DATTARAM SHRIPAT KHURASE Vs. LAXMAN BHAGWANJI GHASWALLA

JUDGEMENT

(1.) The question which arises in this petition is whether if the plaintiff fails to bring on record the legal heirs of one of defendants who is a tenant of certain premises, the entire suit for eviction abates. The question arises on the following facts:---

(2.) A shop, in what is known as Ghaswalla Estate, Old Chawl, House No. 493 Arthur Road, Bombay 7, belonging to the plaintiff respondent No. 1, was originally tenanted by one Shripat Arjun Khurase who admittedly died some time in the year 1946. After the death of the original tenant, his three sons and widow, defendants Nos. 1 to 3 and defendant No. 4 respectively, were treated as monthly tenants in respect of the shop premises. Alleging that the four defendants who were in occupation of the suit shop premises were in arrears of rent for the period 1st September, 1962 to 31st March, 1963, a notice dated 18th April, 1963 was issued terminating the tenancy of defendants Nos. 1 to 4. The defendants were also called upon to pay the arrears of rent for the above mentioned period at the rate of Rs. 11.78 per month along with an extra amount of Rs. 10/- per month on account of insurance premium for the said shop. Defendants Nos. 1 to 4 were alleged to have failed to pay the arrears of rent and, therefore, according to the plaintiffs, they were liable to be ejected from the premises. The Court Receiver, who was alleged to be in actual possession of the premises was joined as defendant No. 5. Thus the plaintiff prayed for a decree of ejectment. The suit came to be filed on 31st March, 1965. It appears that two separate statements of defences came to be filed, one on behalf of defendants Nos. 2 and 3 and the other on behalf of defendants Nos. 1 and 4. The defences are identical and, according to the defendants, all arrears of rent had been paid by the Court Receiver long before the filing of the suit and that after the Receiver was discharged, defendants Nos. 1 and 3 had tendered rent from time to time to the plaintiff, but he refused to accept the same on the pretext that the accounts between him and the Court Receiver were not settled. It was stated that the defendants were always and at all times ready and willing to observe the terms and conditions of tenancy.

(3.) Defendant No. 3, however, died on 4th November, 1968. An application for bringing the legal representatives of deceased defendant No. 3, however, was not made within the prescribed period of limitation. It appears to have been made on 21st July, 1969. It is not necessary to go into the details of the plea taken by the plaintiff explaining the delay in making the application and it is sufficient to state for the purposes of the present petition that the trial Court took the view that the plaintiff had not satisfactorily explained the delay in making the application. The application was, therefore, rejected on the ground of limitation.