is neither any pleading in the original suit (sic)or any averment in the application of (sic)e legal representatives of Om Kant

while seeking permission to be brought (sic) the record (in place of the deceased) that the suit shop was required for the benefit of the legal

representatives also. (sic)ce, the premises in dispute is a commercial shop it was necessary for the (sic)gal representatives to urge that they (sic)

any one of them was going to run (sic) shop and that they or any one of (sic)em had the 'capacity' and the 'capability to run the shop to negative the

contention of the tenant that the suit shop (sic)s not required 'bona fide by the land(sic)d for his personal necessity. It was (sic)en to the legal

representatives of Om (sic)nt to come forward and say that they (sic)o required the suit shop for their per(sic)al necessity and seek amendment of

(sic)dings. If amendment was allowed (sic) case might have to be remanded but They have not made any such application before this Court and it

would be (sic)jectural to hold that the suit for ejectment was for their benefit also. As (sic)ced earlier, the requirement of 'personal necessity' was

personal to Om Kant (sic) in my opinion it perished with the (sic)h of Om Kant. A personal action, (sic)the type we have in the facts and

circumstances of the present case, must with the person

Since, an appeal is a continuation of the suit it cannot be said that there was any final decree in favour of the landlord and, therefore, the

question of divesting the estate of the benefits of any final decree does not arise, I am in respectful agreement with District Board Vs. The Upper

India Sugar Mills Ltd., . In view of the clear law laid down in Shantilal Thakordas and Others Vs. Chimanlal Maganlal Telwala, I am unable to

follow the law laid down in Vijayaraghavan Vs. Mohammed Yakub Rowther (died) and Others, which no longer can be regarded as good law.

As a result of the above discussion, the appeal of the Appellant is allowed, the suit filed by Om Kant and Ors. is dismissed. There shall be no

orders as to costs.

Before parting, I must make it clear that it shall be open to the legal representatives of the deceased, if so advised, to bring in fresh proceedings

against the Defendant-Appellant for his ejectment on the ground of their personal necessity and the dismissal of the suit for the aforesaid reasons

shall not stand in their way.

After the judgment was announced, Mr. Thakur, the learned Counsel for the Respondent, has prayed that leave be granted to him to file an

appeal before the Letters Patent Bench u/s 12 of the Letters Patent.

The question decided in this appeal has been concluded by the Supreme Court in Shantilal Thakordas and Others Vs. Chimanlal Maganlal

Telwala, and I, therefore, do not find any valid ground for granting leave. The prayer is rejected.