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CASE NO.: Appeal (civil)  4496-4497 of 1998

PETITIONER: Shakuntala Bai & Ors.

RESPONDENT: Narayan Das & Ors.

DATE OF JUDGMENT: 05/05/2004

BENCH: CJI& G.P. Mathur.

JUDGMENT: JUDGMENT

G.P. MATHUR,J.

1.      It is a shocking case.  A suit for eviction of a tenant was instituted  more than 42 years back in March, 1962 for the bona fide need of carrying  on business by the owner landlord but his widow and sons are still knocking  the doors of court of justice.  During the pendency of the appeal filed by the  tenant the landlord died leaving a widow and minor sons but this, the High  Court thought, came to the advantage of the tenant, rendering the suit liable  for dismissal, little realizing that they also needed some place to carry on  business for survival.  Such extreme views erode the faith of people in the  judicial system prompting them to take recourse to extra judicial methods to  recover possession of their property.   

2.      These appeals by special leave have been preferred against the  judgment and order dated 3.9.1997 of the High Court of Madhya Pradesh by  which the second appeals filed by the respondents/tenants were allowed and  the suit for their eviction was dismissed.

3.      Girdhari Lal Gattani (husband of appellant no.1 and father of  appellants no.2 to 4) filed a suit on 31.3.1962 for eviction of Magan Lal  (father of respondents) from a non-residential premises.   The suit was filed  on the ground that he required the premises for carrying on his own  business.   The suit was decreed by the trial Court against which an appeal  was preferred by Magan Lal.   During the pendency of the appeal, Girdhari  Lal died and the appellants herein were substituted as his heirs and legal  representatives.  The appellants sought an amendment of the plaint and  pleaded that they bonafidely require the premises for carrying on business.    The tenant Magan Lal sought an amendment in the written statement to the  effect that after the death of Girdhari Lal, the bona fide requirement of the  premises for carrying on business pleaded in the suit came to an end.   The  lower appellate Court allowed the amendments and remanded the matter to  the trial Court for fresh consideration.   During the pendency of the suit, the  plaint was further amended and it was pleaded that the appellants no.2, 3 and  4 had also attained majority and they wanted to start a cloth business in the  premises in dispute.  The trial Court, after affording the parties an  opportunity to adduce evidence, dismissed the suit.  The appellants then  preferred an appeal and during the pendency thereof the original tenant  Magan Lal died and his sons, respondents no.1 and 2 were substituted in the  plaint.   The lower appellate Court allowed the appeal and decreed the suit  for eviction.  Feeling aggrieved by the aforesaid judgment and decree of  eviction, the respondents preferred second appeal which has been allowed by  the High Court by the impugned judgment/decree dated 3.9.1997 and the  suit has been dismissed.

4.      The main ground on which the appeal has been allowed by the High

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Court is that in a suit filed by the landlord for eviction of a tenant, the  requirement or need set up by him must subsist till the appeal filed by the  tenant is finally decided and that a tenant can always take advantage of  subsequent event like death of the landlord  at a later stage during the  pendency of the appeal etc. to urge that the requirement or need of the  landlord has come to an end.   Accordingly, it has been held that on the  death of Girdhari Lal Gattani, the Civil Suit filed by him ought to have been  dismissed as his legal heirs, the appellants herein, could not have continued  the suit which was based on personal bona fide need.   

5.      The question which requires consideration is whether on account of  death of a landlord during the pendency of the appeal, a suit validly  instituted by him for eviction of a tenant on the ground of his personal need,  is liable to be dismissed.    

6.      The enactment with which we are concerned is the Madhya Pradesh  Accommodation Control Act, 1961 (Act No.41 of 1961).   The preamble of  the Act reads as under : "An Act to provide for the regulation and control of letting and  rent of accommodations, for expeditious trial of eviction cases  on ground of "bona fide" requirement of certain categories of  landlords and generally to regulate and control eviction of  tenants from accommodations and for other matter connected  therewith or incidental thereto."

       As the preamble shows the Act has been enacted to regulate and  control eviction of tenants and for expeditious trial of eviction cases on the  ground of bona fide requirement of certain categories of landlords.   Section  2(b) defines a "landlord" and it reads as under : 2(b).   "landlord" means a person, who, for the time being, is  receiving, or is entitled to receive, the rent of any  accommodation, whether on his own account or on account of  or on behalf of or for the benefit of, any other person or as a  trustee, guardian or receiver for any other person or who would  so receive the rent or be entitled to receive the rent, if the  accommodation were let to a tenant and includes every person  not being a tenant who from time to time derives title under a  landlord.

7.      Chapter III deals with control of eviction of tenants and sub-section  (1) of Section 12 therein lays down that notwithstanding anything to the  contrary contained in any other law or contract, no suit shall be filed in any  Civil Court against a tenant for his eviction from any accommodation except  on one or more of the grounds enumerated in the sub-section.  Clause (f) of  this sub-section reads as under : (f)     that the accommodation let for non-residential purposes  is required bona fide by the landlord for the purpose of  continuing or starting his business or that of any of his major  sons or unmarried daughters if he is the owner thereof or for  any person for whose benefit the accommodation is held and  that the landlord or such person has no other reasonably non- residential accommodation of his own in his occupation in the  city or town concerned.

       The aforesaid provisions show that a suit for eviction of a tenant from  an accommodation let for non-residential purposes can be instituted by a  landlord for the purpose of his own business or that of any of  his major  unmarried sons or daughters, if he is the owner of the premises or for any  person for whose benefit the accommodation is held.    It may be noticed  that this clause does not say that only such a landlord who has attained  majority can institute a suit.  But if the need which is set up is that of the  sons of the landlord then they should be major sons.   There is no restriction  on a landlord who may be minor to seek eviction of a tenant if the premises  is bonafidely required by him.

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8.      As mentioned earlier, the suit filed by the original landlord Girdhari  Lal Gattani was decreed by the trial Court but he died during the pendency  of the appeal preferred by the tenant Magan Lal.   Thereafter, the appellants  (heirs of Girdhari  Lal) applied for amendment of the plaint which was  allowed.   The amended para 5B reads as under : "(5B).          The need for which eviction was sought by the late  Shri Girdharilal still persists if any this it has been much more  accentuated.   The contemplated business will now be run by  the widow of the deceased.   She has a son \026 the respondent  no.3 Laxminarayan who will shortly attain majority.   He is  about 16 years old.   He is an intelligent boy and is already  trained in the trade.   These respondents have enough money  with them.   Laxminarayan recently earned first price of  Rs.7500/-, Girdharilal’s insurance money of Rs.11000/- has  also been received by the respondents.   This will enable them  to start business for their livelihood."                  The lower appellate Court remanded the case to the trial Court for  fresh consideration and during the pendency of the suit after remand, the  plaintiffs again applied for amendment of the plaint, which was allowed and  the main amendment so incorporated reads as under : "(5B).        The plaintiffs in right earnest shall start business of  ready made garments in the suit premises.  The plaintiff no.3  and 4 also attained majority during the pendency of suit.  The  plaintiffs no.2, 3 and 4 shall start business of ready made  garments after receiving vacant possession of suit  accommodation."  

9.      The first amendment sought by the appellants was that need of the  premises in dispute not only persist but had been accentuated on account of  death of Girdhari Lal.   According to the plaintiffs, the business shall be  carried on by his widow, who shall be assisted by her intelligent son  Laxminarayan, who was then aged about 16 years and was already trained in  trade.   The business was required to be carried on for their livelihood.   It  appears that after the remand, the suit remained pending in the trial Court for  quite some time and during this period, the other sons, namely, plaintiffs  no.3 and 4 also attained majority and it was pleaded that all the sons will  carry on the business.   Thus, at the time when the trial Court finally heard  the suit, all  the plaintiffs were major and they had specifically set up their  own bona fide need for the premises in question for carrying on business for  their livelihood.   

10.     The effect of death of a landlord during the pendency of the  proceedings has been considered in several decisions of this Court.   In Smt.  Phool Rani v. Naubat Rai Ahluwalia AIR 1973 SC 2110, the landlord filed  an ejectment application under Section 14(1)(e) of the Delhi Rent Control  Act and eviction of the tenant was sought 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 dismissed the  application on a preliminary ground that the notices to quit were not valid,  without examining the case on merits.   The plaintiff died during the  pendency of the appeal preferred by him and his heirs were substituted.  The  case was remanded and the Rent Controller passed an order of eviction.  In  appeal a contention was raised that the right to sue did not survive to the  heirs of the plaintiff, which was rejected by the Rent Control Tribunal but  was accepted in appeal by the High Court.   This court held that different  result may follow according to the stage at which the death occurs. One of  the situations considered in para 13 of the reports is as under : "(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."

       With regard to this category of cases it was held that the estate is  entitled to the benefit which, under a decree, has accrued in favour of the

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plaintiff and, therefore, the legal representatives are entitled to defend  further proceedings, like an appeal, which constitute a challenge to that  benefit. Even otherwise this appears to be quite logical.   In normal  circumstances after passing of the decree by the trial Court, the original  landlord would have got possession of the premises.  But if he does not  and  the tenant continues to remain in occupation of the premises it can only be  on account of the stay order passed by the appellate Court. In such a  situation, the well known maxim ’actus curiae neminem gravabit’ that ’an  act of the Court shall prejudice no man’ shall come into operation.    Therefore, the heirs of  the landlord will be fully entitled to defend the  appeal preferred by the tenant and claim possession of the premises on the  cause of action which had been originally pleaded and on the basis whereof  the lower Court had decided the matter and had passed the decree for  eviction.  However in regard to the case before the court it was held that the  requirement pleaded in the ejectment application on which the plaintiff  founded his right to relief was his personal requirement and such a personal  cause of action must perish with the plaintiff.   On this ground it was held  that the plaintiff’s right to sue will not survive to his heirs and they cannot  take the benefit of the original right to sue.   

11.      In Shantilal Thakordas v. Chimanlal Maganlal Telwala 1976 (4) SCC  417, a larger Bench overruled the decision rendered in Phool Rani v. Naubat  Rai Ahluwalia (supra) in so far it held that the requirement of the occupation  of the members of the family of the original landlord was his personal  requirement and ceased to be the requirement of the members of his family  on his death.  The court took the view that after the death of the original  landlord the senior member of his family takes his place and is well  competent to continue the suit for eviction for his occupation and   occupation of the other members of the family.   Thus, this decision held that  the substituted heirs of the deceased landlord were entitled to maintain the  suit for eviction of the tenant.   The ratio of this decision by larger Bench  does not in any manner affect the view expressed in Phool Rani (supra) that  where the death of the landlord occurs after a decree for possession has been  passed in his favour, his legal representatives are entitled to defend further  proceedings like an appeal and the benefit accrued to them under the decree.    In fact, the ratio of Shantilal Thakordas (supra) would reinforce the aforesaid  view.   There are several decisions of  this Court on the same line.   In  Kamleshwar Prasad v. Pradumanju Agarwal 1997(4) SCC 413 it was held  that the need of the landlord for premises in question must exist on the date  of application for eviction, which is the crucial date and it is on the said date  the tenant incurred the liability of being evicted therefrom.   Even if the  landlord died during the pendency of the writ petition in the High Court, the  bona fide need cannot be said to have lapsed as the business in question can  be carried on by his widow or any other son.   In Gaya Prasad v. Pradeep  Srivastava 2001 (2) SCC 604 it was held that the crucial date for deciding as  to the bonafides of requirement of  landlord is the date of his application for  eviction.   Here the landlord had instituted eviction proceedings for the bona  fide requirement of his son who wanted to start a clinic.   The litigation  continued for a long period and during this period the son joined Provincial  Medical Service and was posted at different places.   The subsequent event  i.e. the joining of the service by the son was  not taken into consideration on  the ground that the crucial date was the date of filing of the eviction petition.     Similar  view has been taken  in G.C. Kapoor v. Nand Kumar Bhasin 2002  (1) SCC 610.   Therefore, the legal position is well settled that the bona fide  need of the landlord has to be examined as on the date of institution of  proceedings and if a decree for eviction is passed, the death of the landlord  during the pendency of the appeal preferred by the tenant will make no  difference as his heirs are fully entitled to defend the estate.   

12.     The High Court in the present case  no doubt noticed the decisions  rendered in Phool Rani (Supra) and Shantilal Thakordas (supra), but chose  to rely upon a decision by two Judge Bench   rendered in P.V. Papanna v. K.  Padmanabhaiah 1994(2) SCC 316.   In this case the trial Court had passed a  decree for eviction which was challenged by the tenant by filing a revision in  the High Court which was  dismissed but  four years time was granted to

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vacate the premises.   The special leave petition preferred by the tenant was  also dismissed.  During the pendency of this period of four years, the  landlord died leaving a will in favour of his brothers.   When the tenant did  not vacate the premises after the expiry of four years, the appellants applied  for execution of the decree.   The execution petition was allowed by the trial  Court and order for eviction was passed but the order was reversed by the  High Court in a revision filed by the tenant on the ground that the cause of  action did not survive on the death of the landlord and the appellants  (legatees \026 claiming as legal representatives of the deceased landlord) could  not execute the decree for eviction which was purely personal.  After  examining several earlier decisions, the Court held as under : "18.    For the foregoing discussion, we must hold that events  which take place subsequent to the filing of an eviction petition  under any Rent Act can be taken into consideration for the  purpose of adjudication until a decree is made by the final court  determining the rights of the parties but any event that takes  place after the decree becomes final cannot be made a ground  for reopening the decree.   The finality to the dispute  culminating in the decree cannot be reopened by the executing  court for readjudication on the ground that some event or the  other has altered the situation.   As a corollary thereto it must  also be held that once the decree becomes final it became a part  of the estate of the landlord and therefore the appellants as legal  representatives of the deceased landlord are entitled to execute  the same."

13.     The limited question for consideration in this case was whether a  decree which had attained finality would become unexecutable on account  of death of the landlord and  this question was answered in favour of the  landlord and against the tenant basically on the principle that the excecuting  court cannot go behind the decree.   For the decision of the appeal it was  wholly unnecessary to examine the question as to the effect of death of the  landlord  during the pendency of the appeal preferred by the tenant after a  decree for eviction has been passed.   The decisions rendered in Phool Rani  (Supra) and Shantilal Thakordas (supra) were not brought to the notice of  the Bench.  We are, therefore, of the opinion that the observations made in  the aforesaid case that "events which take place subsequent to the filing of  an eviction petition under any Rent Act can be taken into consideration for  the purpose of adjudication until a decree is made by the final Court  determining the rights of the parties", which are more in the nature of obiter  do not represent the correct legal position.    

14.     Sub-section (1) of section 12 of the Act says "no suit shall be filed in  civil court against a tenant for his eviction\005\005.."  The language employed  does not say "no decree shall be passed\005\005\005\005"  So the bar created is  against filing of the suit except on one of grounds enumerated in clauses (a)  to (p) of the sub-section.  Therefore what is to be seen is whether the suit  was validly filed i.e. whether on the date of filing of the suit one of the  grounds was made out.  A suit validly filed cannot be scuttled or held no  longer maintainable in absence of any specific provision to that effect.   Therefore the principle that "the need of the landlord must exist till the  decree for eviction is passed by the last court and attains finality" can even  otherwise have no application here in view of the express language used in  the section.  

15.     As the preamble shows the Madhya Pradesh Accommodation Control  Act, 1961 has been enacted for expeditious trial of eviction cases on the  ground of bona fide requirement of landlords and generally to regulate and  control eviction of tenants.   If the subsequent event like the death of the  landlord is to be taken note of at every stage till the decree attains finality,  there will be no end to litigation. By the time a second appeal gets decided  by the High Court, generally a  long period elapses and on such a principle if  during this period  the  landlord who instituted the  proceedings dies, the suit  will have to be dismissed without going into merits.  The same thing may

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happen in a fresh suit filed by the heirs and it may become an unending  process. Taking into consideration the subsequent events may, at times, lead  to rendering the whole proceedings taken infructuous and colossal waste of  public time.  There is no warrant for interpreting a Rent Control legislation  in such a manner the basic object of which is to save harassment of tenants  from unscrupulous landlords.  The object is not to deprive the owners of  their properties for all times to come.    

16.     There is another aspect of the matter which needs consideration.    After the case had been remanded, the plaint had been amended and the need  of the sons had been set up who had all attained majority by that time.   The  Courts thereafter proceeded to decide the controversy on the basis of the  need of the sons and the lower appellate Court, after finding their need to be  bona fide, passed a decree for eviction in their favour.   In the second appeal  preferred by the tenant, the High Court, instead of examining the issues on  the basis of which the case had been decided, went on to hold that on  account of death of Girdhari Lal, the need set up by him came to an end and  on that finding dismissed the suit.   The parties having amended their  respective pleadings and the two Courts below having decided the matter on  such amended pleadings and the evidence adduced thereon, it was wholly  impermissible on the part of the High Court to examine the question as to  the effect of death of the original plaintiff and thereafter to dismiss the suit  on the finding that his need having  come to an end, the suit ought to have  been dismissed.   It is well settled that when amendment is allowed, the  proceedings have to be decided on the basis of such amended pleadings.  We  are, therefore, of the opinion that the view taken by the High Court is wholly  illegal.

17.  The appeals are accordingly allowed with cost. The judgment and  decree passed by the High Court is set aside and that of the Additional  District Judge decreeing the suit for eviction is restored.    

18.      Learned counsel for the respondents (tenants) made a prayer that they  may be granted some time to vacate the premises.   Shri K. Ramamurthy,  learned senior counsel for the appellants has very fairly stated that the  respondents may be given four  months’ time to vacate the premises.   In  view of this statement, we grant four  months’ time to the respondents to  vacate the premises subject to their filing the usual undertaking  within one  month in the trial Court.