B. S. LOKESH v. CHAIRMAN, CAUVERY GRAMEENA BANK — 1991 DIGILAW 263 (KAR)

HANUMANTHAPPA, J. ( 1 ) THE facts are not in dispute. Respondent No. 1-cauvery grameena bank is sponsored by the state bank of mysore. The various branches of the said bank follow the directions given by the state bank of Mysore or the reserve bank of India as per Section 24 of the reserve bank of India act read with the guidelines time and again given by national bank for agriculture and rural development (hereinafter referred to as nabard ). ( 2 ) ON 11-7-1977 the bank recruited the petitioners and others as managers and posted them to work at different places. Both nabard and the bank in question thought that it will not be proper if the appointments are stopped at the initial stage itself without promotional avenues. Hence, nabard issued guidelines as per Annexure-H with regard to the mode of promotions to be made. A reading of it makes clear that promotion to the higher posts of area managers and senior managers shall be on the basis of seoiority-cum-ment and not merit-cum-seniority. "seniority-cum -merit" means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority, as held by the High Court of Kerala in w. a. No. 604/1988 which was subsequently affirmed by the Supreme Court in state of Kerala v n. m. thomas, AIR 1976 SC 490 further clarifying that such an interpretation is not in direct contravention of article 16 (1) and (2) of the constitution. ( 3 ) OUT of 35 persons appointed, a few belong to scheduled caste, whose appointments were made on the basis of reservation. Not in dispute at the time of appointments made 11-7-1977 all these petitioners were placed above the respon- dents/promotees. Except the guidelines given by nabard, there are no standing orders regulating the selection, appointment, promo- tion or other service conditions of respondent- bank employees. ( 4 ) PETITIONER being seniors to others, in view of their possessing the requisite merit and in the absence of intimation of any adverse remarks in respect of their performance, thought that they would be promoted to the next higher post earlier to the respondents but to their surprise respondent bank promoted the respondents ignoring the case of the petitioners, though respondents were below to them, as senior managers without assigning any reasons. Aggrieved by the same the petitioners have approached this court. ( 5 ) THE challenge to the orders of the respondent-bank promoting respondents ignoring thepetitioners, are as under:- (1) promotion of respondents to the post of senior managers ignoring the case of the petitioners though similarly placed and seniors to them, is not only arbitrary and illegal but penal in nature; (2) inspite of the specific guidelines given by nabard, which is the authority which guides and controls the affairs of respondent-bank in question, respondent-bank without following the guidelines prescribed by nabard, promoted respondents. The same is in direct contravention of the guidelines given by nabard time and again in the matter of promotion; (3) there cannot be denial of promotion to the petitioners in the absence of any adverse remarks and if any adverse remarks were there, in the absence of the same being intimated to the petitioners; (4) merely because in a year or two the service register was not satisfactory or unsatisfactory, is not sufficient to deprive a person to seek right for promotion unless it is shown that the concerned officer docs not possess the minimum necessary merit requisite for efficiency of administration, as narrated earlier. ( 6 ) ACCORDING to the learned counsel for all the petitioners, finding that a particular officer is extraordinary brilliant or his efficiency is super or rank is a rank holder in the tests, are not the criteria to promote a person. All that is required is a minimum requisite merit even in respect of less efficiency and person possessing the same is entitled for promotion. In support of their contentions, learned counsel for the petitioners (2) while making an order under sub-section (1), the controller may award to the landlord such damages for the use or occupation of the premises at such rates as he considers proper in the circumstances of the case for the period from the date of such order till the date of actual vacation by the tenant". On considering the scope and ambit of Section 21 of the Delhi act ana also the definition of the word 'landlord' as contained in Section 2 (e) of the Delhi Act, the Supreme Court held thus:"2 (E ). On considering the scope and ambit of Section 21 of the Delhi act ana also the definition of the word 'landlord' as contained in Section 2 (e) of the Delhi Act, the Supreme Court held thus:"2 (E ). 'landlord' means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant". Expression, "for the time being" makes it clear, that landlord has to be understood in praesenti. That is anyone entitled to receive rent is the landlord. It does not visualise, past or future landlord. Therefore, the word 'landlord', on plain reading of Section 21 does not warrant construction of the word in any other manner. Basis for submission, however, that landlord tn second part of Section 21 entitling him to claim vacant possession should be confined to the person who obtained permission was founded on use of expression, "who does not require the whole or any part of the premises for a particular period". Attempt was made to personalise eviction proceedings by unking it with the person, due to whose non-requirement the permission was granted resulting in automatic exlusion of legal representatives. To put it interpretionally the word "landlord", in second part was urged to be understood in a manner different than it is defined in Section 2 (e ). Can it be said that context or setting of Section 21 is such that the word "landlord" in second part of it should be understood in a different sense than that in definition clause? Not on prirna facie reading of it which has already been adverted to. Neither on close analysis. What is visualised is occasion for short duration tenancy due to non-requirement of whole or part of premises by landlord for time being; method of its creation by written agreement entered with tenant, statutory status to it by permission obtained from controller and execution by restoration of vacant possession if the tenant does not vacate after expiry of period. All condensed in one. Conslruclion- ally it is in two parts one creation of short term tenancy and other its execution after expiry of time. All condensed in one. Conslruclion- ally it is in two parts one creation of short term tenancy and other its execution after expiry of time. Both stand on their own and operate independently. Non-requirement of premises for time being furnishes basis for entering into agreement for periodical tenancy. Truth of it or its genuineness are relevant considerations for granting permission. But it exhausts thereafter except to the limited extent pointed out in decisions referred earlier. And the permission granted continues unabated, unaffected irrespective of variation in requirement. Necessity of landlord, again, does not entitle him to seek its revocation. Even his death cannot shorten the period. Similarly once period expires the agreement, the permission all cease to operate by operation of law. Nothing further is required. Vacation is not linked with landlord but with time. Expiry of it obliges tenant to vacate. If he docs not thcn. the landlord may approach controller for putting him in vacant possession. Which landlord? Obviously whosoever is the landlord at the time of efflux of tenancy. Death of landlord does not either shorten or enlarges period nor the consequences envisaged are altered or affected. " 16. In that connection the contention was raised that maxim of actio personalis moritur cum persona was applied to the case. The Supreme Court held that it did not apply both in principle and on facts. The actual observations of the Supreme Court are already excerpted above in para 13. Thus, it is clear that the decision in pukhraj's case turned upon the Provisions contained in Section 21 of the Delhi act. The right of the landlord to seek possession under Section 21 of the Delhi act did not depend upon the original landlord's survival as pointed out by the Supreme Court. It was the liability incurred by the tenant to vacate the premises on the expiry of the period for which the premises was leased out on obtaining the permission of the controller. That liability did not vanish on the death of the landlord. Its enforcibility did not depend upon the survival of the landlord. In this context, it was observed that the maxim of actio personalis moritur cum persona did not apply to the case either in principle or on facts. That liability did not vanish on the death of the landlord. Its enforcibility did not depend upon the survival of the landlord. In this context, it was observed that the maxim of actio personalis moritur cum persona did not apply to the case either in principle or on facts. In this context, it was also observed that in shantilal's case, it was held that the doctrine of actio personalis moritur cum persona did not apply to Rent Control Acts. This observation made with reference to shantilal's case has to be read in the context of the facts considered in shantilal's case. We have already pointed out that in shantilal's case the views expressed in phool rani's case were considered and in that context it was held that on the death of the landlord, the legal heirs of the landlord were entitled to continue the proceedings because the plea of the landlord was that the premises was required for himself and also for the members of his family. There are several grounds on which the possession of the premises can be sought by the landlord under Rent Control Act. For example, Section 21 (1) of the Karnataka Rent Control Act provides as many as 16 grounds described as clauses (a) to (p ). The grounds enumerated in clauses (a), (b), (c), (d), (e), (f), (g), (i), (k), (m), (n), (o) and (p) do not depend upon the survival or death of the landlord. The cause of action in respect of these grounds can continue even after the death of the landlord. Hence, the l. Rs. Of the landlord can continue the proceedings. The question as to whether the proceeding for eviction will survive on the death of the landlord will become relevant only when the eviction proceeding is based on the grounds enumerated in clauses (h), (j) and (1 ). Even in the case of clause (h) if the landlord pleads that he requires the premises for use and occupation for himself and or the members of his family, even on the death of the landlord, the proceeding can be continued by his legal representatives-the members of his family. Even in the case of clause (h) if the landlord pleads that he requires the premises for use and occupation for himself and or the members of his family, even on the death of the landlord, the proceeding can be continued by his legal representatives-the members of his family. In the case of a proceeding in which the possession is sought for non-residential purpose i. e. , for running a business or for one's own profession, if it is pleaded that the premises is required for carrying on the business by the landlord and/or by the members of his family or the business pleaded is a family business, the proceeding can be continued even on the death of the original landlord because, the requirement pleaded was not confined only to the landlord but it also covered the requirement of the members of his family. However, in the case of profession which is personal to the landlord such as legal profession, medical profession and any other profession which requires special accumen or a special qualification unless the members of his family are also carrying on the same profession and that is pleaded in the petition the proceeding will not survive on the death of the landlord because the very requirement pleaded in the petition would be that the landlord required the premises for carrying on his profession which was personal to him. Similarly, in the case of Section 21 (1) (j) of the Act, the requirement is that the landlord requires the premises reasonably and bonafide for immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting a new building in place of the premises sought to be demolished. Such a requirement can be the requirement of the landlord which is personal to him and which may not be the requirement of the other members of the family or the l. rs. Of the landlord, unless it is specifically pleaded that the members of the family of the landlord also require the premises for that purpose. Same would be the case which falls under Section 21 (1) (i) of the act. It is not possible to state in general terms or lay down the trite Rule that a particular proceeding will continue or will not continue, as it has to be decided on the pleadings of the case. Same would be the case which falls under Section 21 (1) (i) of the act. It is not possible to state in general terms or lay down the trite Rule that a particular proceeding will continue or will not continue, as it has to be decided on the pleadings of the case. We have already pointed out that the effect of the decisions of the Supreme Court in shantilal and pukhraj cases, that whether the proceeding under the rent act will survive on the death of the landlord or not would depend upon the actual pleas raised by the landlord and the ground on which the eviction is sought. It is in this context only we have just now pointed out that there are certain grounds which survive even after the death of the landlord and which can be continued. However, there arc certain grounds viz. , Clause 21 (1) (h) and (j) and (i) the continuation of the proceedings on the death of the landlord would depend upon specific plea raised by the landlord i. e. , the plea raised was a personal requirement of the landlord or whether it was for himself and/or also for the members of his family. We may also point out in this regard that in rajgopal v p, revanna by l. rs. , 1974 (1) kar. L. j. 425, k. Jagannatha shelly, j. , As he then was, held thus: "revanna died before the evidence commenced in the proceedings. His son who was impleaded as one of the legal representatives gave evidence. He stated that the shop is required by him to continue his father's business and there is no other premises available to him. Believing that evidence, learned munsiff held that the landlord has proved that the shop is reasonably and bonafide required by him for his personal occupation and if the possession is not given, it would cause him greater hardship. Those findings were affirmed by the district judge in the appeal preferred by the tenant. The contention urged before the appellate judge was, that the legal representatives of revanna had no right to continue the action for eviction on a plea which was different from that put forward by revanna. Those findings were affirmed by the district judge in the appeal preferred by the tenant. The contention urged before the appellate judge was, that the legal representatives of revanna had no right to continue the action for eviction on a plea which was different from that put forward by revanna. It was urged that the requirement of revanna that the premises were bona fide needed for his occupation was personal to him on his death, his legal representatives cannot continue the proceedings on the ground that the premises are required for their bona fide use and occupation. The learned judge rejected that contention while dismissing the appeal. He has held that the Provisions of Section 21 (1) (h) arc comprehensive enough and, the requirement contemplated therein is not merely the need of the landlord personally but also his wife or children or other dependents. The some contention has been pressed before me on behalf of the tenant. Under Section 21 (1) (h) of the Act, the landlord can ask for possession of any premises on the ground that the premises are reasonably and bona fide required for his personal occupation or for any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust, that the premises are required for occupation for the purpose of the trust. Revanna, in his application for eviction has stated that "the petition schedule shop is reasonably and bonafide required by him for the purpose of his business". He has never stated that the premises were required for his sons or for continuing his family business. His need was therefore, purely personal to him. Under Rule 3 of order 22, CPC where a sole plaintiff or sole surviving plaintiff dies and the right to sue survives the court, on an application made in that behalf, shall cause the legal representatives of the deceased plaintiff to be made a party and shall procccd with the suit or the proceeding. The legal representative of a deceased plaintiff can only prosecute the cause of action as originally framed. Sub-clause (ii) of Rule 4of order 22, CPC is more specific on this question. The legal representative of a deceased plaintiff can only prosecute the cause of action as originally framed. Sub-clause (ii) of Rule 4of order 22, CPC is more specific on this question. It provides that when a sole defendant or sole surviving defendant dies and the right to sue survives his legal representatives who are brought on record may make any defence appropriate to his character as legal representative of the deceased defendant. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased (see: j. c. chaterjee v Shri Sri kishan tandon, AIR 1972 SC 2526 ,2528 ). In my judgment, the position cannot be different for the legal representatives of the deceased plaintiff, when a plea of the deceased plaintiff was personal to him. A person who is brought on record under Rule 3 can raise only such pleas appropriate to his character as legal representative. Likewise, the defendant can raise no defence against the legal representative, other than what he could have raised against the deceased plaintiff himself. Such being the case, was it open to the legal representatives of revanna to raise a plea that the shop is required by them for their business and for their occupation, when no such plea was raised by revanna in his application for eviction. Under Section 21 (1) (h) revanna could have brought an action for eviction of the tenant on the ground that the premises were bona fide needed not only to him personally but also for the need of his sons or other dependents. He did not take up the cause of his sons or other relations. He pleaded that the premises were required for him for continuing his business. It was his personal requirement and on his death, his legal representatives cannot take up that plea and much less they could contend that the premises arc bona fide required by them. The tenant had no opportunity to put forward his defence against the bona fide requirements of the legal representatives of revanna. The evidence adduced in the case by the heirs of revanna that the premises were needed by them, was therefore, contrary to the pleadings in the case and cannot therefore be looked into. The learned judge, in my view, was in error in upholding the eviction order". The evidence adduced in the case by the heirs of revanna that the premises were needed by them, was therefore, contrary to the pleadings in the case and cannot therefore be looked into. The learned judge, in my view, was in error in upholding the eviction order". The facts of rajgopal's case and the case on hand are similar. Further we have also pointed out that survival of the cause on the death of the landlord depends upon ihe plea laiscd in a petition filed under Section 21 (1) (h) of the act. The aforesaid decision in rajgopal's case accords with our view expressed herein. Therefore, we affirm the view expressed in rajgopal's case. 17. In mohammed ghovse's case, kulkarni, j. , Relied upon phool rani's case. We have already pointed out that phool rani's case has been overruled by the supreme court in shantilal's case and it has also been further held in pukhraj's case that phool rani's case has been overruled by the decision in shantilal's case. In mohammed chouse's case, kulkarni, j. Has relied upon the first category of cases mentioned in para 13 of the judgment of the Supreme Court in phool rani's case and also the observations contained in para 14 therein. With reference to the exceptions mentioned in phool rani's case, the larger bench of the Supreme Court in shantilal's case as already pointed above held that on those exceptions no final opinion was expressed in phool rani's case and it was further held that the first exception mentioned in phool rani's case was neither sound nor correct. In addition to this in phool rani's case, itself their lordships observed that they have referred to some of the decisions in the three categories not with a view to determining their correctness but only in order to show that they rest on different principles or could be explained with reference to such principles. Their lordships further observed that they were concerned with the matter not involving the application of any of those principles and decided the case only on considering the nature of the claim made and the bundle of facts which constituted the plaintiffs cause of action and held that his right to sue did not survive to his l. rs. Their lordships further observed that they were concerned with the matter not involving the application of any of those principles and decided the case only on considering the nature of the claim made and the bundle of facts which constituted the plaintiffs cause of action and held that his right to sue did not survive to his l. rs. Kulkarni, j. , No doubt referred to the decision in shantilal's case but nevertheless proceeded on the basis that the decision in shantilal's case did not disapprove the principle laid down in phool rani's case whereas it was not so as a matter of fact, the Supreme Court held that phool rani's case was not correctly decided. Kulkarni, j. , Also distinguished the decision in rajgopala's case and further held that rajgopala's case did not take note of the decision decision in g. c. joshi by l. rs. and another v p. Kuppuswamy and another, 1982 (2) klc 230 was also distinguished on the ground that the decisions in phool rani's and shantilal's cases, were not considered. In view of the discussion made above, it is not possible to agree with kulkarni, j. , That phool rani's case has not been overruled in shantilal's case. Therefore, it is not possible to hold that the decision in mohammed chouse's case has laid down the law correctly. Therefore, it has to be overruled. We accordingly, overrule the decision in mohammed chouse's case. 18. The facts involved in bharat petroleum corpn. Ltd. V revanappa sangappa by l. rs. , 1983 (2) kar. L. j. 505 decided by kulkarni, j. , Were that the landlord sought for possession of the premises under Section 21 (1) (1) of the act. The said provision reads thus: "that where the premises are land, such land is reasonably and bonafide required by the landlord for the erection of a new building which a local authority or other competent authority has approved or permitted to build thereon". The landlord sought for possession on the ground that he reasonably and bona fide required the premises for purposes of erecting a building to run a boarding in order to earn more money. The munsiff dismissed the petition. The district judge took a different view and set aside the order of the munsiff and allowed the eviction petition. The tenant came up with revision petition before this court. The munsiff dismissed the petition. The district judge took a different view and set aside the order of the munsiff and allowed the eviction petition. The tenant came up with revision petition before this court. During the pendency of the revision petition, the landlord died on 9-2-1977. The question that arose for consideration was as to whether the l. rs. Could continue the petition. In other words the question for consideration was whether the cause of action survived to the l. rs. Of the deceased landlord. Kulkarni, j. , Following the decisions in rajagppala 's case, p. Hajee abdul subhan sahib v Madras general hardware, 1971 (2) mys. Lj. 18 and kalappanahalli gowdra smddappa's case, crp No. 2495/1973, dated 17-1-1975 held that on the death of the landlord, the cause of action that was available to the original landlord did not survive to the l. rs. Accordingly, he allowed the revision petition and set aside the order of eviction. Thus, this case was decided on the plea raised by the landlord that he required the premises reasonably and bonafide for the erection of a new building. This decision accords with the view expressed by us as it is decided on the basis of the plea raised by the landlord and the ground falling under Section 21 (1) (1) of the act. As we have already overruled the decision in mohd. Chouse the conflict that was pointed out between the decisions in mohd. Chouse and bharat petroleum does not survive. 19. We may also point out that the definition of the word 'landlord' for the purpose of Section 21 (l) (h) of the act has to be read with the explanation provided to sub-section (4) of Section 21 of the act. Chouse the conflict that was pointed out between the decisions in mohd. Chouse and bharat petroleum does not survive. 19. We may also point out that the definition of the word 'landlord' for the purpose of Section 21 (l) (h) of the act has to be read with the explanation provided to sub-section (4) of Section 21 of the act. The definition of the word 'landlord' as contained in Section 3 (h) of the act is as follows:" 'landlord' means any person who is for the time being receiving or entitled to receive, rent in respect of any premises whether on his own account or on account, or on behalf, or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant; and includes any person not being a tenant who from time to time derives title under a landlord; and further includes in respect of his subtenant a tenant who has sublet any premises". The explanation to sub-section (4) of Section 21 provides that for the purpose of clause (h) of the proviso to sub-section (1), the expression 'landlord' shall not include a rent-farmer or rent- collector or estate manager. Therefore, it is contended by the respondent-landlord, that it is only three categories of landlords, viz. , The rent farmer, rent collector and estate manager are excluded from maintaining a petition under Section 21 (1) (h) of the act. As the l. rs. Of the deceased landlord do not fall under anyone of the aforesaid three categories and as they become entitled to receive rent on the death of the landlord being the l. rs. They fall within the definition of the word 'landlord' and as such they are entitled to continue the petition under Section 21 (1) (h) of the act on the death of the original landlord. It is no doubt true that the l. rs. Of the landlord arc not excluded form the definition of the word 'landlord'. In a petition field under Section 21 (1) (h) of the act they become landlords, as the l. rs. On the death of the original landlord. But this does not in any way help the respondent because the right to continue the cause by the l. rs. Of the landlord arc not excluded form the definition of the word 'landlord'. In a petition field under Section 21 (1) (h) of the act they become landlords, as the l. rs. On the death of the original landlord. But this does not in any way help the respondent because the right to continue the cause by the l. rs. In a petition under Section 21 (1) (h), in turn, depends upon the plea raised in the petition viz. , As to whether the possession of the premises is sought on the ground that it is required for the landlord and/or for the members of his family. If no plea is raised in the petition that the premises is also required for the use and occupation of the members of the family and/or for running the business in the case of seeking possession for non-residential purpose that the premises are required by the landlord and/or by the members of his family, the cause will not survive on the death of the landlord. As already pointed out in the instant case, the original landlord has not pleaded that the premises are also required by the members of his family to run the business. The original landlord pleaded that he himself required the premises for running the business, in order to maintain his family. Therefore, it is not possible to hold that the l. rs. Of the deceased landlord falling within the definition of the word 'landlord' are entitled to continue the proceedings because there is no plea that they also reasonably and bonafide required the premises for running the business. Therefore, the petition has to fail. 20. For the reasons stated above, point No. 1 is answered as follows: in the light of the plea raised by the original landlord, the cause of action perished with the death of the original landlord as such the legal representatives of the landlord are not entitled to continue the proceeding, 21. On point No. 2, we affirm the view expressed in rajgopal's case and bharat petroleum's case and overrule the decision in mohd. Chouse's case. 22. Point np. On point No. 2, we affirm the view expressed in rajgopal's case and bharat petroleum's case and overrule the decision in mohd. Chouse's case. 22. Point np. 3:- in the light of the finding recorded on point No. 1, no other reasoning is required to hold that the the order of eviction is liable to be interfered with because the cause on which the order of eviction is passed has ceased to exist during the pendency of the proceeding. 22. However, it is contended by Sri hegde, learned counsel for the respondent that as the death has taken place after an order of eviction is passed, a right is accrued to the l. rs. Of the deceased landlord, therefore, it is open to the l. rs. To defend the decree on the ground on which the eviction is sought. In the facts and circumstances of the case and in the light of the observations made in para 6 of the decision of the. Supreme court in shantilal's case, the question does not depend upon the fact that the death of the landlord has taken place after the passing of the decree for eviction. The question depends upon as to whether on the death of the landlord and in the light of the cause pleaded in the petition whether it survives to the l. rs. The order of eviction had not become final. As per Section 50 of the Act, it had been challenged in a revision before the district court. The revision was a continuation of the proceeding and as such the proceeding had not become final. When no finality is reached and during the pendency of the proceeding the cause ceases to continue and it does not survive, the fact that an order of eviction is passed will not by itself be sufficient to hold that the l. rs. Can continue the proceeding. Hence, it is not possible to accept the contention of the learned counsel for the respondent. It is accordingly rejected. Accordingly, point No. 3 is answered in the affirmative. 22. For the reasons stated above, the revision petition is allowed. The order dated 24-7-1984 passed by the district judge, dharwad in c. r. p. 276/1982 confirming the order dated 1-10-1982 passed by the ii additional munsiff, dharwad in h. r. c. No. 69/1980 is set aside. It is accordingly rejected. Accordingly, point No. 3 is answered in the affirmative. 22. For the reasons stated above, the revision petition is allowed. The order dated 24-7-1984 passed by the district judge, dharwad in c. r. p. 276/1982 confirming the order dated 1-10-1982 passed by the ii additional munsiff, dharwad in h. r. c. No. 69/1980 is set aside. Consequently, the petition for eviction in h. r. c. No. 69/1980 is dismissed. In the facts and circumstances of the case, each party shall bear the costs in all the courts. --- *** --- .