KASTURI LAL Vs. BRIJ LAL

JUDGEMENT

(1.) THIS civil second appeal arises out of the following facts: In a suit for ejectment on the ground of personal necessity, a decree was passed in favour of the plaintiffs -respondents by the City Judge, vide his judgment dated 30 -12 -1972. Against this order an appeal was taken to the District Judge Jammu, by the appellant -tenant on 27 -1 1973. During the pendency of the appeal, the appellant -tenant passed away. An application was made by the legal representatives of the deceased -tenant with a prayer that they may be substituted as appellants in place of the deceased -tenant. The respondents -landlords admitted that the applicants were the legal representatives of the deceased -tenant but objected to their being substituted as appellants in the appeal on the found that the right to file or continue to prosecute the appeal was a personal right of the deceased tenant whose tenancy had been determined by a validly issued notice and by the order and judgment of the trial court of City Judge, Jammu It was alleged that the deceased -tenant had ceased to be contractual tenant and had instead come to hold the status of a statutory tenant only whose legal representatives under law were not entitled to prosecute the appeal as the interest of a statutory tenant in the demised property was not heritable. The learned District Judge vide his order dated 26 -8 -1974 dismissed the application of the legal representatives of the deceased -tenant and also in consequence dismissed the appeal holding that the deceased -tenant had no transferable inheritance to pass on to his legal representatives as he had ceased to be a contractual tenant on the determination of the lease by the landlords when a notice for such determination was issued against him. It was against this order that the legal representatives of the deceased -tenant have filed this second appeal in this Court.

(2.) WHILE challenging the legality and correctness of the judgment of the learned District Judge, Mr. Sethi, the learned counsel for the appellants, has raised three points. His first contention is that the first appellate court has completely erred in law in holding that the legal representatives of the deceased -tenant have no right in themselves to continue with the appeal as the legal representatives were not tenants as recognized under the J&K Houses and Shops Rent Control Act herein -after referred to as the Act. He submitted that the first appellate court has erred in basing its judgment on mis -interpretation of judgments delivered by the Supreme Court in viz AIR 1965 S.C. 414 and AIR 1072 S C. 2526 as the Supreme Court in those cases was seized of matters which had arisen under the Bombay Rent Act and Rajasthan Rent Control Act respectively. His contention was that the provisions of the Act were different in some respects from the provisions of the Bombay and Rajasthan Rent Control Acts in general, and in particular the definition of a tenant in the Act was more exhaustive than the definition contained in Rajasthan and Bombay Acts in as much as the definition of a tenant in the Act specifically includes the legal representatives of the tenant in its ambit. According to him, legal representatives of a tenant were not included in the definition of a tenant in the Acts which were the subject matter of the appeals before the Supreme court in 1965 SC 414 and 1972 SC 252 - Supra. As such according to him the principle laid down in the Supreme court judgments would not apply to the cases arising out of the Act. He submitted that the latest judgment of the Supreme Court in this regard was AIR 1976 SC 2229 in which, according to him, it his been laid down that the interest and estate that vests in a statutory tenant was heritable. He further submitted that 1965 SC 414 and 1972 SC 2525 were impliedly over -ruled in 1976 SC 2229 as the latest judgment was delivered by a Bench consisting of three Judges of the Supreme Court while the earlier two judgments were delivered by Benches of two Judges only. Mr. Gupta, appearing for the respondents landlords controverted this contention by submitting that though the legal representatives have been included in the definition of the tenant under the Act but the reference was only to the legal representatives of such tenants whose tenancy has not been determined. He further submitted the principles laid down in 1965 SC 1414Supra and also in 1972 S.C. 2526 Supra were not over -ruled in 1976 SC 2229 Sura. He further submitted that the principles laid down in all the three judgments of Supreme Court were one and the same.

(3.) THE next contention of Mr. Sethi is that the first appellate court has without giving proper thought to it, dismissed his plea of the lease having been in favour of a Joint Hindu Family of which the deceased -tenant was the Karta, and the legal representatives -applicants were the members. Mr. Guptas stand with regard to this contention of Mr. Sethi was that the plaint nowhere shows that the deceased -tenant was the Karta of a Joint Hindu Family of which the applicants were other members. His submission was that the applicants case was based on their being the legal representatives of the deceased -tenant and not in having an independent right in the demised property as members of the Joint Hindu Family. According to him even if the applicants are held to be the members of the Joint Hindu Family, they would not because of that fact be termed as tenants within the meaning of the Act.