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Motia Kaur Vs. Shanti Devi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 86 of 1973
Judge
Reported in1974RLR231
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 11
AppellantMotia Kaur
RespondentShanti Devi
Advocates: N.S. Dass Bahl and; Bawa S.C. Singh, Advs
Excerpt:
.....after his death during the pendency of the proceedings that he had specifically requested in the appeal, it was ruled that there was no such prohibition - accordingly, it was ruled that the objection of counsel that the plea sought to be agitated would not be urged by the tenant, was not sustainable - - rani's case (supra). in this case, like the present one, the landlord had claimed eviction on the ground that the premises was required bona fide by him for occupation as residence for himself and for members of his family. on page 2112 of the report, the court observed :thus, the requirement pleaded in the ejectment application and on which the plaintiff has founded his right to relief is his requirement, or to use an expression which will effectively bring out the real point, his..........his death during the pendency of the proceedings which he has specifically urged in the grounds of appeal. rule 11 of order 41 deals with the power of the appellate court to dismiss the appeal without sending notice to the respondent. rule 12 then provides that unless the appellate court dismisses the appeal under rule 11, it shall fix a date for hearing the appeal. rule 11 does not envisage a partial admittance of the appeal unless the other pleas sought to be agitated by the appellant are duly considered by the court and are negatived by a specific order. in vattipalle eswariah v. vattipalle rameswarayya air 1940 madras 483 a full bench of the madras high court has held that if the appellate court under rule 11 does not dismiss the appeal summarily it must, by virtue of rule 12 (1) fix.....
Judgment:

S.N. Shankar, J.

(1) This second appeal U/S 39 of the Delhi Rent Control Act (hereinafter called the Act) by the tenant is directed against the order of the Rent Control Tribunal accepting the appeal of the respondents and granting an order for recovery of possession of the premises in dispute in their favor.

(2) The husband of respondent No. 1 and father of respondents 2 to 4, Brij Raj Bhagat, was the landlord in respect of premises bearing No. 24-G, Kalhaji, New Delhi, occupied by the appellant as a tenant. On November 20. 1968, Brij Raj Bhagat filed an application for eviction on the ground of personal bona fide need. This application was dismissed by the Additional Rent Controller on June 6, 1970. Aggrieved from this, Brij Raj Bhagat filed an appeal. Oa April 26, 1972, during the pendency of this appeal, Brij Raj Bhagat died. The Rent Control Tribunal imp leaded the present respondents a? the legal representatives of the deceased landlord and by order dated November 23, 1972 accepted the appeal. This order is the subject-matter of this appeal.

(3) In reply to the application for eviction, amongst others, it was contended by the tenant that the landlord was not entitled to an order of eviction in view of section 14(6) as the period of five years had pot elapsed from the date when he acquired the premises but this contention was negatived. In the second appeal to this Court the tenant took several grounds, including the ground that the finding that the landlord was entitled to an order of eviction, in spite of section 14(6), was wrong and also that in any view, after the death of Brij Raj Bhagat, the application for eviction based on the ground of his personal need should have been dismissed. The admitting Bench, admitted the appeal only on the question as to the plea of section 14(6) of the Act

(4) At the time of arguments before me, Shri Bahl, the learned counsel appearing for the tenant, has urged that the Supreme Court in Smt. Phool Rani and others Vs . Naubat Rai Ahluwiia : [1973]3SCR679 has now finally decided that order for eviction on the ground of personal need of the landlord could not be passed if the landlord had died during the pendency of the eviction proceeding. Bawa Shivcharan Singh. appearing for the respondents i.e. legal representatives of the landlord, contended that this plea was not open to the appellant in view of the admitting order.

(5) I have heard the learned counsel for the parties on this question. It is true that the admitting order in terms states that the admission was solely to determine the question of section 14(6) but in my view this does not prevent the appellant from agitating the other question of the subsistence of the need of the landlord after his death during the pendency of the proceedings which he has specifically urged in the grounds of appeal. Rule 11 of Order 41 deals with the power of the appellate court to dismiss the appeal without sending notice to the respondent. Rule 12 then provides that unless the appellate court dismisses the appeal under rule 11, it shall fix a date for hearing the appeal. Rule 11 does not envisage a partial admittance of the appeal unless the other pleas sought to be agitated by the appellant are duly considered by the Court and are negatived by a specific order. In Vattipalle Eswariah v. Vattipalle Rameswarayya AIR 1940 Madras 483 a full Bench of the Madras High Court has held that if the appellate court under rule 11 does not dismiss the appeal summarily it must, by virtue of rule 12 (1) fix a date for hearing 'the appeal' and that there is nothing in either rule 11 or rule 12 to suggest that the Court may admit the appeal in part. To the same effect are the observations in the full Bench decision of the Bombay High Court in Krishnaji Shrinivas Jalvadi v. Madhusa Appansa Ladaba AIR 1934 Bom 207. The admitting order in this case does not refer at all to the other pleas taken by the tenant in the grounds of appeal and is silent on this aspect. The objection of Bawa Shiv Charan Singh, thereforee, that the plea sought to be agitated cannot be urged by the tenant, cannot be sustained.

(6) Coming to the merits of this plea, Bawa Shivcharan Singh frankly conceded that the case was fully covered by the decision of the Supreme Court in Smt. Phool. Rani's case (supra). In this case, like the present one, the landlord had claimed eviction on the ground that the premises was required bona fide by him for occupation as residence for himself and for members of his family. But, before the order for eviction was passed, he had died. On page 2112 of the report, the Court observed : 'Thus, the requirement pleaded in the ejectment application and on which the plaintiff has founded his right to relief is his requirement, or to use an expression which will effectively bring out the real point, his personal requirement. If the ejectment application succeeds-we will forget for a moment that the plaintiff is dead the premises in the possession of the tenant may come to be occupied by the plaintiff and the members of his family but that does not make the requirement plead- ed in the application any the less a personal requirement of the plaintiff. That the members of his family must reside with him is his requirement, not theirs. Such a personal cause of action must perish with the plaintiff.'

(7) This being the law, the Rent Control Tribunal was distinctly in error in coming to the conclusion that cause of action for claim- ing eviction of the appellant survived to the legal representatives after the death of the landlord, Brij Raj Bhagat.

(8) The appellant must, thereforee, succeed on this ground. In this view, it is not necessary to go into the other question as to the scope and effect of section 14(6) of the Act in the facts of this case. Appeal accepted.


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