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CASE NO.:

Appeal (civil) 4496-4497 of 1998

PETITIONER:

Shakuntala Bai & Ors.

RESPONDENT:

Narayan Das & Ors.

DATE OF JUDGMENT: 05/05/2004

BENCH:

CJI& G.P. Mathur.

JUDGMENT:

JUDGMENT

G.P. MATHUR,J.

1. It is a shocking case. A suit for eviction of a tenant was instituted

more than 42 years back in March, 1962 for the bona fide need of carrying

on business by the owner landlord but his widow and sons are still knocking

the doors of court of justice. During the pendency of the appeal filed by the

tenant the landlord died leaving a widow and minor sons but this, the High

Court thought, came to the advantage of the tenant, rendering the suit liable

for dismissal, little realizing that they also needed some place to carry on

business for survival. Such extreme views erode the faith of people in the

judicial system prompting them to take recourse to extra judicial methods to

recover possession of their property.

2. These appeals by special leave have been preferred against the

judgment and order dated 3.9.1997 of the High Court of Madhya Pradesh by

which the second appeals filed by the respondents/tenants were allowed and

the suit for their eviction was dismissed.

3. Girdhari Lal Gattani (husband of appellant no.1 and father of

appellants no.2 to 4) filed a suit on 31.3.1962 for eviction of Magan Lal

(father of respondents) from a non-residential premises. The suit was filed

on the ground that he required the premises for carrying on his own

business. The suit was decreed by the trial Court against which an appeal

was preferred by Magan Lal. During the pendency of the appeal, Girdhari

Lal died and the appellants herein were substituted as his heirs and legal

representatives. The appellants sought an amendment of the plaint and

pleaded that they bonafidely require the premises for carrying on business.

The tenant Magan Lal sought an amendment in the written statement to the

effect that after the death of Girdhari Lal, the bona fide requirement of the

premises for carrying on business pleaded in the suit came to an end. The

lower appellate Court allowed the amendments and remanded the matter to

the trial Court for fresh consideration. During the pendency of the suit, the

plaint was further amended and it was pleaded that the appellants no.2, 3 and

4 had also attained majority and they wanted to start a cloth business in the

premises in dispute. The trial Court, after affording the parties an

opportunity to adduce evidence, dismissed the suit. The appellants then

preferred an appeal and during the pendency thereof the original tenant

Magan Lal died and his sons, respondents no.1 and 2 were substituted in the

plaint. The lower appellate Court allowed the appeal and decreed the suit

for eviction. Feeling aggrieved by the aforesaid judgment and decree of

eviction, the respondents preferred second appeal which has been allowed by

the High Court by the impugned judgment/decree dated 3.9.1997 and the

suit has been dismissed.

4. The main ground on which the appeal has been allowed by the High

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Court is that in a suit filed by the landlord for eviction of a tenant, the

requirement or need set up by him must subsist till the appeal filed by the

tenant is finally decided and that a tenant can always take advantage of

subsequent event like death of the landlord at a later stage during the

pendency of the appeal etc. to urge that the requirement or need of the

landlord has come to an end. Accordingly, it has been held that on the

death of Girdhari Lal Gattani, the Civil Suit filed by him ought to have been

dismissed as his legal heirs, the appellants herein, could not have continued

the suit which was based on personal bona fide need.

5. The question which requires consideration is whether on account of

death of a landlord during the pendency of the appeal, a suit validly

instituted by him for eviction of a tenant on the ground of his personal need,

is liable to be dismissed.

6. The enactment with which we are concerned is the Madhya Pradesh

Accommodation Control Act, 1961 (Act No.41 of 1961). The preamble of

the Act reads as under :

"An Act to provide for the regulation and control of letting and

rent of accommodations, for expeditious trial of eviction cases

on ground of "bona fide" requirement of certain categories of

landlords and generally to regulate and control eviction of

tenants from accommodations and for other matter connected

therewith or incidental thereto."

As the preamble shows the Act has been enacted to regulate and

control eviction of tenants and for expeditious trial of eviction cases on the

ground of bona fide requirement of certain categories of landlords. Section

2(b) defines a "landlord" and it reads as under :

2(b). "landlord" means a person, who, for the time being, is

receiving, or is entitled to receive, the rent of any

accommodation, whether on his own account or on account of

or on behalf of or for the benefit of, any other person or as a

trustee, guardian or receiver for any other person or who would

so receive the rent or be entitled to receive the rent, if the

accommodation were let to a tenant and includes every person

not being a tenant who from time to time derives title under a

landlord.

7. Chapter III deals with control of eviction of tenants and sub-section

(1) of Section 12 therein lays down that notwithstanding anything to the

contrary contained in any other law or contract, no suit shall be filed in any

Civil Court against a tenant for his eviction from any accommodation except

on one or more of the grounds enumerated in the sub-section. Clause (f) of

this sub-section reads as under :

(f) that the accommodation let for non-residential purposes

is required bona fide by the landlord for the purpose of

continuing or starting his business or that of any of his major

sons or unmarried daughters if he is the owner thereof or for

any person for whose benefit the accommodation is held and

that the landlord or such person has no other reasonably non-

residential accommodation of his own in his occupation in the

city or town concerned.

The aforesaid provisions show that a suit for eviction of a tenant from

an accommodation let for non-residential purposes can be instituted by a

landlord for the purpose of his own business or that of any of his major

unmarried sons or daughters, if he is the owner of the premises or for any

person for whose benefit the accommodation is held. It may be noticed

that this clause does not say that only such a landlord who has attained

majority can institute a suit. But if the need which is set up is that of the

sons of the landlord then they should be major sons. There is no restriction

on a landlord who may be minor to seek eviction of a tenant if the premises

is bonafidely required by him.

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8. As mentioned earlier, the suit filed by the original landlord Girdhari

Lal Gattani was decreed by the trial Court but he died during the pendency

of the appeal preferred by the tenant Magan Lal. Thereafter, the appellants

(heirs of Girdhari Lal) applied for amendment of the plaint which was

allowed. The amended para 5B reads as under :

"(5B). The need for which eviction was sought by the late

Shri Girdharilal still persists if any this it has been much more

accentuated. The contemplated business will now be run by

the widow of the deceased. She has a son \026 the respondent

no.3 Laxminarayan who will shortly attain majority. He is

about 16 years old. He is an intelligent boy and is already

trained in the trade. These respondents have enough money

with them. Laxminarayan recently earned first price of

Rs.7500/-, Girdharilal's insurance money of Rs.11000/- has

also been received by the respondents. This will enable them

to start business for their livelihood."

The lower appellate Court remanded the case to the trial Court for

fresh consideration and during the pendency of the suit after remand, the

plaintiffs again applied for amendment of the plaint, which was allowed and

the main amendment so incorporated reads as under :

"(5B). The plaintiffs in right earnest shall start business of

ready made garments in the suit premises. The plaintiff no.3

and 4 also attained majority during the pendency of suit. The

plaintiffs no.2, 3 and 4 shall start business of ready made

garments after receiving vacant possession of suit

accommodation."

9. The first amendment sought by the appellants was that need of the

premises in dispute not only persist but had been accentuated on account of

death of Girdhari Lal. According to the plaintiffs, the business shall be

carried on by his widow, who shall be assisted by her intelligent son

Laxminarayan, who was then aged about 16 years and was already trained in

trade. The business was required to be carried on for their livelihood. It

appears that after the remand, the suit remained pending in the trial Court for

quite some time and during this period, the other sons, namely, plaintiffs

no.3 and 4 also attained majority and it was pleaded that all the sons will

carry on the business. Thus, at the time when the trial Court finally heard

the suit, all the plaintiffs were major and they had specifically set up their

own bona fide need for the premises in question for carrying on business for

their livelihood.

10. The effect of death of a landlord during the pendency of the

proceedings has been considered in several decisions of this Court. In Smt.

Phool Rani v. Naubat Rai Ahluwalia AIR 1973 SC 2110, the landlord filed

an ejectment application under Section 14(1)(e) of the Delhi Rent Control

Act and eviction of the tenant was sought on the ground that the premises

were required by the plaintiff "for occupation as a residence for himself and

members of his family". The Additional Rent Controller dismissed the

application on a preliminary ground that the notices to quit were not valid,

without examining the case on merits. The plaintiff died during the

pendency of the appeal preferred by him and his heirs were substituted. The

case was remanded and the Rent Controller passed an order of eviction. In

appeal a contention was raised that the right to sue did not survive to the

heirs of the plaintiff, which was rejected by the Rent Control Tribunal but

was accepted in appeal by the High Court. This court held that different

result may follow according to the stage at which the death occurs. One of

the situations considered in para 13 of the reports is as under :

"(i) 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."

With regard to this category of cases it was held that the estate is

entitled to the benefit which, under a decree, has accrued in favour of the

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plaintiff and, therefore, the legal representatives are entitled to defend

further proceedings, like an appeal, which constitute a challenge to that

benefit. Even otherwise this appears to be quite logical. In normal

circumstances after passing of the decree by the trial Court, the original

landlord would have got possession of the premises. But if he does not and

the tenant continues to remain in occupation of the premises it can only be

on account of the stay order passed by the appellate Court. In such a

situation, the well known maxim 'actus curiae neminem gravabit' that 'an

act of the Court shall prejudice no man' shall come into operation.

Therefore, the heirs of the landlord will be fully entitled to defend the

appeal preferred by the tenant and claim possession of the premises on the

cause of action which had been originally pleaded and on the basis whereof

the lower Court had decided the matter and had passed the decree for

eviction. However in regard to the case before the court it was held that the

requirement pleaded in the ejectment application on which the plaintiff

founded his right to relief was his personal requirement and such a personal

cause of action must perish with the plaintiff. On this ground it was held

that the plaintiff's right to sue will not survive to his heirs and they cannot

take the benefit of the original right to sue.

11. In Shantilal Thakordas v. Chimanlal Maganlal Telwala 1976 (4) SCC

417, a larger Bench overruled the decision rendered in Phool Rani v. Naubat

Rai Ahluwalia (supra) in so far it held that the requirement of the occupation

of the members of the family of the original landlord was his personal

requirement and ceased to be the requirement of the members of his family

on his death. The court took the view that after the death of the original

landlord the senior member of his family takes his place and is well

competent to continue the suit for eviction for his occupation and

occupation of the other members of the family. Thus, this decision held that

the substituted heirs of the deceased landlord were entitled to maintain the

suit for eviction of the tenant. The ratio of this decision by larger Bench

does not in any manner affect the view expressed in Phool Rani (supra) that

where the death of the landlord occurs after a decree for possession has been

passed in his favour, his legal representatives are entitled to defend further

proceedings like an appeal and the benefit accrued to them under the decree.

In fact, the ratio of Shantilal Thakordas (supra) would reinforce the aforesaid

view. There are several decisions of this Court on the same line. In

Kamleshwar Prasad v. Pradumanju Agarwal 1997(4) SCC 413 it was held

that the need of the landlord for premises in question must exist on the date

of application for eviction, which is the crucial date and it is on the said date

the tenant incurred the liability of being evicted therefrom. Even if the

landlord died during the pendency of the writ petition in the High Court, the

bona fide need cannot be said to have lapsed as the business in question can

be carried on by his widow or any other son. In Gaya Prasad v. Pradeep

Srivastava 2001 (2) SCC 604 it was held that the crucial date for deciding as

to the bonafides of requirement of landlord is the date of his application for

eviction. Here the landlord had instituted eviction proceedings for the bona

fide requirement of his son who wanted to start a clinic. The litigation

continued for a long period and during this period the son joined Provincial

Medical Service and was posted at different places. The subsequent event

i.e. the joining of the service by the son was not taken into consideration on

the ground that the crucial date was the date of filing of the eviction petition.

Similar view has been taken in G.C. Kapoor v. Nand Kumar Bhasin 2002

(1) SCC 610. Therefore, the legal position is well settled that the bona fide

need of the landlord has to be examined as on the date of institution of

proceedings and if a decree for eviction is passed, the death of the landlord

during the pendency of the appeal preferred by the tenant will make no

difference as his heirs are fully entitled to defend the estate.

12. The High Court in the present case no doubt noticed the decisions

rendered in Phool Rani (Supra) and Shantilal Thakordas (supra), but chose

to rely upon a decision by two Judge Bench rendered in P.V. Papanna v. K.

Padmanabhaiah 1994(2) SCC 316. In this case the trial Court had passed a

decree for eviction which was challenged by the tenant by filing a revision in

the High Court which was dismissed but four years time was granted to

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vacate the premises. The special leave petition preferred by the tenant was

also dismissed. During the pendency of this period of four years, the

landlord died leaving a will in favour of his brothers. When the tenant did

not vacate the premises after the expiry of four years, the appellants applied

for execution of the decree. The execution petition was allowed by the trial

Court and order for eviction was passed but the order was reversed by the

High Court in a revision filed by the tenant on the ground that the cause of

action did not survive on the death of the landlord and the appellants

(legatees \026 claiming as legal representatives of the deceased landlord) could

not execute the decree for eviction which was purely personal. After

examining several earlier decisions, the Court held as under :

"18. For the foregoing discussion, we must hold that events

which take place subsequent to the filing of an eviction petition

under any Rent Act can be taken into consideration for the

purpose of adjudication until a decree is made by the final court

determining the rights of the parties but any event that takes

place after the decree becomes final cannot be made a ground

for reopening the decree. The finality to the dispute

culminating in the decree cannot be reopened by the executing

court for readjudication on the ground that some event or the

other has altered the situation. As a corollary thereto it must

also be held that once the decree becomes final it became a part

of the estate of the landlord and therefore the appellants as legal

representatives of the deceased landlord are entitled to execute

the same."

13. The limited question for consideration in this case was whether a

decree which had attained finality would become unexecutable on account

of death of the landlord and this question was answered in favour of the

landlord and against the tenant basically on the principle that the excecuting

court cannot go behind the decree. For the decision of the appeal it was

wholly unnecessary to examine the question as to the effect of death of the

landlord during the pendency of the appeal preferred by the tenant after a

decree for eviction has been passed. The decisions rendered in Phool Rani

(Supra) and Shantilal Thakordas (supra) were not brought to the notice of

the Bench. We are, therefore, of the opinion that the observations made in

the aforesaid case that "events which take place subsequent to the filing of

an eviction petition under any Rent Act can be taken into consideration for

the purpose of adjudication until a decree is made by the final Court

determining the rights of the parties", which are more in the nature of obiter

do not represent the correct legal position.

14. Sub-section (1) of section 12 of the Act says "no suit shall be filed in

civil court against a tenant for his eviction\005\005.." The language employed

does not say "no decree shall be passed\005\005\005\005" So the bar created is

against filing of the suit except on one of grounds enumerated in clauses (a)

to (p) of the sub-section. Therefore what is to be seen is whether the suit

was validly filed i.e. whether on the date of filing of the suit one of the

grounds was made out. A suit validly filed cannot be scuttled or held no

longer maintainable in absence of any specific provision to that effect.

Therefore the principle that "the need of the landlord must exist till the

decree for eviction is passed by the last court and attains finality" can even

otherwise have no application here in view of the express language used in

the section.

15. As the preamble shows the Madhya Pradesh Accommodation Control

Act, 1961 has been enacted for expeditious trial of eviction cases on the

ground of bona fide requirement of landlords and generally to regulate and

control eviction of tenants. If the subsequent event like the death of the

landlord is to be taken note of at every stage till the decree attains finality,

there will be no end to litigation. By the time a second appeal gets decided

by the High Court, generally a long period elapses and on such a principle if

during this period the landlord who instituted the proceedings dies, the suit

will have to be dismissed without going into merits. The same thing may

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happen in a fresh suit filed by the heirs and it may become an unending

process. Taking into consideration the subsequent events may, at times, lead

to rendering the whole proceedings taken infructuous and colossal waste of

public time. There is no warrant for interpreting a Rent Control legislation

in such a manner the basic object of which is to save harassment of tenants

from unscrupulous landlords. The object is not to deprive the owners of

their properties for all times to come.

16. There is another aspect of the matter which needs consideration.

After the case had been remanded, the plaint had been amended and the need

of the sons had been set up who had all attained majority by that time. The

Courts thereafter proceeded to decide the controversy on the basis of the

need of the sons and the lower appellate Court, after finding their need to be

bona fide, passed a decree for eviction in their favour. In the second appeal

preferred by the tenant, the High Court, instead of examining the issues on

the basis of which the case had been decided, went on to hold that on

account of death of Girdhari Lal, the need set up by him came to an end and

on that finding dismissed the suit. The parties having amended their

respective pleadings and the two Courts below having decided the matter on

such amended pleadings and the evidence adduced thereon, it was wholly

impermissible on the part of the High Court to examine the question as to

the effect of death of the original plaintiff and thereafter to dismiss the suit

on the finding that his need having come to an end, the suit ought to have

been dismissed. It is well settled that when amendment is allowed, the

proceedings have to be decided on the basis of such amended pleadings. We

are, therefore, of the opinion that the view taken by the High Court is wholly

illegal.

17. The appeals are accordingly allowed with cost. The judgment and

decree passed by the High Court is set aside and that of the Additional

District Judge decreeing the suit for eviction is restored.

18. Learned counsel for the respondents (tenants) made a prayer that they

may be granted some time to vacate the premises. Shri K. Ramamurthy,

learned senior counsel for the appellants has very fairly stated that the

respondents may be given four months' time to vacate the premises. In

view of this statement, we grant four months' time to the respondents to

vacate the premises subject to their filing the usual undertaking within one

month in the trial Court.