Narain vs Lrs. of Smt. Ansuyiya Bai

R.C. Lahoti, J.

The Petitioner, a tenant, has come up in revision u/s 23-E of M. P. Accommodation Control Act, 1961, aggrieved by an order of eviction from a non-residential accommodation passed by the Rent Controlling Authority, Gwalior under Chapter III-A of the Act.

The case of the landlord/non-Petitioner was that she was a widow and without any employment. She had a son by name Basantrao, aged 21 years, also unemployed. She pleaded bonafide requirement of the suit accommodation for starting a shop of stationery and book-binding work to be run by herself and her son Basantrao. The Defendant/Petitioner having contested the applications on merits, ultimately the Rent Controlling Authority found the case as pleaded by the landlord to be proved. At the trial, the landlord Ansuiyabai and her son Basantrao both had appeared as witnesses and substantiated the averments made in the application for eviction. Both the Statements were believed by the Authority.

During pendency of revision before this Court, Ansuiyabai, the widow-landlord expired. Her two sons, namely, Basantrao and Ganpatrao have been allowed to be brought on record in place of late Ansuiyabai on an application made by the tenant/Petitioner.

At the hearing Shri Ramji Sharma learned Counsel for the Petitioner with his usual vehemence and thrust has raised two substantial contentions. He submits, firstly, that the original landlord was late Madhavrao, husband of late Ansuiyabai and on the death of Madhavrao, the rights of landlord had develoved upon the widow and also on the two sons, who all having not been joined as parties to the application for eviction, the application was had for nonjoinder of necessary parties. The application was bad also because need of Basantrao, a co-landlord, but not a landlord beloning to the categories of landlords contemplated by Section 23-J of the Act could not have been pleaded by another co-landlord, a widow. His second submission is that Ansuiyabai having expired during the pendency of the revision, this Court was bound to notice the subsequent event and hence the order of eviction passed by the Authority was liable to be set aside. Shri D. K. Kothari, learned Counsel appearing earlier for the widow landlord and now for her legal representatives, has countered the contentions raised by Shri Ramji Sharma.

In so far as the first contention raised by Shri Ramji Sharma is concerned, the same is no more res integra, the field having been covered by a number of authorities. When the property, subject-matter of tendancy, is jointly owned by co-owners and has not been partitioned, every inch of it is much owned by one co-owner as by the other and as such a suit for eviction can certainly be maintained by one of the co-owners. Recently in Palsingh v. Shri Sundersingh (1989 MPRCJ 72) the Apex Court, following its own earlier two decisions, has held that when the other co-owners do not object to the eviction, one co-owner can maintain an action for eviction even in the absence of other co-owners the position will change only when a partition takes place.

In Ghanshyamdas Gupta v. Shivaldas and Ors. (1988 MPLJ 260) it was observed, "The definition of the term "landlord" in Section 2 (b) of the Act does not negative plurality of ownership of any premises or accommodation to deny claim by any person as a landlord of any premises to initiate action u/s 23-A because it cannot be said that he was not entitled to receive rent from the person who was being sued as a tenant for an order of eviction against him."

In Sushila Devi Somani v. Kedarnath (1987 JLJ 453), a Single Bench decision, the view taken was that a widow co-owner could not initiate proceedings for eviction of the tenant before the Rent Controlling Authority pleading requirement of her major son, who was a co-owner. The view ran in conflict with the view taken in other three single Bench decisions to the contrary and on a reference being made to a Division Bench in Shibraj Jat v. Ashalata Yadav and Ors. (1989 MPLJ 202) it was held overruling the view taken in Sushila Devi''s case (supra) that:-

When legislation enables a landlord'' to seek eviction if the leased premises are bona fide required by the landlord there can be no logic or justification for denying that relief to the landlord, because the major son or daughter of the landlord also happens to be co-owner of the leased premises.

The first contention of the learned Counsel for the Petitioner on all its limbs is, therefore, over ruled.

To examine the depth of the second contention raised by Shri Sharma, it will be useful first to examine the nature and scope of powers of revision conferred on the High Court u/s 23-E of the Act, before examining the legal effect of the death of the landlord in such proceedings. While inserting Chapter III-A M. P. Accommodation Control Act, 1961, the Amending Act of 1983, chose to incorporate Section 3-E(sic) also therein making an independent provision for exercise of revisional jurisdiction by the High Court inspite of Section 115 being available in the Code of Civil Procedure, 1908. A reading in juxta position of the provisions contained in Section 115 C. P C. and Section 23-E of M. P. Accommodation Control Act, 1961 shows that jurisdiction under the latter provision has been made a little wider. Section 23-E specifically speaks of suo motu exercise of revisional jurisdiction by the High Court apart from the same being exercised at the instance of a person aggrieved. The purpose of jurisdiction conferred on the High Court has been defined as for satisfying itself as to the legality, propriety or correctness of any order passed by or as to the regularity of the proceedings of Rent Controlling Authority. The High Court has jurisdiction to pass such order as it thinks fit. This wide power has no fetters so as to be qualified or circumvented by any such riders as are to be found in Clauses (a) to (c) of Sub-section (1) of Section 115 C. P. C. or in Clauses (a) and (b) of the proviso thereto. Nevertheless the jurisdiction is not an appellate one. That is why on several occasions this Court has held that the power conferred by Section 23-E is wider than that the limited power of revision u/s 115 C. P. C., but certainly not so wide as vests in a court of appeal. (See B. Johnson v. C. S. Naidu (1985 JLJ 675) and Mahendra Kumar Jain v. Dharamchand Jain (1986 JLJ 145).

To understand and appreciate the basic distinction between an appellate revisional jurisdiction, it would be useful to read what the Apex Court said in Hari Sankar v. Girdharilal (AIR 1963 SC 693),

The distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way, as has been done in second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case has been decided according to law. Under S. 115 of the Civil P. C. the High Court''s powers are limited to see whether in a case decided, there has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did or there has been material irregularity or illegality in the exercise of that jurisdiction. The right there is confined to jurisdiction and jurisdiction alone.

Let us now divert to examine the effect of death of a landlord in eviction proceedings and then we would revert back to examine the effect of such death during the pendency of a revision in the back ground of the distinction between appellate and revisional jurisdiction noticed hereinabove. The leading authority on the effect of Landlord''s death in ejectment proceedings is to be found in Phul Rani and Others Vs. Sh. Naubat Rai Ahluwalia, Ahluwalia Their Lordships observed vide paras 9 and 10:

It is patent and would be a truism to say that the death of the Plaintiff will not cause the ejectment preceedings to abate if the right to sue survives.

The solution to the problem whether the Appellants can continue the proceedings in their capacity as the legal representatives of the Plaintiff lies in the pleadings of the Plaintiff for those alone can reveal the true nature of the right asserted by the Plaintiff in the ejectment proceedings.

Vide para 13, their lordships before noticing several decided cases, categorised several situations arising on account of death of the landlord pendentelite into three. The first one, relevant to our purpose, is as under:

Cases in which the death of the Plaintiff occurred after a decree for possession was passed in his favour: say, during the pendency of an appeal filed by the unsuccessful tenant." As to this category vide para 14 their Lordships observed:

"the estate is entitled to the benefit which, under a decree, has accrued in favour of the Plaintiff and therefore the legal representatives are entitled to defend further proceedings, like an appeal, which constitute a challenge to that benefit.

Vide paras 15 and 16, their Lordships approved three views taken in 3 decisions cited before them from the High Courts of Madhya Pradesh, Delhi and Punjab. In Motilal Pannalal Vs. Kailash Narain, , the landlord having obtained a decree for possession on the ground of personal necessity u/s 4 (g) of Madhya Bharat Accommodation Control Act, 1955 expired during pendency of the appeal filed by the tenant. The decree was held to be enuring for the benefit of son and widow of the deceased landlord. So were the cases in the Punjab and Delhi decisions.

Mortal''s case (supra) was followed in Narsingdas v. Mohd Yasin Khan (1962 MPLJ SN 93) wherein it was held that words in Section 4 (g) of the Act were to be interpreted liberally to cover the need of the landlord and his dependents. It was further held that when need of the widow and brother of the landlord was specifically referred to at the stage of the trial, it could be enquired into even after the death of the landlord during continuance of proceedings.

In view of the overwhelming authorities referred to hereinabove, there can be no manner of doubt that if by reference to the nature of the requirement pleaded, the cause of action survives to the legal representatives inspite of the death of Plaintiff/landlord, the ejectment proceedings can be coutinued. So also if the death of the Plaintiff occurs after a decree for possession was passed in his favour, the legal representatives can defend the decree as their accrued estate in further proceedings prosecuted by an unsuccessful tenant.

Applying the abovesaid test to the present case there is no manner of doubt that the requirement pleaded and found proved by the Authority below was of not only Ansuiyabai but also of her son who is one of the legal representatives now defending in revision the order of eviction under challenge. The death of Smt. Ansuiyabai, the original Plaintiff, would not, therefore, render the order of evicsion liable to be set aside.

Faced with this situation dauntless Shri Sharma still submits that the jurisdiction under Chapter III-A of the Act is a special jurisdiction conferred on the Rant Controlling Authority by virtue of the landlord initating(sic) and prosecuting proceedings to be one belonging to a special category contemplated by Section 23-J of the Act and the death of that landlord would deprive the Rent Controlling Authority of its jurisdiction unless the legal representatives brought on record or at least one of them belonged to 23-J category. The argument, though attractive, betrays fallacy no sooner it is demonstrated that disqualification as to jurisdiction could be attracted to the Rent Controlling Authority and not this Court hearing revision, This is where the character of the revisional jurisdiction assumes significance. Inspite or a little wider jurisdiction conferred by Section 23-E of the Act the jurisdiction would nevertheless remain a revisional jurisdiction entitling this Court to make a probe into the legality, propriety or correctness of the order passed by the Authority below or as to the regularity of the proceedings thereat, unlike an appellate jurisdiction where the entire matter becomes at large before the appellate Court and mere filing of appeal destroys the finality attaching with the judgment and decree impugned. Smt. Ansuiyabai was certainly alive on the date of passing of the order of eviction by the Authority below. The question to be asked by this Court to itself would be: is there any illegality, impropriety or incorrectness in the order passed by the Authority below ? Is there any irregularity in the proceedings of the Authority below? Needless to say that in the facts of the case, the answer would be ''No''. That would be an end of the matter. The order of the Authority below is to be maintained because it was a valid order passed in valid proceedings. The death of the Plaintiff cannot abate the proceedings because the cause of action does survive to the legal representatives on the pleadings in the case.

The result of the abovesaid discussion is that the revision is found to be without any merit. It is dismissed accordingly but without any order as to costs looking to the purely legal controversy arising therein. The Petitioner is granted time till 31-3-1990 to vacate the premises subject to his clearing all arrears of rent upto 31-12-1989 by that date and thereafter to continue to pay or deposit the rent falling due month by month on or before 15th day of that month.