C.M. Lodha, J.
1. These are two connected appeals filed by the plaintiff-landlord Mishrilal against two sets of tenants in respect of different premises in the same building, situated in 'C' Scheme, Jaipur.
2. Both the suits were instituted by Motilal and one of his sons Ramkumar on identical grounds, viz. (i) that the premises in question were required by the plaintiffs for their own occupation as well as for occupation of their family and (ii) that the premises had been unlawfully sublet by the tenants. The suit against Jankinandan was dismissed and the judgment and decree by the trial court were upheld by the District Judge, Jaipur City, Jaipur, whereas the suit against Hariprasad was decreed by the trial court, but dismissed, on appeal by the defendant, by the District Judge, Jaipur. Hence both these appeals by the plaintiffs.
3. During the pendency of these appeals plaintiff No. 1 Motilal died on 27-7-1973, and an application was made on behalf of the legal representatives of Motilal through their counsel Shri R. S. Khejariwal that they may be ordered to be substituted as appellants in place of Motilal. This application has not been decided so far. When the learned counsel for the appellants started arguing the case on merits, a preliminary objection was raised by Mr. Bhargava on behalf of the respondents that Motilal having expired during the pendency of these appeals, the cause of action perished with him and does not survive. It has been urged by the learned counsel that the dismissal of the two suits must be maintained on the simple ground that the right to sue does not survive on the death of the plaintiff Motilal. Tn support of his contention he has relied on Phool Rani v. Naubat Rai, AIR 1973 SC 2110.
4. Mr. Agarwal, on the other hand, has argued that the facts in the case of Smt. Phool Rani (supra) are distinguishable and the principle laid down therein has no application to the present case. He has also pressed the application filed by the legal representatives of the deceased plaintiff Motilal, and has submitted that since the lease deed has been executed in favour of deceased Motilal as well as the co-plaintiff Ram Kumar, all the legal representatives of Motilal may be ordered to be brought on record in place of deceased Motilal.
5. The preliminary objection raised by Mr. Bhargava is very much connected with the prayer made by the legal representatives of Motilal in their application dated 26-9-1973, and I, therefore, propose to dispose of the preliminary objection as well as the said application dated 26-9-1973 by a single order.
6. In Smt. Phool Rani's case AIR 1973 SC 2110 (supra) there was one plaintiff who sought possession of the premises from the tenant on the ground that the premises were required by the plaintiff for occupation as a residence for himself and members of his family. The plaintiff died during the pendency of the appeal and on an objection by the tenant-defendant the High Court took the view that the right to sue did not survive to the heirs of the plaintiff and on that ground the prayer of the legal representative of the plaintiff for ejectment was dismissed leaving it open to the heirs to bring a fresh proceeding founded on their own requirements. The correctness of this decision was challenged by the plaintiff's heirs in appeal before their Lordships of the Supreme Court and their Lordships were pleased to hold that the requirement pleaded in the ejectment application that the premises were required for occupation as a residence for the plaintiff himself and members of his family was a personal requirement of the plaintiff and the mere fact that the plaintiff had pleaded that the premises were also required for members of his family did not make the requirement any the less a personal requirement of the plaintiff. It was held 'that the members ofhis family must reside with him is his requirement, not theirs.' In this view of the matter it was held that it was a personal cause of action which must perish with the plaintiff. The reason which persuaded their Lordships to take this view was that if the heirs were permitted to continue the proceedings, the lis would assume a complexion wholly beyond the compass of the original cause of action, and that without a fundamental alteration of the pleadings, the appellants could not continue the proceedings. However, regarding the 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, it was held by their Lordships that the legal representatives are entitled to defend further proceedings like an appeal which constitute a challenge to the benefit accrued to them under the decree.
7. Thus in view of the decision of the Supreme Court it is amply clear that in case of a suit instituted by the sole plaintiff for ejectment against a tenant for occupation as a residence for himsetlf and members of his family, if the plaintiff dies during the pendency of the appeal in such circumstances as if he had died during the pendency of the suit, the right to sue would not survive and the heirs of such a plaintiff have no remedy left to them except to file a fresh suit. But the facts of the present case are distinguishable. The suit has been instituted by two plaintiffs viz. Motilal deceased and one of his sons Ram Kumar. The lease deed has been admittedly executed in favour of Motilal as well as Ramkumar. The allegation contained in para No. 5 of the plaint is that the suit premises are required by the plaintiffs for their own residence as well as for the residence of their family and then it has been further pleaded that Mishrilal son of plaintiff No. 1 and brother of plaintiff No. 2, though cured of tuberculosis of lungs, is still in a weak state of health, and according to medical advice is required to live outside the city in open and healthy surroundings, and, therefore, the premises are required for him. Then again it has been pleaded in the same paragraph that the plaintiff No. 1 Motilal has lost his eye-sight being of extreme old age i.e. 80 years and he cannot walk in the streets where the plaintiffs and their family are residing at present. Lastly, it has been averred that the plaintiff No. 2 Ram Kumar has been selected for Indian Administrative Service, and it would be convenient for him to attend to his duties if he resides in the premises in question instead of in the city house and it would also be in keeping with his status and position to reside in a bungalow outside the city rather than in the city house. Thus it would be clear from what has been stated above that certain allegations for ejectment which go to constitute the cause of action in the suit are common to both the plaintiffs and only one is clearly personal to plaintiff No. 1 Motilal, and that is the requirement based on the personal reasons of Motilal viz. loss of his eye-sight and his extreme old age. That part of the cause of action of the suit undoubtedly is a personal cause of action of Motilal alone and must be taken to have perished with him. But so far as the other allegations are concerned, I am clearly of the opinion that they constitute a cause of action which survives and the other plaintiff Ram Kumar has a right to sue or for the matter of that to proceed with the appeal. The case on hand is therefore taken out of the per-view of the principle laid down by their Lordships in Smt. Phool Rani's case AIR 1973 SC 2110, and I am unable to accept the contention raised on behalf of the respondent that both the appeals must be dismissed on the simple ground that the right to sue does not survive to the surviving plaintiff Ram Kumar.
8. This brings me to the application by the legal representatives of Motilal to be substituted in place of Motilal as appellants. In view of my finding that the cause of action for the suit has not perished and the right to sue survives there is no impediment in the way of the legal representatives of Motilal to come on the record in. place of Motilal deceased for the simple reason that the right to enforce the terms of the lease deed vests jointly in Ramkumar as well as the heirs of Motilal as the lease deed has been executed in favour of both Motilal as well as Ram Kumar.
9. Accordingly, I overrule the preliminary objection, allow the application by the heirs of Motilal dated 26-9-1973 and direct that the heirs of Motilal be substituted as legal representatives of Motilal in place of Motilal. Let the necessary corrections be made on the record of the two cases. The appellants are directed to file corrected cause title in both the cases and the appeals be listed for bearing after a fort-night.
10. Let a copy of this order be placed on the file of each of the two appeals.