P.K. Mohanti, J.
1. An order of eviction of the petitioner from a shop-room, made under Section 7 of the Orissa House Rent Control Act, 1967, is under challenge in this writ application.
2. One Sibaram Sahu filed the application for eviction of the petitioner on the sole ground that he wanted to use the room for running a business in detergents and chemicals. He died during the pendency of the proceeding and opposite parties 1 to 3 were substituted in his place.
3. The case of the petitioner-tenant was that the landlord demanded higher rent to which he did not agree. Hence, the petition for eviction was filed on false grounds.
4. The learned House Rent Controller passed an order of eviction on the ground of bona fide requirement of the landlord. On appeal, the order of eviction was confirmed by the learned Chief Judicial Magistrate.
5. The only question urged in this writ application is that the petitioner-landlord having died during the pendency of the proceedings the right to sue did not survive to the legal representatives. The argument on behalf of the petitioner-tenant is based on the Roman maxim 'actio personalis moritur cum persona' a personal right of action dies with the person. It is contended that the requirement of the premises being personal to Sibaram Sahu who made the application for eviction the cause of action for continuing such a personal action does not survive to his legal representatives.
6. Sub-section (4) of Section 7 of the Orissa House Rent Control Act, 1967, provides as follows:
'The landlord may, subject to the provisions of this Act, apply to the Controller for an order directing the tenant to put him in possession of that house, if he requires the house in good faith for the occupation or use of himself, any member of his family or any person or persons for whose benefit the house is held by him.'
Thus, it appears that a tenant can be evicted on the ground that the landlord requires the house for the use of any member of his family or any person for whose benefit the house was held by him.
7. It is always a question of fact whether the right to sue in a given case survives to the heirs or not. This depends on the consideration as to whether the relief sought can be availed by the legal representatives. It may be a different matter that in any particular case the sole ground on which the eviction was sought may be entirely personal to the landlord and may be of such a nature as would not survive him. In such a case the personal cause of action must perish with the death of the landlord.
8. In the present case both the Courts below have concurrently found that the ground on which the eviction was sought by Sibaram Sahu was to start a business for his grandson (opp. party No. 2) in whose favour he had executed a Will. Opposite Party No. 2 had taken training for establishing industries and after completing his training he decided to open a chemical industry taking loan from the Government. But he could not get loan from the Government and was compelled to open a Sweet Meat Stall in the entrance room of the premises. He wanted to shift his Sweet Meat Stall to the rented premises. In the notices (Exts. B/l, B/2 and B/3) served on the petitioner-tenant prior to the initiation of the proceeding for eviction it was printed in the letter-head as 'Indian Detergents and Chemicals, Proprietor Sri Priyadarsi Panigrahi, Aska' and the tenant was asked to vacate the room as it was required for the said Priyadarsi Panigrahi. On a consideration of the evidence, both oral and documentary, the authorities below concurrently found that the original landlord Sibaram Sahu had required the premises for the use of opp. party No. 2. In view of the provisions of Sub-section (41 of Section 7 of the Act the authorities below were justified in holding that the right to evict the tenant from the rented premises did not come to an end with the death of the landlord who filed the application for eviction.
9. It is needless to state that the relief under Article 226 of the Constitution is discretionary and unless it has resulted in manifest injustice or irreparable loss or injury there is no justification for interference.
10. We see no merit in this writ application and it is accordingly dismissed, but in the circumstances without any order as to costs.
G.B. Patnaik, J.