BALA SUNDARI Vs. KAILASH BEHARI

JUDGEMENT

(1.) A learned Single Judge has referred a ques tion of law in a defendant's second appeal which arose out of a suit for eject ment from a residential house and for recovery of arrears of rent and of damages. Manohar Lal was the landlord of the house. He let it out to Sunder Swarup on a monthly rent of Rs. 40/- Manohar Lal on July 29, 1963 obtained permission of the District Margistrate to file a suit for ejectment of the tenant Sunder Swarup. The permission was obtained under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947. Thereafter Manohar Lal served a combined notice of demand and to quit on the tenant. Finding no response, he instituted a suit for the ejectment of the tenant and for recovery of arrears of rent and damages from him. During the pendency of the suit, Sunder Swarup, the original defendant, died in 1966. His heirs were substituted. Subsequently, on April 14, 1970, Manohar Lal sold the house in dispute to Kailash Behari Sharma, the present plaintiff-respondent. On November 12. 1970, Manohar Lal died. Mr. Sharma, the transferee, applied for substitution of his name as plaintiff. This application was allowed. In due course, the trial Court decreed the suit for ejectment on the finding that the defendant had committed default in paying the arrears of rent inspite of service of a valid notice of demand. The defendants went up in appeal. The lower appellate Court dismissed the appeal. It confirmed the finding that the tenant committed default in paying the arrears of rent and that the notice was valid. The submission made on behalf of the defendant-tenant that the permission granted by the District Magistrate to Manohar Lal did not enure for the benefit of the transferee, was upheld but the decree for eject ment was maintained because of the finding that the tenant had committed default. Aggrieved, the defendants came up to this Court in second appeal. At the hearing of the second appeal it was submitted on behalf of the defendants that the permission granted to the plaintiff-landlord, namely, Manohar Lal, did not in law enure for the benefit of the transferee. The learned Single Judge felt that the question requires consideration by a larger Bench. He hence referred the following question to a larger Benchs "whether a permission granted under Section 3 (1) of the U. P. (Tempo rary) Control of Rent and Eviction Act (No. Ill of 1947) for filing a suit in a Civil Court against a tenant for his eviction from any accommoda tion enures for the benefit of a purchaser of the accommodation which is sold to him during the pendency of a suit filed on the basis of such per mission ?" In Sajjan Singh v. Smt. Jamuna Bala Devi and another, ( A. I. R. 1960 Alld. 410) a Single Judge had held that the grant of permission under Section 3 of the Act of 1947 was the conferment of a personal right on a landlord to file a suit, That right dies with the death of the landlord and does not enure for the benefit of his succes sors. This view was, however, overruled in Rameshwar Dayal and another v. Srimati Mohania (1963 A. L. J. 198 ). The Division Bench held that the permission was granted to a landlord for eviction of the tenant from the accommodation. It remains effective till the object of ejectment of the tenant is achieved. The death of either the landlord or the tenant before the achievement of that object does not put an end to the permission. Anyone who succeeds to the right of the landlord or the tenant is entitled to the benefit or obligation of the grant of permission. The grant of permission is related to proprietory rights and is available to whomsoever becomes the landlord of the property. The effect of the grant of permission cannot, in law, come to an end on any technical ground. This view has been followed in Ram Raksh Pal v. Brij Nandan Swarup (A. I. R. 1967 Alld. 325) and in Ausaf Ali v. Gyanendra Kumar. (1978 A. L. J. 1301) A discordant note was, however, struck by a Single Judge in Syed Mohd. Idris v. 1st Additional District Judge and others (A. I. R. 1977 Alld. 296 ). In Syed Mohd. Idris, a learned Single Judge doubted the correctness of the Division Bench decision in Pameshwar Dayal's case (supra) in view of the Supreme Court decision in Smt. Phool Rani and others v. Sh. Naubat Rai Ahluwalia (A. I. R. 1973 S. C. 2110 ). In the first place, it was not proper for a Single Judge to hold that the Division Bench ruling does not hold the field in view of the Supereme Court decision. In the second place, the Supreme Court decision in Smt. Phool Rani was specifically overruled by the Supreme Court in Shanti Lal Thakordas and others v. Chimanlal Maganlal Telwala (A. I. R. 1976 S. C. 2358 ). In Smt. Phool Rani's case (supra), it was held that in the case of an eviction suit on the ground that the landlord requires the accommodation for occupying it for himself and for members of his family, the right to sue does not survive after the death of the landlord. This view was overruled in Shantilal's case where it was held after the death of the original landlord the members of his family take his place and are competent to continue the suit for eviction on the ground that they need the house for their own residence. The cause of action is not entirely personal so that it may die with the original landlord. We are satisfied that Syed Mohd. Idris was not correctly decided. In the present case, the finding of the lower appellate Court is that all rights in the house in dispute without any reservation were assigned to the transferee, Mr. Sharma. He hence had a right to continue the suit for the ejectment of the tenant from the property purchased by him. Our answer to the question referred is in the affirmative in favour of the landlord and against the tenant. Let the papers be laid before the learned Single Judge with this opinion and answer. .