Smt. Sabira Banu and Others vs Mohan Singh and Another

Rajesh Tandon, J.—The present writ petition under Article 226 of Constitution of India has been filed by the petitioner challenging order dated 21-9-2001 by which application filed by the respondent No. 1 substituting the heirs of Narain Singh has been allowed.

The brief facts giving rise to the preset writ petition are that an application u/s 21 (l)(a) was filed on 20-8-1993 by Sri Narain Singh praying for release of accommodation i.e. shop No. 2 Mohan Niwas Malli Bazar, Bhawali, District Nainital in his favour. In para 4 of his application Sri Narain Singh has described family members of his family as under :

(1) Applicant self (2) Smt. Narain Singh (wife) (3) Mohan Singh (son) (4) Smt. Mohan Singh (daughter in law) (5) Master Kirti Bardhan (grandson) (6) Gaurav Bardhan (grandson) (7) Yas Bardhan (grandson) (8) Diwan Singh (brother) (9) Pratap Singh (nephew) (10) Smt. Pratap Singh (wife of the son) (11) Lalit Sigh (grandson) (12) Balbahadur (grandson).

In paragraph 5 of the application, the landlord Narain Singh has stated that he wants to establish his own business as well as the business of his grandsons. Further in paragraph 8 of the application it has been specifically stated that the shop is required for the family members of the landlord. During the pendency of the application Narain Singh died on 28-12-1999 and as such on 12-1-2001. Mohan Singh has filed an application under Rule 25 of Rules framed under U. P. Act XIII of 1972 paper No. 141-C supported by affidavit 142-C, stating therein that he is the sole legal representative of deceased Narain Sigh. The application was replied by the petitioner stating therein that Mohan Singh is not legal representative and in fact he is nephew of Narain Singh. The objection is paper No. 144-C supported by affidavit 145-C.

Rejoinder affidavit was also filed by Sri Mohan Singh stating therein that after the death of Narain Singh he is the only legal representative as he is the adopted son of Narain Singh. According to the pleadings of the parties adoption had taken place on 6-5-1955 and since then there is relationship of father and son between Narain Singh and Mohan Singh and further Narain Singh has treated Mohan Singh as his son and also gave him education at his residence. The Prescribed Authority vide his order dated 21-9-2001 has allowed the application and substituted Mohan Singh in place of deceased Narain Singh. The present writ petition has been filed challenging the order dated 21-9-2001 allowing the application under Rule 25 of Rules framed under U. P. Act XIII of 1972.

Heard Sri B. C. Pandey, Advocate on behalf of the petitioner and Sri G. S. Bisht on behalf of respondent landlord at great length. It has been vehemently argued by Sri B. C. Pandey inter alia that the order dated 21-9-2001 allowing the application under Rule 25 is completely without jurisdiction; the application u/s 21 (l)(a) has become infructuous after the death of Narain Singh in view of clause (7) of Section 21 of the Act; the cause of action, therefore. has already perished after the death of Narain Singh; Mohan Singh is not the legal heir of Narain Singh so as to get himself substituted under the provisions of family member as defined under the Act.

According to Sri B. C. Pandey Section 21 (7) provides that the heirs have to establish their own requirements in order to succeed u/s 21 (1) (a) of U. P. Act XIII of 1972. It may be pointed out that sub-section (7) of Section 21 was introduced by inserting U.P. Act No. 28 of 1997 with effect from 5-7-1997. The same is quoted below :

"(7) Where during the pendency of an application under clause, (a,) of sub-section (I), the landlord died, his legal representative shall be entitled to prosecute such application further on the basis oft their own need in substitution of the need of the deceased."

As will appear from sub-section (7) that original application u/s 21(1)(a) cannot be defeated on account of the death of original landlord. Sub-section (7) of Section 21 only provides additional need if any, of the legal representatives the word which has been emphasised under sub-section (7) gives it clear meaning regarding additional requirement of legal representatives.

The word ''further'' has a great significance and as such any material with regard to bona fide requirement in the original application u/s 21 (i)(a) cannot be ignored on account of death of the original landlord. The meaning of ''further'' as is given in Concise Oxford English Dictionary, Xth Addition, is that; in or to a more advanced, successful, or desirable stage ....................In addition also.

Sri B. C. Pandey has referred the decision in Birendra Nath v. 6th A.D.J. Moradabad. 1981 All Rent Cas 191 : 1981 All LJ 570 where Hon''ble Mr. Justice S.D. Agrawal has relied upon the Judgment of Hon''ble Supreme Court in Phul Rani and Others Vs. Sh. Naubat Rai Ahluwalia, and has held that if the application for release is made on personal requirement of landlord and if such a landlord dies, the personal cause of action itself perished with him. In the aforesaid Judgment there is no reference of the provision of Sub-section (7) of Section 21 a as such aforesaid view cannot be relied upon. The learned counsel for the petitioner has further relied upon M/s. Nadri Prasad Deya Ram v. Ramesh Chandra Gupta, (1997) 2 All Cas 654 : 1996 All LJ 1024 where Hon''ble Mr. Justice Sudhir Narain has distinguished the aforesaid judgment of Birendra Nath''s case (supra). Similar controversy arose in Raghunath G. Panhale (Dead) By Lrs. Vs. M/s. Chaganlal Sundarji and Co., . The case relates to the bona fide requirement of landlord. The reference was also made by the Hon''ble Supreme Court regarding Phool. Rani''s case (supra) and the Apex Court has come to the conclusion that the Judgment in the Phool Rani''s case has been overruled in Shantilal Thakordas and Others Vs. Chimanlal Maganlal Telwala, : ( Shantilal Thakordas and Others Vs. Chimanlal Maganlal Telwala, ). The observations of the Apex Court in Raghunath G. Panhale (Dead) By Lrs. Vs. M/s. Chaganlal Sundarji and Co., ) are as under (para 12) :-

"Learned counsel for the respondent, however, raised another point regarding abatement and relied upon Phul Rani and Others Vs. Sh. Naubat Rai Ahluwalia, to contend that while the matter was in the trial Court, the original plaintiff died, that the cause of action based on his bona fide requirement ceased to exist and the suit could not have been continued by his heirs. This was because the original plaintiffs requirement would not be the same as that of his heirs. It is true, the above judgment does support the above contention. On the main point, the above decision was overruled in Shantilal Thakordas and Others Vs. Chimanlal Maganlal Telwala, where it was held that if the original plaintiff pleaded that it was his own need and that of the family members, the cause of action would survive, on his death to his heirs. In Shantilal case it was pointed out that if the landlord claimed possession on the ground of bona fide requirement for himself and his family members, his family members could continue the same eviction case, .after the landlord''s death, without amendment since the cause of action would survive to them."

As will appear from the observations of Hon''ble Supreme Court that the landlord in his initial application has already stated in paragraph 4 that he needs the premises in question for his family members. Similar controversy arose in Kamleshwar Prasad Vs. Pradumanju Agarwal (dead) by LR''s., where Apex Court has observed that even the landlord died during the pendency of the petition bona fide need cannot be said to have been lapsed. Need, therefore, was set up with regard to the family members. According to the landlord Mohan Singh having been adopted, and he having been shown as family member, need having been shown regarding grandson. therefore, in my opinion there is no impediment for the landlord to prosecute the original application u/s 21 (l)(a) of U.P. Act No. 13 of 1972 by the legal representative of Sri Narain Singh after filing application under Rule 25 of Rules framed under U.P. Act XIII of 1972, I am, therefore, of the opinion that the application under Rule 25 has been rightly allowed.

Hon''ble Supreme Court in the case Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others, has held as under (Para 27) :

"Laws ought to be and usually are, framed with a view to such cases as are of frequent rather than such as are of rare or accidental occurrence; or in the language of the civil law, jus, constitui oportet in his quoe ut plurimum accidunt, non quoe ex inoplnato; for, neque leges neque senatusconsulta ita scribi possunt ut omnes casus qui qundoque inclderint comprehendantur, sed sufficit ea quoe plerumque accident constlneri; laws cannot be so worded as to include every case which may arise, but it is sufficient if they apply to those things which most frequently happen."

So far as the requirement of the substituted heir is concerned the counsel for the petitioner has stated that the said question shall be decided in the case itself before the Prescribed Authority. It will be open for the Prescribed Authority to adjudicate the question with regard to bona fide requirement of landlord/ his legal representative and the parties will be given sufficient opportunity to lead evidence with regard to the bona fide need of the landlord or his substituted heir.

So far as the question with regard to the proceedings u/s 21 (1)(a) is concerned, I am of the view that the judgment of Hon''ble Supreme Court reported in Raghunath G. Panhale (Dead) By Lrs. Vs. M/s. Chaganlal Sundarji and Co., : ( Raghunath G. Panhale (Dead) By Lrs. Vs. M/s. Chaganlal Sundarji and Co., ) where the original landlord pleaded that it was his own need and that of the family members, the cause of action would survive on his death to his heir. Therefore, there is no substance in the writ petition and the writ petition, deserves to be dismissed.

The writ petition is accordingly dismissed. There will be no order as to the costs.