KEDAR LAL Vs. RAM DAYAL

JUDGEMENT

(1.) THIS appeal is by the landlord against the dismissal of his suit by the trial court in Civil Original Suit No. 91/86 dated 14. 12. 1992 and which was upheld by the first appellate court in Civil Appeal Decree No. 95/94.

(2.) BRIEF facts of the case are that the plaintiffs-landlords filed the suit for eviction of their tenant deceased Ram Dayal on 19. 3. 1974. The plaintiffs sought eviction of the tenant on the ground of their personal bona fide need. During pendency of the suit, the plaintiffs submitted an application under Order 6 Rule 17 C. P. C. in the trial court on 14. 1. 1986 and submitted that before few years, the defendant has materially altered the suit premises and that fact came to the knowledge of the plaintiffs only on 29. 12. 1985, therefore, the plaintiffs want to incorporate another ground for eviction of the tenant and that is material alteration in the suit premises. The amendment was allowed by the trial court and the amended plaint was filed. The suit for eviction of the plaintiffs against the defendant, therefore, was on the ground of personal bona fide necessity of the plaintiffs and on the ground of material alteration in the suit premises by the tenant.

(3.) IT will be worthwhile to mentioned at this juncture that during pendency of the second appeal, the sole respondent- defendant Ram Dayal died on 18. 11. 1996. The appellant submitted an application under Order 22 Rule 4, C. P. C. before this Court on 16. 1. 1997. In this application, the appellant submitted that right to sue survives to the appellant against the legal representatives of the deceased tenant. Said application was allowed by this Court and all the heirs of deceased tenant Ram Dayal were taken on record as legal representatives in this second appeal. On 29. 1. 2001, an application was submitted by the appellants stating therein that in the life time of deceased- tenant Ram Dayal, he alone was doing the business in the shop and his wife was living with him in the upper portion of the suit premises, therefore, according to the appellants, only the wife of the deceased-tenant could have been made party in the appeal. This application was submitted because of the reason that notices of this appeal were not served upon one of the married daughters of the deceased-tenant and, therefore, after mentioning above fact, it was prayed that the name of daughter of deceased-tenant may be deleted. Said application was allowed by this Court by order dated 19. 2. 2001 and name of respondent Ram Bhanwari was deleted. But no order was sought and passed on the plea which was taken by the appellants that only wife of deceased-tenant should have been impleaded as party in the appeal as legal representative of deceased Ram Dayal. IT will be worthwhile to mention here that there is one application under Order 5 Rule 17, C. P. C. by the appellants wherein it has been stated that one of the sons of deceased tenant namely Purushottam and his wife Smt. Radha Devi are residing with Smt. Radha Devi and he, after reading the notice, did not accept the notice of the appeal and even did not allow the process server to affix the notice, therefore, the service of notice upon said Smt. Radha Devi and Purushottam may be treated as sufficient. On 1. 8. 2003, an application was submitted by the appellants stating therein that the trial court passed the decree and determined the standard rent of the suit premises @ Rs. 100/- per month with effect from 1. 6. 1978. In pursuance of the said decree, the tenant should have deposited the difference amount of the rent in the court. IT is also submitted that since the order of the appellate court was stayed by this Court in this second appeal by order dated 7. 11. 2001, therefore, the tenant-respondent should have deposited the rent @ Rs. 100/- per month at least from 7. 11. 2001. IT is submitted that since the defendant has not deposited the rent, therefore, he is liable to be evicted on this ground. In this application, the appellant submitted that the plaintiff's son Purushottam is doing separate business in adjacent shop and the defendant himself in his statement, admitted that his son Purushottam is doing separate business and has nothing to do with the business of the defendant-tenant. IT is also submitted that defendant's another son Ram Chandra is serving in medical company of veterinary medicines and other son Sushil is also serving in the Rajasthan Bank and as such, none of the family member of the defendant Ram Dayal was doing business in the life time of the deceased-tenant and, therefore, none of the heir of deceased Ram Dayal is tenant as defined under Section 3 (vii) of the Rajasthan Premises (Control of Rent and Eviction ) Act, 1950.