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PETITIONER: SHANTILAL THAKORDAS & ORS.

       Vs.

RESPONDENT: CHIMANLAL MAGANLAL TELWALA

DATE OF JUDGMENT23/08/1976

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. RAY, A.N. (CJ) SHINGAL, P.N.

CITATION:  1976 AIR 2358            1977 SCR  (1) 341  1976 SCC  (4) 417  CITATOR INFO :  E          1987 SC2199  (2)  R          1990 SC1133  (6)

ACT:         Bombay  Rents,  Hotel and Lodging House  Rates  Control  Act         1947--Section 13(1) (b)--Suit for eviction on the ground  of         bona fide and personal need of a landlord--Whether right  to         sue  survives  to his heirs--Requirement of  firm  in  which         landlord  is  a  partner  whether  his  requirement--Whether         decree  passed in favour of landlord can be disturbed on his         death.

HEADNOTE:             Thakordas, father of 3 appellants, was the owner of  the         suit  premises.   He was a partner in a firm  which.  had  3         other  partners.  One of the partners was appellant  No.  1,         the  son  of Thakordas and two partners were  outsiders.   A         suit  for eviction was filed against the respondent  on  the         ground  that  Thakordas required the premises for  the  said         firm  reasonably and  bona fide  within  the meaning  of  s.         13(1)(g)  of  the Bombay Rent Act, 1947.   The  trial  court         passed  a decree for eviction in respect of a   portion   of         the  premises.   Thereafter, Thakordas died and the  present         appellants  who are his sons filed an appeal.  Likewise  the         tenant also filed an appeal.  Appellants No. 1 and 2 togeth-         er with some outsiders continued the firm.  However,  appel-         lant No. 3 a minor son of Thakordas was not admitted to  the         benefit  of  the  partnership.  The  First  Appellate  Court         confirmed  the  decree  of the trial  court.   The  revision         application filed by the tenant was allowed and one filed by         the  appellants was dismissed by the High Court  relying  on         the  decision  of  this  Court  in  Phul  Rani  &   Ors.  v.         Naubat Rai Ahluwalia [19731 3 SCR 679.         In an appeal by special leave, the appellants contended:            1.  Phul  Rahi’s case was not correctly decided  and  the         right of Thakordas survived in favour of the appellants.            2. The requirement of the firm in which the landlord is a         partner will be the requirement of the landlord.            3.  Since the decree had already been  passed in   favour         of  Thakordas before his death it could not be disturbed  on         his death either in appeall  or in revision.

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       Dismissing the appeal,             HELD: (1) Phul Rani’s case was wrongly decided.  If  the         law  permitted the eviction of the tenant for  the  require-         ments  of  the landlord "for occupation as a  residence  for         himself and members of his family" then the requirement  was         both of the landlord and the members of his family.  On  his         death, the right to ’.sue did survive to the members of  the         family  of  the deceased landlord.  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  evic-         tion  for  his occupation and the occupation  of  the  other         members of the family. [343 H, 344 A--B]             (2) It is doubtful whether the requirement of the  prem-         ises by the landlord for occupation by the firm in which  he         is a partner will tantamount to occupation by himself.  Even         if  it is assumed that it will amount to occupation  by  the         landlord,  since in the new firm the minor son of  Thakordas         was  not admitted to the benefits of the partnership he  had         no interest in the said firm. Therefore, as far as appellant         No. 3 is concerned, he could in no sense be said to  require         the premises. [344 C---G]             (3) The conclusion in Phul Rani’s case that if a  decree         had  been  already passed in favour of  the  plaintiff  that         could not be disturbed on his death is not correctly  decid-         ed.  In fact, no final opinion was expressed in Phul, Rani’s         case on that question. [344 H, 345 A]         342         Phul  Rani  & Ors. v. Naubat Rai Ahluwalia [1973]  3  S.C.R.         679, overruled.

JUDGMENT:         CIVIL APPELLATE JURISDICTION:  Civil Appeals Nos. 487-488 of         1976.              (Appeal  by Special Leave from the Judgment and   Order         19.12.1973  of  the  Gujarat High Court  in  Civil  Revision         Application  No. 540 and 678 of 1970).         S.K. Dholakia and R.C. Bhatia, for the appellants.         R.P.  Bhatt and H.S. Parihar for 1. N. Shroff, for  the  re-         spondent.         The Judgment of the Court was delivered by           UNTWALIA, J. In these appeals by special leave  the  ques-         tion which fails for our determination is whether the  deci-         sion  of  a Bench of this Court consisting  of  two  learned         Judges  in  Phul Rani & Ors. v. Naubat Rai  Ahluwalia(1)  is         correct.  If not, whether the appellants are entitled to get         a  decree  for  eviction in respect of  the   suit  premises         against    the defendant respondent.         Thakordas Bhagwandas--the father of the three appellants was         owner of the suit premises.  He was a partner in a  partner-         ship firm styled as Jai Hind Silk Weaving Works.  There were         three   more partners in the firm-one of whom was  Shantilal         Thakordas,  appellant  No. 1, son of  Thakordas  Bhagwandas.         The  other two  were outsiders.  The suit was filed  against         respondent Chimanlal Maganlal Telwala for his eviction  from         the premises on several grounds.  The only ground which need         to  be  mentioned for the purpose of the  disposal  of  this         appeal  is  Thakordas’s claim of  requiring   the   premise.         reasonably  and bona-fide for occupation by  himself  within         the  meaning of section 13(1)(g) of the Bombay Rents,  Hotel         and  Lodging House Rates Control Act, 1947.   The  necessity         pleaded  by the original plaintiff was that he required  the         premises for the use  of  the partnership firm aforesaid  in         which he  was a  partner.  The  Trial Court decreed the suit

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       in  part on April 30, 1965 and passed a decree for  eviction         of  the  tenant from a portion of the suit  premises.   Both         sides  went up in appeal before the First  Appellate  Court.         Thakordas was dead and his heirs, namely, the present appel-         lants  were the appellants in one appeal and respondents  in         the other.  The first Appellate Court by its judgment  dated         November 10, 2966 maintained  the partial decree made by the         Trial Court with slight modification. Both the parties  went         in  revision before the Gujarat High Court. The  High  Court         set  aside the decree dated November 10, 1966 of the   First         Appellate  Court  and remanded the case to it  for  a  fresh         disposal of the appeal after trying out an additional  issue         of  comparative hardship of the landlord and the  tenant  as         also the question as to whether the substituted heirs of the         original  plaintiff  required the  premises  reasonably  and         bona-fide for their occupation.             The  first Appellate Court after remand again  passed  a         decree  for eviction from a portion of the suit premises  on         March 31, 1970. Two         (1) (1973) 3 S.C.R. 679.         343         revisions  were taken to the High Court--one by  the  appel-         lants   and  the  other by the  respondent.   Following  the         decision of this  Court in Phul Rani’s case (supra) the High         Court  allowed the respondent’s revision, rejected  that  of         the  appellants  and dismissed their suit  for  eviction  in         toto.  Hence these appeals.             The  foremost and the first question urged before us  by         Mr.  Dholakia  was that Phul Rani’s case was  not  correctly         decided. We agree with this contention and say with  respect         that we do not subscribe to the view expressed by the  Bench         of  this   Court in that case.  The  original  plaintiff  in         that  case  had filed the application  for   eviction  under         section  14(1)(e) of the Delhi Rent Control Act, 1958.   The         application  was  dismissed  in the first  instance  by  the         Additional  Rent  Controller, Delhi on the ground  that  the         notices to quit were  not valid.  Plaintiff filed an  appeal         but  died  during  its  pendency.  His widow,  son  and  two         married  daughters and two children of a  deceased  daughter         were allowed to be substituted by  the  Rent  Control Tribu-         nal where the appeal was pending.  The case was remanded  by         the Tribunal and after remand the Additional Rent Controller         held that some of the substituted persons require the  prem-         ises   bona-fide for their occupation.  The tenant’s  appeal         to  the Tribunal  failed. The High Court of Delhi on a  fur-         ther  appeal by the tenant 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. The case         came  up  to  this Court.  The view of the  High  Court  was         affirmed. The relevant words of personal requirement of  the         premises  in  section 14(1)(e) of the Delhi  Act  are:  "for         occupation  as  a residence for himself and members  of  his         family."  The  original  plaintiff  had pleaded:                         "The  premises are required bonafide by  the                  petitioner  for occupation as a residence for  him-                  self  and members of his family and that the  peti-                  tioner has no other reasonably suitable residential                  accommodation."                  This Court took the view:                        "Thus, the requirement pleaded in the  eject-                  ment  application  and on which the  plaintiff  has                  rounded 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

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                for a moment that the plaintiff is dead  the  prem-                  ises  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."         In our considered opinion in face of the wordings of section         14(1)(e) of the Delhi Act, the view expressed in Phul Rani’s         case, as stated         6-114SCI/76         344         above,  is not correct.  If the law permitted the   eviction         of   the  tenant for the requirement of  the  landlord  "for         occupation  as  a residence for himself and members  of  his         family",’ then the requirement was both of the landlord  and         the  members of his family.  On his death the right  to  sue         did  survive  to the members of the family of  the  deceased         landlord.  We are unable to take the view that the  require-         ment  Of the occupation of the members of the family of  the         original  landlord was his requirement and ceased to be  the         requirement  of  the  members of his family  on  his  death.         ’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  the         occupation of the other members of the family.  Many of  the         substituted heirs of the deceased landlord were  undoubtedly         the members of his family and the two married daughters  and         the  children  of a deceased daughter in  the  circumstances         could  not  be held to be not members of the family  of  the         deceased landlord.             But  even so the appellants cannot succeed in  this  ap-         peal.  Firstly it is doubtful whether the requirement of the         premises  by the landlord for occupation by the  partnership         firm in which he is a partner will be tantamount to "occupa-         tion by himself" i.e. by  the landlord. Certain decisions of         some High Courts were brought to our notice taking the  view         that  it is so.  We refrain from expressing our  opinion  in         that  regard.  We assume, as seems to have been the view  of         the  High  Court in this case, that the requirement  of  the         premises  for the use of a partnership firm by the  landlord         in which he is a partner  is covered by section 13(1)(g)  of         the Bombay Act.  Yet on the facts of this case there is  ’an         insurmountable  difficulty  in the way  of  the  appellants.         From  the judgment dated March 31, 1970 of the First  Appel-         late Court it would appear that on the death of Thakordas in         June,  1965  a new partnership was constituted. One  of  his         sons Shantilal who was a partner from before was taken as  a         partner in the new partnership alongwith Thakordas’s another         son Dhanvantlal Thakordas, appellant No. 2.  There were some         outsider  partners.   Harish Thakordas, appellant No.  3,  a         minor son of Thakordas had not been admitted to the benefits         of  the partnership.  He had, therefore, no interest in  the         partnership firm Jai Hind Silk Weaving Works.  The Appellate         Court took the view that the .substituted plaintiffs  wanted         to  use  the suit premises for ,the purpose  of  godown  for         keeping the yarn clothes and machinery articles and also for         a retail shop  and show room of the partnership.  This in no         sense  could  be the requirement of  appellant  Harish  even         assuming that it could be said tO be the requirement of  his         two  cider brothers  appellants 1  and 2.  In that  view  of         the  matter we have got to dismiss the appeal  although  Mr.         Dholakia,  learned counsel for the appellants  succeeded  in

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       persuading  us to differ from the ratio of Phul Rani’s case.             Counsel  for the appellants endeavoured to  bring  their         case within one of the exceptions noted in Phul Rani’s case.         He submitted that a decree had already been passed in favour         of the original plaintiff by the Trial Court and that  could         not be disturbed on his death either in appeal or  revision.         We do not accept the contention as sound or         345         correct.  In Phul Rani’s case no final opinion was expressed         on  this  question.  Moreover, we find that on  the  earlier         occasion   the High Court had set aside the decree  and  re-         manded  the  suit to the First Appellate Court for  a  fresh         decision.   There was, therefore, no decree in existence  to         attract the exception.         In the result the appeals fail and are dismissed but without         costs.         P.H.P.                                         Appeals  dis-         missed.         346