GULAM MOHAMMAD Vs. KISHAN LAL

JUDGEMENT

(1.) THIS is a defendants-tenants' second appeal arising out of a suit for ejectment in respect of a plot of land situated in Nehru Bazar in the town of Udaipur leased out to the appellant No. I Gulam Mohd. by Kishanlal original plaintiff on 1st February, 1962 on a monthly rent of Rs. 50/ -. Kishan Lal died during the pendency of the suit and is now represented by his sons and daughters, who are respondents in this appeal The suit was based on two grounds namely, (1) personal necessity of the landlord for the plot in question and (2) sub-letting. Since the question of personal necessity has been decided against the landlord by both the Courts below and has not been pressed before me, I do not think it necessary to give the details of personal necessity alleged by the plaintiff. As regards the allegation about sub-letting, the plaintiff alleged in para No. 5 of the plaint that he had come to know on 1st June, 1968 that the defendant No. 1 Gulam Mohd. had sub-let the plot in question to Adarsh Loha Sahkari Samiti, Bapu Bazar, Udaipur (hereinafter referred to as 'the Samiti') clandestinely without the permission of the plaintiff. It was further alleged that a portion of the plot had also been sublet to the defendant No. 3 Chhotu (deceased) without the permission of the plaintiff. It may be stated, here, that Chhotu died during the pendency of the first appeal and his legal representatives were not brought on the record. It is necessary to state this fact, as an argument, which I shall deal with later, has been raised before me by the learned counsel for the appellant that on account of the failure of the plaintiff to bring on record the legal representatives of Chhotu, the appeal filed by the plaintiffs in the first appellate Court had abated.

(2.) TO continue the narration of facts, the defendant No. 1 Gulam Mohd. dinied the alleged personal necessity of the plaintiff for the plot in question as well as the allegation regarding sub-letting, to either defendant No. 2, the Samiti or the defendant No. 3 Chhotu and further pleaded that he himself carries on business in the name of the Samiti and that this business of the Samiti was being carried on by him from the very day the plot was leased out to him and that the receipts for rent had also been issued in the name of the Samiti.

(3.) THE relevant provision on the subject is O. 22, r. 4 of the C. P. C. , which reads as under - " (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives. the Court, on an application made in that behalf, shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit. (2 ). . . (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. "