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PETITIONER: PHUL RANI & ORS.

       Vs.

RESPONDENT: NAUBAT RAI AHLUWALIA

DATE OF JUDGMENT14/03/1973

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. SHELAT, J.M.

CITATION:  1973 AIR 2110            1973 SCR  (3) 679  1973 SCC  (1) 688  CITATOR INFO :  O          1976 SC2358  (1,3,4,5,6)

ACT: Delhi Rent Control Act--S. 14(1)(e)-Whether on the death  of the  plaintiff during pendency of an ejectment  application, the   cause   of   action  would  survive   to   his   legal representatives.

HEADNOTE: The plaintiff after two notices to quit, filed an  ejectment application against the defendant under S. 14 (1) (e) of the Delhi  Rent Control Act 1958.  The possession was sought  on the  ground  of personal requirement.  The  Additional  Rent Controller,  dismissed  the  application  on  a  preliminary ground of invalid notice.  During the pendency of an  appeal against that decision, the plaintiff died.  Appellants 1  to 4  who  are  widow, son and two  married  daughters  of  the deceased,  applied  for being brought on the record  of  the appeal as his legal representatives.  The defendant  opposed that application on the ground, that the son and daughter of a deceased daughter of the plaintiff ought also to have been impleaded  to the application, and since that was not  done, the-  appeal had abated.  The Rent Control Tribunal  allowed these  two, persons also to be impleded as  appellants  :and remanded the ejectment application for a decision on merits. These  heirs are now appellants 5 and 6. The  second  appeal filed  by  the  ’tenant  against the  order  of  remand  was dismissed by the High Court. As  the order of remand passed by the Rent Control  Tribunal was not stayed during the pendency of the second appeal, the Additional  Rent  Controller proceeded  with  the  ejectment appli cation  and  passed an order of eviction  against  the tenant.   The  tenant  appealed against  that  decision  and contended  for the first time that the right to sue did  not survive  to  the heirs of the plaintiff.  The  Rent  Control Tribunal rejected the contention and confirmed the order  of eviction  on merits.  In an appeal, the High Court took  the view  that the right to sue did not survive to the heirs  of the  plaintiff  and on that ground dismissed  the  ejectment application.  The correctness of that decision is challenged by the plaintiffs heirs before this Court.  The question for decision  was whether the cause of action could  survive  to

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his legal representatives.  Dismissing the appeal, HELD  :  (i) In some cases Under the rent  Acts,  the  maxim actio  personalis moritur cum persona has been attempted  to be  applied ’On the death of a necessary party to a suit  or proceeding.   This oft-quoted maxim, however,  is  generally misunderstood.   The plain meaning of that common law  maxim is that a personal action dies with the parties to the cause of  a ction.   In the present case, it is obvious  that  the death  of  the  plaintiff  will  not  cause  the   ejectment proceedings to abate if the right to sue survives.  That  is the  formula  contained in Order 22, Rule 1 of the  Code  of Civil Procedure. [681F-G, 682D] However,  from the pleadings in the  ejectment  application, the  plaintiff  has  founded  his right  to  relief  on  his personal requirement.  So, if the appellants were  permitted to   continue  the  proceedings,  the  lis  will  assume   a complexion  wholly beyond the compass of the original  cause of  action,  and without a fundamental  alteration of  the pleadings. the appellants would not be able to continue  the proceedings.  Therefore, the appeal must fail. [683C] 680 Motilal  Pannalal v. Kailash Narain, A.I.R. 1960  M.P.  134; Amar Nath Bihari v. Jai Dayal Puri 1971 (7) Delhi  Law.Times 363; Smt.  Dhan Devi and Anr. v. Bakshi Ram and Anr., A.  I. R. 1969 Punjab & Haryana 270; Vets Dev v. Sohan Singh & Ors. [1968]  40  Delhi Law Times 392; Dr.   Muhammad  Ibrahim  v. Rehamin Khan & Ors., [1947] 2 M.L.J. 419; and Rameswar Dayal JUDGMENT:

& CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1879  of 1971. Appeal  by special leave from the Judgment and  order  dated May  24, 1971 of the, Delhi High Court at New Delhi in  S.A. No. 178 of 1970. Bishan Narain and 0. N. Mahindroo for the appellant. P.  N. Lekhi and M. K. Garg, for the respondent. The Judgment of the Court was delivered by CHANDRACHUD, J.-The plaintiff, who in a Rent-Act application against his tenant sought possession of certain premises  on the   ground  of  personal  requirement,  died   pending-the application.  The question for decision is whether the cause of  action  would survive to his  legal  representatives  or whether, as contended by the tenant, the application  must abate. On June 28, 1962 a flat at New Rajinder Nagar, New Delhi was leased  by  the plaintiff to the defendant.  On  failure  of the, defendant to comply with two notices to quite plaintiff filed an ejectment application under section 14 ( 1 ) (e) of the  Delhi Rent Control Act, 1958 ("the  Act").   Possession was  sought 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 Additional Rent Controller, Delhi, dismissed the  appli- cation  on the preliminary ground that the notices  to  quit were  not  valid.  Plaintiff filed an  appeal  against  that decision but during its pendency he died on August 22, 1968. Appellants  1  to 4 who are the widow, son and  two  married daughters of the plaintiff applied for being brought on  the record  of  the appeal as his  legal  representatives.   The tenant  opposed that application on the narrow  ground  that the son and daughter of a deceased daughter of the plaintiff ought  also  to have been impleaded to the  application  and

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since  that  was not done, the appeal had abated.   By  its order  dated  December 13, 1968 the Rent  Control  Tribunal, which  was  seized of the appeal allowed these  two  persons also  to  be impleaded as appellants.  By  a  further  order dated  January 2, 1969 the, Tribunal set aside the  decision recorded   by   the  Additional  Rent  Controller   on   the preliminary issue and remanded the eject- 681 ment  application  for  a decision  on  merits.   These  two "heirs" are now appellant 5 and 6. Second appeal 107 of 1969 filed  by  the  tenant  against the  order  of  remand,  was dismissed by the High Court of Delhi on February 20, 1970. As  the order of remand passed by the Rent Control  Tribunal was not stayed during the pendency of the Second Appeal, the Additional  Rent  Controller proceeded  with  the  ejectment application  and  had in the meanwhile passed  an  order  of eviction  against the tenant.  By his judgment  of  February 14,  1969 he held that the plaintiff’s widow (appellant  1), his  son  (appellant  2), the son’s wife  and  three.  minor daughters of that couple required the premises bona-fide for their occupation. The tenant appealed against that decision and contended  for the  first  time  in appeal that the right to  sue  did  not survive  to  the heirs of the plaintiff.  The  Rent  Control Tribunal rejected that contention and confirmed the order of eviction on merits. In  an appeal filed by the tenant (S.A.0. No. 178  of  1970) the High Court of Delhi took the view that the right to  sue did  not survive to the. heirs of the plaintiff and on  that ground  it dismissed the ejectment application,  leaving  it open  to  the heirs to bring a fresh proceeding  founded  on their own requirements.  The correctness of that decision is challenged by the plaintiff’s heirs in this appeal   special leave. The survival of the right to sue on the death of a plaintiff is  a problem that has often to be solved on a  permutation of several facts and circumstances.  But it would be out  of place   in  this  judgment  to  embark  upon   an   abstract disquisition of the question as to in what classes of cases, the   right  to  sue  survives  in  favour  of   the   legal representatives.   In  some cases under the Rent  Acts,  the maxim actio-personalis moritur cum persona has been  attemp- ted  to  be applied on the death of a necessary party  to  a suiit  or  proceeding  but  that  oft-quoted  maxim  is  oft misunderstood.   The plain meaning of that common law  maxim is that a personal action dies with the parties to the cause of action.  Its purport. until sweeping changes were made in the   previous   law  by  the  Law   Reform   (Miscellaneous Provisions) Act, 1934 was that no executor or  administrator could, subject to certain exceptions, sue or be sued for any tort committed against or by the deceased in his  life-time. The action for a tort had to be begun in the joint life-time of the wrongdoer and the person injured. (See Salmond on the Law  of Torts 15th Edn. p 569; Halsbury Laws of England  3rd Edn.  Vol. 16 p. 483 paragraph 985). Nor do we find relevance in the provisions of section 306 of the   Indian  Succession  Act,  under  which   all   demands whatsoever and all. rights to prosecute or defend any action or special proceed- 682 ing existing in favour of or against A person at the time of his  decease,  survive  to  and  against  his  executors  or administrators;  except causes of action for defamation  and assault, or other personal injuries not causing the death of the  party and except also cases "where, after the death  of

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the  party,  the  relief sought could not  be  enjoyed"  or- granting  it  would  be nugatory.  We can  duly  press  into service  and that too indirectly, the analogy of  the  first part  of-the  last exception in an effort  to  find  whether after  the  death of the plaintiff in the instant  case  the relief   sought   could  not  be  enjoyed   by   his   legal representatives. Though the plaintiff died during the pendency of the appeal, it is as if he died during the pendency of the suit  because the suit was dismissed on a preliminary issue concerning the validity  of the notices to quit and was remanded in  appeal for trial on the merits.  It is patent and would be altruism to  say that the death of the plaintiff will not  cause  the ejectment proceedings to abate if the right to sue survives. That is the formula contained in Order 22 Rule 1 of the Code of Civil Procedure, a formula simple in its wording but  not simple  in  its  application.  The "right to  sue"  as  said succinctly  in  Saraj Chandra v. Nani  Mihan(1)  means  ’the right  to bring a suit asserting a right to the same  relief which  the  deceased plaintiff asserted at the time  of  his death".   Thus contracts involving the exercise  of  special skill like a promise to paint a picture do not bind the  the representatives of the promisor nor do they create in them a right that can survive the death of the promisor. The solution to the problem whether the ’appellants can con- tinue  the  proceedings  in  their  capacity  as  the  legal representatives  of the plaintiff lies in the  pleadings  of the plaintiff for those alone can reveal the true nature  of the  right  asserted  to  the  plaintiff  in  the  ejectment proceedings.   In column 18(a) of the ejectment  application the ground for evicting the tenant is stated thus               "The  premises  are required bonafide  by  the               petitioner  for occupation as a residence  for               himself and members of his family and that the               petitioner  has no other  reasonable  suitable               residential accommodation." In column 19, the "other relevant information" is stated  to be  that the plaintiff had a large family consisting of  his wife, son, daughter-in-law and 3 minor grand-daughters,  and that  the family had only 2 rooms in its  possession,  which were wholly inadequate for its requirements. 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 (1) 36 cal. 799 at p. 801. 683 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  pleaded  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 . If   the   appellants  were  permitted   to   continue   the proceedings, the lis will assume a complexion wholly  beyond the compass of the original cause of action.  Indeed, it  is difficult  to see how, without a fundamental  alteration  of the  pleadings, appellants could continue  the  proceedings. Such  an alteration will fall beyond the scope of  amendment of    pleadings,   permissible   under   a   most    liberal interpretation  of  order 6, Rule 17 of the  Code  of  Civil

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procedure.  Plaintiff, who owned the premises, was  entitled under  section  14(1) (e) of the Act to ask  for  possession thereof on the ground that his wife and the other members of his  family  dependent on him must live with  him  but  that there  was not enough space at his disposal  to  accommodate them.  Section 14(1)(e) provides to the extent material  for the present purposes, that the Controller may make an  order for  possession  on the ground "that the  premises  let  for residential  purposes are required bonafide by the  landlord for occupation as a residence for himself or for any  member of  his  family  dependent  on  him,  if  he  is  the  owner thereof........  and that the landlord........ has no  other reasonably  suitable  residential  accommodation".   If  the plaintiff  were alive, the main issues for determination  in the ejectment proceedings would have been : (1) whether  the plaintiff  requires the premises for his occupation and  for the  occupation  of  his wife, son,  daughter-in-law  and  3 grand-children;  (2)  whether the aforesaid  requirement  is bonafide  and  (3)  whether  the  plaintiff  has  no   other reasonably   suitable   residential   accommodation.     The appellants’  emergence in the proceedings will  require  the determination  of  wholly  different  and  distinct  issues. Their  requirements,  not  that of the  plaintiff,  and  the availability   to   them-not  to  the   plaintiff-of   other reasonably suitable residential accommodation will now  form the  centre of conflict.  It is relevant on this  aspect  to remember that amongst the appellants are 2 married daughters of  the  deceased  plaintiff and 2 children  of  a  deceased daughter  of  his.   Their requirement  would  be  basically different  from that of the plaintiff and an examination  of facts and circumstances in regard thereto will open up a new vista  of  inquiry.   The  plaintiff’s  right  to  sue  will thereafter  not  survive to the appellants and  they  cannot glean the benefit of the original right to sue. 684 Several  decisions  were cited before us but  those  falling within the following categories are to be distinguished               (i) 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;               (ii)  cases in which the death of the  decree-               holder  landlord was pleaded as a  defence  in               execution proceedings; and               (iii)  cases in which, not the  plaintiff  but               the defendant-tenant died during the  pendency               of the proceedings and the tenant’s heirs took               the plea that the ejectment proceedings cannot               be continued against them. Cases of the first category are distinguishable because  the decisions  therein are explicable on the  basis,  though-not always  so  expressed, that the estate is  entitled  to  the benefit which, under a decree, has accrued in favour of  the plaintiff  and  therefore  the  legal  representatives   are entitled  to  defend further proceedings,  like  an  appeal, which constitute a challenge to that benefit. In  Motilal  Pannalal  v. Kailash Narain,  (1)  for  example the  .landlord who had obtained a decree for  possession  on the  ground of personal necessity under section 4(g) of  the Madhya Bharat Control of Accommodation Act, 1955 died during the pendency of the appeal filed by the tenant.  It was held that the decree would ensure for the benefit of his son  and widow.   In Amar Nath Bihari v. Jai Dayal Puri(2) the  death of the landlord occurred after the Rent Control Tribunal had

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held  in appeal, reversing (the judgment of the  Controller, that the premises were required by the landlord for the  use of himself and his wife under section 14 (1) (e) of the Act. It  was held that the wife was a member ,of  the  landlord’s family and as "the need of the landlord for the premises was assessed to be both for himself and his wife", the cause  of action  consisted of the need of both and therefore it  sur- vived  to the widow.  The judgment of the High Court in  the instant  case was cited before the learned single Judge  but was distinguished by him on the ground that the requirements of the legal representatives here were not determined by the Controller, prior to the death of the plaintiff.  The  point of  distinction  could  be that the  decree  for  possession passed  in favour of the landlord could be defended  by  his legal representatives for the benefit of his estate. In  Smt.Dhan  Devi and Anr. v. Bakhshi Ram  and  Anr.(3)  an application  for ejectment was filed by the  landlord  under the (1) A.I.R. 1960 M.P. 134. (2) 1971 (7) Delhi Law Times  363. (3) A.I.R. 1969 Pb. & Haryana 270. 685 East Punjab Urban Rent Restriction Act, 1949.  The ground on which  possession  was sought by the landlord  was  that  he required the land for his own use as he wanted to  construct a  building  for  the  purpose  of  his  office.   The  Rent Controller allowed the application and the appeal filed  by the  tenant  against  that decision  was  dismissed  by  the District  and  Sessions  Judge.  The  tenant  then  filed  a REvisional  ’application to the High Court, during the  pen- dency    of    which   the   landlord    died.     On    the tenant’s,application  the  widow and an adopted son  of  the landlord  were  brought on the record but it  was  urged  on behalf  of  the  tenant that the  ground  of  ejectment  was personal  to the landlord and therefore the application  for ejectment  had  abated on his death.   This  Contention  was rejected on the ground that the word "landlord" in the  East Punjab Act includes his successors-in-interest and that  the rights  of  a  laNdlord-decree-holder  under  an  order   of eviction obtained by him are heritable and devolve after his death on his leGal representatives. Cases of the second category are distinguishable because the decisions therein are, by and large, based on the  principle that an executing court has no jurisdiction to go behind the decree.  It must execute the decree as it finds it, save  in exceptional  cases as, for example, where the decree on  the face of it is without jurisdiction. In Vas Dev v. S. Sohan Singh & Ors.(1) a case under  section 14  (1)  (e)  of the Delhi Rent Control  Act,  the  landlord obtained  an  order of eviction on the  ground  of  personal requirement but, he died before the order for eviction could be  executed.   His sons and daughters  filed  an  execution application,  to which the tenants raised an objection  that the  order of eviction being personal to the  landlord,  was incapable  of execution after his death.  It was held by  a learned  single Judge that the provisions of  section  14(1) (e)  have to be satisfied at the time of the passing of  the order OF eviction and that the executing court had no  right to  go  behind the decree in order to find out  whether  the requirement  continue at the time of execution.  A  contrary decision  in Dr. Muthammad Ibrahim v. Rahiman Khan and  Ors. (2)  may  be said to turn on the peculiar  language  of  the particular provision of the Madras House Rent Control Order, 1945. Cases  of  the  third  category  are  governed  by   totally

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different considerations.  The landlord’s right to evict the tenant on the grounds available under the Rent Act does  not come to an end with the death of the tenant.  That right  is enforceable  against  those in whom  the  tenant’s  interest resides for the time being.  In Rameshwar Dayal and Anr.  v. (Smt.  Mohania Died) After her (1) 1968 (4) Delhi Law Times 391. (2) 1947 (2) M.L.J. 686 Sri  Sohan Lal and Anr. (1) which was a case under the  U.P. (Temporary)  Control  of  Rent and Eviction  Act,  1947  the landlords obtained permission under section 3 of that Act to bring  a suit for ejectment on the ground that the shops  in possession of the tenant were in a dilapidated condition and required reconstruction.  The landlords thereafter brought a suit,  during  the pendency of which the tenant  died.   The tenant’s  son and widow were then brought on the record  but the suit was dismissed on the ground that the notice to quit was  defective.  The landlords brought another suit  against the son and widow without obtaining a fresh permission under section 3. It was held that the suit could be filed  against the  heirs on the basis of the permission  obtained  against the  tenant.  Clearly, :the permission to evict  related  to the condition of the premises which did not change with  the death of the tenant. We have referred to some of the decisions in the three Cate- gories, not with a view to determining their correctness but only in order to show that they rest on different principles or  could be explained in reference to such principles.   We are concerned with a matter not involving the application of any of those principles.  For reasons already stated, we are of the view that considering the nature of the claim made in the  instant case and the bundle of facts  which  constitute the  plaintiff’s cause of action, his right to sue will  not survive to his legal representatives. In  the result, the appeal fails but there will no order  of costs. S.C.                      Appeal dismissed. (1) 1963 A.L.J. 198. 687