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Shama Banu and ors. Vs. Jagadish Parshad and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 57 of 1974
Judge
Reported inAIR1975Delhi164
ActsDelhi Rent Control Act - Sections 14 (1)
AppellantShama Banu and ors.
RespondentJagadish Parshad and ors.
Cases Referred(See Phool Rani v. Naubat Rai Ahluwalia
Excerpt:
.....of better economic use of the property and its development to increase its profitability to the landlord directly arises under clause (g). the court is not concerned with the condition of the premises as that is the subject-matter of clause (f) to the proviso to sub-section (1) of section 14: see kailash kumar v. no order for the recovery of possession of any premises shall be made on the ground specified in clause (g) of the proviso to sub-section (1), unless controller is satisfied that the proposed reconstruction will not radically alter the purpose for which the premises were let or that such radical alteration is in the public interest, and that the plans and estimates of such reconstruction have been properly prepared and that necessary funds for the purpose are available with..........one was that jagdish parshad and raiinder kumar sold their interest in the said property to abdul qadir and abdul majid on august 25, 1971.6. on september 8, 1971, abdul qadir and abdul majid made an application under order 22, rule 10 of the code of civil procedure to the tribunal for their names being substituted in place of previous landlords who were the original respondents nos. 1 and 2 to the appeal. the application was allowed later on. the names of abdul qadir and abdul majid instead of being substituted were added to the array of the respondents on february 5, 1973, by the tribunal. they are now respondents 3 and 4 before me.7. the other event was that during the pendency of the appeal the tenant gul mohd died on december 31, 1972. he left behind a widow and eight.....
Judgment:

1. This is an appeal against the order of the Rent Control Tribunal dated January, 14, 1974.

2. The facts are these. On October 18, 1960, Jagdish Parshad and Rajinder Kumar, landlords owners, filed an application against one Gul Mohd for his eviction from a part of the property bearing No. 1485, Gali Chuleh Wali, Sadar Bazar. Delhi Gul Mohd was a tenant under them on a monthly rent of Rs. 4/-. The sole ground of eviction was clause (9) to the proviso to Section 14(1) of the Delhi Rent Control Act 1958 ('the Act') which is in these terms:

'that the premises are required bona fide by the landlord for the purpose of building or rebuilding or making thereto any substantial additions or alterations and that such building or rebuilding or addition or alteration cannot be carried out without the premises being vacated;'

3. The tenant contested the claim. The rent controller dismissed the petition on September 4, 1961. The landlords went in appeal to the tribunal. The tribunal dismissed the appeal. The landlords thereupon preferred a second appeal to this Court. On February 3, 1966, their appeal was accepted and the case was remanded to the Rent Controller. On April 5, 1971, the Controller passed an order of eviction against the tenant on the ground mentioned in clause (g) to the proviso to Section 14(1).

4. On May 27, 1971, the tenant filed an appeal in the rent control tribunal against the order of eviction.

5. During the pendency of the appeal two important events happened. One was that Jagdish Parshad and Raiinder Kumar sold their interest in the said property to Abdul Qadir and Abdul Majid on August 25, 1971.

6. On September 8, 1971, Abdul Qadir and Abdul Majid made an application under Order 22, Rule 10 of the Code of Civil Procedure to the tribunal for their names being substituted in place of previous landlords who were the original respondents Nos. 1 and 2 to the appeal. The application was allowed later on. The names of Abdul Qadir and Abdul Majid instead of being substituted were added to the array of the respondents on February 5, 1973, by the tribunal. They are now respondents 3 and 4 before me.

7. The other event was that during the pendency of the appeal the tenant Gul Mohd died on December 31, 1972. He left behind a widow and eight children. They made an application for being brought on the record in place of the deceased appellant-tenant. Their application was allowed on August 13, 1973.

8. A preliminary objection was raised before the tribunal. It was this. It was said that Gul Mohd.'s contractual tenancy was determined by a notice to quit. He, thereforee, became a statutory tenant. On his death the legal representatives did not inherit the tenancy. They, thereforee, could not be heard in appeal, as the challenge to the ground of eviction was personal to the tenant. The tribunal examined the notice of termination of tenancy and came to the conclusion that the contractual tenancy of Gul Mohd was validly terminated. In consequence of that conclusion the tribunal held that the only defense, which the legal representatives could raise before it, was about the validity of the notice to quit and none other. As to the notice to quit it found that it was a valid notice. Following J. C. Chatterjee v. Sri Kishan Tandon, : [1973]1SCR850 and a Full Bench ruling of this court in Kedar Nath v. Mohani Devi, : AIR1974Delhi171 it decided that the legal representatives could not be heard in opposition to the claim for eviction. The tribunal, thereforee, dismissed the appeal on January 14, 1974. The legal representatives of Gul Mohd now appeal to this Court.

9. In J. C. Chatterjee's case (supra) the Supreme Court held that on the death of a statutory tenant during the pendency of an eviction suit or appeal his legal representatives who are brought on record cannot claim the status of a tenant. The only contentions that they can put forward are the contentions appropriate to their representative character and not one which was Personal to the deceased tenant.

10. In that case the landlord brought a suit for ejectment on the ground that premises were bona fide required by him and his family. Munsif granted a decree of ejectment. On appeal the District Judge dismissed the suit. The landlord filed a second appeal in the High Court. During the Pendency of the second appeal the tenant died. His legal representatives were brought on the record. The High Court set aside the order of the District Judge and restored the decree passed by the Munsif. The legal representatives appealed to the Supreme Court. It was held that the defense of want of bona fide requirement by the landlord was personal to the statutory tenant and on his death the same was not open to his legal representatives. The only contention, which they could urge, was about the validity of the notice for the termination of the tenancy. The court said:

'When B. N. Chatterji died, he was only a statutory tenant with a personal right to remain in possession till eviction under the provisions of the Act, and the heirs were incapable of inheriting any estate or interest in the original tenancy. It was also not shown to us that they fell within any other part of the definition of 'tenant' reproduced above. thereforee, the heirs and legal representatives of the deceased B. N. Chatterji could not in their own right claim to be 'tenant' within the meaning of the Act. thereforee, the only contentions that they could put forward in the appeal were the contentions appropriate to their representative character and not one which was personal to the deceased. The contention based on the ground of bona fide requirement by the landlord was Personal to the statutory tenant and on his death the same is not open to his legal representatives.

11. The facts of the present case are entirely different. The distinguishing feature of this case is that the previous landlords respondents 1 and 2 , namely, Jagadish Pershad and Rajinder Kumar sold this property on August 25, 1971, to respondents 3 and 4. viz., Addul Qadir and Abdul Majid respectively. It is they who now claim eviction and threaten to execute the decree which was obtained by their Predecessorsin-interest.'

12. The counsel for the appellants submits that the purchasers Abdul Qadir and Abdul Majid have no right to evict the legal representatives of Gul Mohd. If there was any right that was the right of Jagadish Pershad land Rajinder Kumar. If Jagdish Parshad and Rajinder Kumai had not transferred their interest and had continued to remain the owners of the property the principle laid down in J. C. Chatterji's case (supra) would have come handy to them. On the basis of that authority it could have been argued as was urged before the tribunal that the legal representatives cannot be heard in opposition to the ground of eviction set out in clause (g) as the contention based on the ground of bona fide requirement of the premises for building by the landlord was personal to the statutory tenant and on his death the same was not open to his legal representatives. The sale of the property in dispute by Jagadish Parshad and Rajinder Kumar in favor of Abdul Qadir and Abdul Majid has made all the difference between this case and the case of J. C. Chatterii (supra).

13. The short question, which now arises for decision is this. Are the legal representatives of Gul Mohd. Precluded from urging that the decree obtained by Jagdish parshad ard Rajinder Kumar , Gul Mohd deceased cannot be, executed against them by Abdul Qadir and Abdul Majid Can it be said that this contention was Personal to the statutory tenant and on his death it is not open to his legal representatives In my opinion the reply is in the negative. The short answer is that this defense was not available during the lifetime of Gul Mohd. He died on December 31, 1972. Abdul Qadir and Abdul Majid were added as parties to the appeal on February 5, 1973. thereforee, the legal representatives can now show that they cannot be evicted by Abdul Qadir and Abdul Majid in execution of the decree which was originally passed in favor of Jagdish Parshad and Raiinder Kumar.

14. There is another important point, which is raised in this appeal. Clause (g) says that the claim of the landlord that he requires the building for reconstruction and re-erection must be bona fide, that is, honest in the circumstances and that they have the means to reconstruct them: See Neta Ram v. Jiwan Lal, : AIR1963SC499 .

15. Under clause (g) the requirement is entirely of the landlord. It is personal to him. It is for his benefit. He is allowed to develop his property by the law so that he may make it more profitable for himself as well as serve Public interest by increasing the accommodation or modernizing the Plan of the building. The question of better economic use of the property and its development to increase its profitability to the landlord directly arises under clause (g). The court is not concerned with the condition of the premises as that is the subject-matter of clause (f) to the Proviso to sub-section (1) of Section 14: See Kailash Kumar v. B. S. Raizada, : AIR1973Delhi97 , As was said by the Supreme Court in Panchamal v, Basthi, : [1970]3SCR734 :

'In considering the reasonable and bona fide requirement of the landlord under this clause, the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favor of the landlord. In our opinion, it is not necessary that the landlord should go further and establish under this clause that the condition of the building is such that it requires immediate demolition. That the condition of the property may be such, which requires immediate demolition, is emphasized in clause (k) of the proviso (of Mysore Rent control Act). When such a specific provision has been made in clause with condition of the building cannot come into the picture nor could it have been dealt with again in clause (j). So the requirement under clause (J) is that of the landlord and cannot have any reference to the building.'

16. It appears to me that the requirement under clause (g) was personal to the previous landlords Jagdish Parshad and Rajinder Kumar. The Previous landlords have ceased to be the owners of the house. The legal representatives of the tenant cannot be asked to vacate by Abdul Qadir and Abdul Majid.

17. That the requirement under clause (g) is that of the landlord who brings a claim for eviction is clear from that clause and sub-section (8) of Section 14. The said sub-section is in these terms:

'No order for the recovery of possession of any premises shall be made on the ground specified in clause (g) of the proviso to sub-section (1), unless Controller is satisfied that the proposed reconstruction will not radically alter the Purpose for which the Premises were let or that such radical alteration is in the public interest, and that the plans and estimates of such reconstruction have been Properly prepared and that necessary funds for the purpose are available with the landlord.'

18. There are several factors, which are entirely personal to a particular landlord. The first is his ability to reconstruct the premises. He has to show that he has got the necessary finances for that purpose. This ability to construct the premises could be viewed only in relation to Jaqdish Parshad and Rajinder Kumar. Abdul Qadir and Abdul Majid have not proved before the controller that they also have the necessary funds for the purpose.

19. The previous owners got plans sanctioned for the Purpose of rebuilding. They wanted to erect a double storey building. They decided to raise a new construction of a particular model. The present purchasers may decide otherwise. They may like to erect a multi-storied building for all we know. If they want to erect a building which is different from one which was Proposed by the previous owners the controller will have to examine afresh the question whether the proposed reconstruction will not radically alter the purpose for which the premises were let and that such radical alteration is in the public interest.

20. Section 20 of the Act also shows that it is the obligation of that landlord who has got an eviction order to commence the work of building or rebuilding within one month from the specified date. If he fails to complete the work within a reasonable time or having completed the work, fails to place the tenant in occupation in accordance, with sub-section (2), the controller may on an application made to him in this behalf by the tenant order the landlord to place the tenant in occupation of the premises or part thereof or to pay to the tenant such compensation as the controller thinks fit. His obligation is to put the tenant back in occupation on completion of the building if the tenant has elected to go back to the premises on reconstruction. These are not the obligations of Abdul Qadir and Abdul Majid under the order of the rent controller. The upshot of the discussion is that the new landlords Abdul Qadir and Abdul Majid cannot evict the legal representatives as the requirement of building or rebuilding was personal to the previous landlords and since they ceased to be the owners that requirement came to an end when they sold the Property to Abdul Qadir and Abdul Maiid. If the new landlords wish to build or rebuild they will have to file their own eviction petition under clause (g) and make their own claim against the tenant.

21. The central question is whether the purchasers, respondents 3 and 4, can claim the benefit of the original right to sue in their capacity as the landlords. The answer to this problem is to be found in the pleadings of the previous landlords. Their pleadings will reveal the true nature of the right asserted by them in the ejectment Proceedings. In their ejectment application they said:

'The proposed reconstruction will not radically alter the purpose for which they were let. The premises are very old and its reconstruction is in Public interest. The plans have been sanctioned and necessary funds are available for the purpose with the petitioners.'

22. Thus the requirement pleaded in the ejectment application and on which the previous landlords founded their right to relief was their personal requirement. It was a cause of action personal to them. The order of eviction, which was passed in their favor by, the controller ensured for their personal benefit.

23. The controller has to see whether the requirement of the landlord is bona fide. Bona fides is a condition of the mind. The controller has to be satisfied of the genuineness of the claim of the landlord. It can be predicated of a particular landlord that his need is genuine. Similarly the means of the particular landlord to rebuild the premises have to be seen. What is predicative of landlord A is not necessarily predicative of the transferee landlord B.

24. Mr. Sultan Singh on behalf of Abdul Qadir and Abdul Majid has urged that the legal representatives have no right to urge that the ground in clause (g), which was available to the previous landlords, is no more available to the present landlords. He placed reliance on J. C. Chatterji's case (supra). That case as I have said, is distinguishable from the present one.

25. Next he contended that clause (g) and sub-section (8) are in no sense personal to the landlord. I do not agree. I have given my reasons for holding that the right to evict the tenant under clause (g) is personal to a particular landlord and is incapable of being transmitted to a purchaser of the property.

26. The counsel then submitted that the case should be remanded to the tribunal in order to find out whether Abdul Qadir and Abdul Maiid have the necessary funds with them for the Purpose of construction. I cannot accept this submission. The order of eviction under clause (g) was for the benefit of Jagdish Parshad and Rajinder Kumar. They are no more the owners. They had the right to evict the present legal representatives. That right has now come to an end. The benefit of the order of eviction passed in favor of Jagdish Parshad and Rajinder Kumar cannot be transferred or assigned to Abdul Qadir and Adbul Maiid on the view I have taken in his case.

27. If respondents 3 and 4 are permitted to continue the proceedings, the lis will assume a complexion wholly beyond the compass of the original cause of action. The requirement of respondents 3 and 4 may be fundamentally different from that of the previous landlords and an examination of facts and circurnstances in regard thereto will open a new field of inquiry. In my opinion they cannot continue the proceedings and claim the benefit of the original right to sue:(See Phool Rani v. Naubat Rai Ahluwalia, : [1973]3SCR679 ).

28. Lastly, it was said that the order adding the purchasers as parties to the appeal was made on February 5, 1973, It was an appealable order, the counsel said. Since no appeal was preferred it has become final, it was contended. This is a specious argument, which cannot prevail. When the tribunal on the application of Abdul Qadir and Abdul Maiid added them as Parties to the appeal an objection was taken by the legal representatives. The tribunal said that this question will be decided in the appeal itself. The tribunal ought to have decided this objection at the time of deciding the appeal. But at that time this point does not appear to have been raised before it. It has now been raised before me.

29. I allow the appeal and set aside the orders of the rent controller and the tribunal. The eviction petition is dismissed. In the circumstances I leave the parties to bear their own costs.

30. Appeal allowed.


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