NARAIN PARSHAD Vs. NARESH CHANDRA

JUDGEMENT

(1.) Narain Pershad and two others, including Mrs. Uma Pershad, filed this appeal against Naresh Chandra on April 19, 1967 against the judgment and decree of a Sub Judge 1st Class, Delhi, decreeing Naresh Chandra's suit for possession of property tearing No. 70, Kucha Sukhanand, Dariba Kalan, Delhi, and recovery of Rs. 293.75 on account of arrears of rent (as against only Narain Pershad and Mrs. Uma Pershad) and recovery of Rs. 236.25 on account of damages for use and occupation. Mrs. Uma Pershad died at Delhi on February 29, 1976 leaving behind as her heirs three sons and a daughter. The three sons are said to be Puran Pershad, Mahadev Pershad and the first appellant, Narain Pershad. The daughter's name is Smt. Inder Vati, who is the wife of Shri Suresh Pal and is living at Jullundur. The respondent, Naresh Chandra, moved C.M. 409 of 1978 on July 17, 1978 pointing out that Mrs. Uma Pershad, the second appellant, died on February 29, 1976 and since her legal representatives had not been impleaded as appellants within the time permitted by law the appeal has abated. Notice of this application was given to counsel for the two surviving appellants on August 10, 1978. A reply was filed to this application on behalf of the first and the third appellant. An application, C.M. 505 of 1978, was then preferred by the two surviving appellants on August 29, 1978 under Order 22, Rule 3 Civil Procedure Code praying that Puran Pershad, Mahadev Pershad and Smt. Inder Vati be impleaded as appellants being legal representatives of Mrs. Uma Pershad, Narain Pershad being already there. An application, being C.M. 504 of 1978, was also moved invoking Section 5 of the Limitation Act praying for condonation of delay in filing the application under Order 22, Rule 3, Civil Procedure Code All these applications were ordered to be listed for hearing along with the appeal. We have heard counsel on their applications before proceeding to bear them on merits of the appeal because the first question to be decided is whether the appeal has abated and if so, whether the abatement is to be set aside and the legal representatives of Mrs. Uma Pershad impleaded as appellants.

(2.) The facts of the case may first be briefly stated. Late Uma Pershad took the premises in suit on rent from R. S. Pyare Lal on a monthly rent of Rs. 33.75. R. S. Pyare Lal died on July 8, 1942 leaving behind only one son and heir R. S. Adishwar Lal. Uma Pershad consequently became a tenant under R. S. Adishwar Lal. The tenancy of Uma Pershad is said to have been terminated by R. S. Adishwar Lal by a notice dated August 20, 1947. Uma Pershad, however, continued to occupy the premises as a statutory tenant as he had protection against eviction on account of the rent restriction laws or Rent Control Acts which were promulgated from time to time. R. S. Adishwar Lal died on April 16, 1950. His properties were inherited by his two sons, Sheel Chandra and Naresh Chandra and their mother, Smt. Kiran Dwi. As a consequence of an alleged partial family partition the property in suit is said to have fallen to the share of Naresh Chandra. Smt. Kiran Devi is claimed to have executed a relinquishment deed in favour of her sons on March 31, 1953. Uma Pershad is said to have died on June 18, 1964. Thereafter the premises were occupied by Mrs. Uma Pershad and one of her sons, Narain Pershad. Mrs. Nirmala Pershad wife of Narain Pershad, is occupying the premises by virtue of her being the wife of Narain Pershad. Naresh Chandra claiming possession contended that Narain Pershad, Mrs. Uma Pershad and Mrs. Nirmala Pershad had no right to occupy the premises on the death of the statutory tenant, Uma Pershad, and in consequence filed a suit for possession of the property, recovery of arrears of rent due from Uma Pershad till the date of his death and damages for use and occupation for the subsequent period as against the three persons in occupation of the property. This suit, as already noticed, was decreed. According to the plaint the defendants/appellants were sued as occupants of the premises of which possession was sought. The claim for damages for use and occupation was also on the same basis. The defendants/appellants sued for arrears of rent due from Uma Pershad were Narain Pershad and Mrs. Uma Pershad being the heirs of Uma Pershad. In the written statement filed by the defendants/appellants the plea that was taken was that Narain Pershad and Mrs. Uma Pershad succeeded to the tenancy rights of Uma Pershad and became tenants under the respondent/plaintiff, Naresh Chandra. Regarding Mrs. Narain Pershad the plea was that as wife of Narain Pershad the first defendant/appellant she was living with him in the house in suit. In terms, therefore, the stand of Narain Pershad and Mrs. Uma Pershad was that they were the tenants of Naresh Chandra and so, the suit for dispossession was not maintainable. It was specifically pleaded that the defendants/ appellants were liable to pay rent and not damages. The service of a notice of termination of tenancy on Uma Pershad was disputed and it was claimed that Uma Pershad had become a statutory tenant under Naresh Chandra which tenancy was inherited by Narain Pershad and Mrs. Uma Pershad on the death of Uma Pershad. It is in this state of the pleadings that the question of abatement and impleading of legal representatives of Mrs. Uma Pershad has to be considered.

(3.) Order 22 of the Code of Civil Procedure deals with situations arising out of one or more parties to a suit or an appeal dying during the pendency of such proceedings. Rule 1 lays down that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Rule 2 lays down that where there are more plaintiffs or defendants than one and any of them dies and where the right to sue survives to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone, the suit shall proceed after recording of the fact of death at the instance of the surviving plaintiff or plaintiffs or against the surviving defendant or defendants. Rule 3 under which C.M. 505 of 1978 has been moved reads as under :