KANWAR SINGH Vs. OM KANT

JUDGEMENT

(1.) ASJIT for ejectment of the defendant-appellant from the suit shop situate at Udhampur was bought three person namely S/Shri Om Kant, Suraj Parkash and Ram Rattan. The principle ground on which the ejectment of the defendant-appellant was sought was that the suit shop was required for the personal necessity of Om Kant to whose share the shop had fallen in a family partition. The suit was dismissed by the learned Sub-Judge, Udhampur, on 22.1.1975 but the decree and judgment of the learned Sub Judge was set aside in appeal by the learned District Judge, Udhampur, on 1.5.1976. Aggrieved against the decree of reversal, the defendant-appellant filed the civil second appeal which is the subject-matter of decision by this Court. During the Pendency of the appeal in this Court, Shri Om Kant died and his legal representatives were brought on the record.

(2.) MR . R.P. Bakshi, learned counsel for the defendant-appellant appearing in support of the civil second appeal, has submitted that since the sole ground for ejectment of the appellant was that the suit shop was required by Om Kant for his personal necessity and since Shri Om Kant had died, the ground of personal necessity had perished with him and as such, it is contended, the appeal be allowed and the suit filed against the appellant be dismissed. It is maintained that the premises in dispute was a commercial shop and the ground for eviction was that Om Kant needed the same to start his own Karyana shop and, therefore, on his death that ground was no longer available. Mr. Bakshi urges that the position in case of a residential house would be different as the family members might be allowed to say that since they were living with the landlord before his death, his personal necessity included their personal necessity, also. No other ground has been urged by Mr. R.P. Bakshi in support of the civil second appeal.

(3.) MR . Thakur has, in support of his sub-missions, placed strong reliance on Smt. Phool Rani v. Sh. Naubat Rai Ahluwalia (AIR 1973 SC 2110 1973 RCR 364. In that case the plaintiff, in a Rent Act application against his tenant, sought possession of certain premises on the ground of personal requirement but died during the pendency of the appeal before the Appellate Authority. The legal representatives of the deceased made an application was opposed by the tenant. The Appellate Authority, however, allowed the legal representatives to be brought on the record. The contention of the tenant that the right to sue (including the right to continue the appeal) did not survive to the heirs of the plaintiff was negatived by the appellate authority. In an appeal before the High Court at Delhi, their Lordships of the Delhi High Court took the view that the right to sue did not survive to the heirs of the plaintiff and on that ground the application for ejectment was dismissed, leaving it open to the heirs to bring fresh proceedings founded on their own requirements. The correctness of that decision was challenged by the plaintiffs heirs in the appeal before the Supreme Court. Their Lordships of the Division Bench of the Supreme Court considered various aspects of the case and came to the conclusion that the cases in which the death of the plaintiff occurred after a decree for possession was passed in his favour say, for example, during the pendency of an appeal filed by the unsuccessful tenant, the estate is entitled to the benefit which, under a decree, had accrued in favour of the plaintiff and, therefore, the legal representatives in such cases are entitled to defend all such proceedings which constitute a challenge to that benefit. The plea of the tenant was therefore rejected.