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Permanand and ors. Vs. Abdul Kadir and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 421 of 1966
Judge
Reported inAIR1973Raj303; 1973()WLN36
ActsCode of Civil Procedure (CPC) , 1908 - Order 7, Rule 7
AppellantPermanand and ors.
RespondentAbdul Kadir and anr.
Appellant Advocate S.M. Juniwal, Adv.
Respondent Advocate D.P. Gupta, Adv.
DispositionAppeal allowed
Cases ReferredPamandas v. Mst. Lachhmi Bai
Excerpt:
rajasthan premises (control of rent & eviction) act, 1950 - section 13(1)(h)--suit for eviction on ground of bonafide personal necessity--landlord sells property during pendency of appeal--held, basis of a suit is materially changed and it is fruitless to continue litigation.;personal necessity is a thing which is personal to a party & the necrssity of the transferor and the transferee may not coincide. therefore, if the transfer has resulted in the plaintiff landlord having no longer any necessity for the suit premises and the transferee does not have the identical or the same necessity then it will be a fruitless exercise to continue the litigation, the context or the basis of such litigation having undergone a material change. - .....for an amount of rs. 15/15/- by way of arrears of rent and for eviction of the defendants from the suit premises.3. aggrieved by the judgment and decree of the learned munsif the tenants went up in appeal to the court of the district judge, jaipur city, who assigned the appeal for disposal to the learned senior civil judge no. 3, jaipur city. the learned senior civil judge dismissed the defendants' appeal and affirmed the judgment and decree of the first court.4. it is in these circumstances that the tenants have come in further appeal to this court.5. on 18-12-1972, learned counsel for the appellants made an application under order 7, rule 7, read with section 151, civil procedure code for taking note of certain additional facts that had come into existence after the commencement of the.....
Judgment:

Kan Singh, J.

1. This is a tenants' second appeal directed against the appellate judgment and decree of the learned Senior Civil Judge No. 3, Jaipur City in a suit for arrears of rent and eviction.

2. The subject-matter of the litigation was a 'Nohra' used as a stable. It was known as 'Nawab Sahib-Ka-Nohra'. The defendants had taken this 'Nohra' on a monthly rent of annas 4. The suit was brought by the plaintiff-respondents for eviction of the defendant-appellants inter alia on the ground of personal necessity. The learned Munsif, before whom the suit was filed, decreed the suit for an amount of Rs. 15/15/- by way of arrears of rent and for eviction of the defendants from the suit premises.

3. Aggrieved by the judgment and decree of the learned Munsif the tenants went up in appeal to the Court of the District Judge, Jaipur City, who assigned the appeal for disposal to the learned Senior Civil Judge No. 3, Jaipur City. The learned Senior Civil Judge dismissed the defendants' appeal and affirmed the judgment and decree of the first court.

4. It is in these circumstances that the tenants have come in further appeal to this Court.

5. On 18-12-1972, learned counsel for the appellants made an application under Order 7, Rule 7, read with Section 151, Civil Procedure Code for taking note of certain additional facts that had come into existence after the commencement of the litigation. It was submitted in the application that the suitwas filed by respondent No. 1 Abdul Qadir on the ground of bona fide personal necessity. The matter had come in appeal before the learned Senior Civil Judge No. 3, Jaipur City, but during the pendency of the appeal the plaintiff-respondents had made an agreement to sell the suit premises in favour of Khandal Vipra Vidyalaya, Jaipur. This fact was brought to the notice of the learned Senior Civil Judge and a prayer was made for permission to lead additional evidence for satisfying the Court that the so-called bona fide personal necessity of the plaintiff-respondent for the premises was no longer subsisting. The learned Senior Civil Judge, however, did not accept this request of the appellants and dismissed the appeal. The appellants proceed to say that after the filing of the second appeal in this Court the plaintiff-respondent had sold the suit premises by a registered sale deed dated 7-8-67 in favour of the said Khandal Vipra Vidyalaya, Jaipur. A certified copy of the registered sale deed has also been filed along with the application.

This application has been opposed by learned counsel for the plaintiff-respondent. It is, however, admitted that the property has been sold by the plaintiff-respondent as alleged by the defendant-appellants. Learned counsel for the appellants has, therefore, canvassed that as the circumstances had materially changed the plaintiff-respondent cannot be said to have any necessity whatsoever for the suit premises and consequently the appeal should be allowed. On the other hand, learned counsel for the respondent submits that this litigation can still be carried on by the plaintiff-respondent and the transfer of the property should not affect the position. Learned counsel for the respondent placed reliance on Pamandas v. Mst. Lachhmi Bai, 1962 Raj LW 629 = (AIR 1963 Raj 35). In this case Modi, J., repelled a contention which was sought to be advanced on the basis of events that had subsequently happened in the case. In doing so he observed:

'The proper way to decide a contention of this kind would, in my opinion, be to see whether plaintiffs stood in bona fide and reasonable necessity to occupy the suit premises at the date of the suit, or, at the most, while the matter was being investigated in the trial court; but it would be scarcely right for this Court in deciding this appeal to take into consideration the circumstances which have admittedly arisen after the present second appeal was filed in this Court.'

The facts in the case before Modi, J., were that the suit house was declared an evacuee property under the Administration of Evacuee Property Act, 1950, and the defendant Lilaram was admitted as a tenant in the house by the Custodian. Thereafter the plaintiffs purchased the property at a departmental sale and obtained the sale certificateon 14-8-58. It was mentioned in the sale certificate that it would take effect from 9-6-55. The plaintiffs thereafter gave the defendant a notice to quit on 9-12-58 and then filed the suit for ejectment on 29-6-59, The suit was brought on a number of grounds including the one of reasonable and bona fide necessity for the suit premises. The defendant resisted the suit. It was denied that the plaintiffs had any reasonable and bona fide necessity for the house and it was further contended that the suit was not maintainable on account of a notification under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 which gave immunity from ejectment for the period of two years from the date of transfer. Both the lower courts decided the suit in favour of the plaintiffs. The principal point that was argued was whether the defendant could not be ejected for a period of two years from the date of the sale certificate. Before Modi, J., it was argued that during the pendency of the second appeal certain other accommodation had been allotted to the plaintiffs by the Managing Officer and, therefore, there was no longer a bona fide personal necessity for the suit premises. This contention was repelled.

6. In the present case the distinguishing feature is that the plaintiff-respondent has ceased to be the owner of the property or for that matter to have any right, title or interest in the suit property. In the case before Modi, J., the plaintiffs continued to remain the owners of the property. If there is change of this character taking place after the commencement of the litigation then it will be in consonance with justice to permit the facts to be brought on record and to decide the matter in the light of such facts. It is true, in spite of a transfer a party can continue the litigation for the benefit of the transferee and in an appropriate case the mere fact that the subject-matter of the suit has been transferred by a party may not disentitle him to continue the proceedings, but I am afraid personal necessity is a thing which is personal to a party and the necessity of the transferor and the transferee may not coincide. Therefore, if the transfer has resulted in the plaintiff landlord having no longer any necessity for the suit premises and the transferee does not have the identical or the same necessity then it will be a fruitless exercise to continue the litigation, the context or the basis of such litigation having undergone a material change. In the present case the plaintiff-respondent has admittedly transferred the property, and it has been stated at the bar that the transferee has himself filed a separate suit for the eviction of the defendant-appellants from the suit premises. There is, therefore, no point in continuing the present litigation.

7. I, therefore, allow the application of the defendant-appellants dated 18-12-72 and taking note of the facts stated therein Iaccept this appeal, set aside the judgment and decree of the court below and dismiss the plaintiff's suit. Learned counsel for the plaintiff-respondent admits that arrears of rent have already been paid. The parties are left to bear their own costs throughout.


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