Martin and Harish (Pvt) Ltd v. Prem Chand — 1996 DIGILAW 847 (RAJ)

Honble MADAN, J. – Heard the learned counsel for the parties regarding maintainability of the application moved by the applicants u/O 22, R.10 CPC r/w Sec 146 CPC. (2) In this Second Appeal on issuing notices to the respondent no body has appeared of behalf of the respondent. On 21.3.1996, an application was filed u/s 151 CPC on behalf of the applicants for issuance of notices to the respondent at his new address and also for giving the notice Dasti to the counsel for the appellant for effecting service on the respondent. The notice was given Dasti to the learned counsel for the appellants on 25.3.1986 and the office report dated 27.3. 1996 indicates that the Court notices ware issued to the respondent for service through D.J., Jaipur City, Jaipur and the notice was received back duly served as per the report dated 27.3.1996. (3) On 3.4.1996 an application was moved in this court on behalf of six applicants, namely, Narendra Mehta, Smt. Kiran Sharma , Anil Mehta, Omprakash Sharma, Suresh Kumar Sharma and Rajendra Mehta, u/O 22 Rule 10 r/w Sec. 146 CPC for their impleadment as party-respondents to this appeal on the ground inter-alia that a suit had been filed by the plaintiff-respondent Prem Chand against the defendant-appellant regarding the suit property in question for eviction of the appellants from the suit premises under the Rajasthan Premises(Control of Rent & Eviction) Act, 1950 (for short `the Act) on the grounds of reasonable and bonafide personal necessity, nuisance, substantial damage and default in payment of rent. The learned trial court vide itsorder and decree dated 28.4.1979 in suit No. 413/71 partly decreed the same only on the ground of bona fide personal necessity of the plaintiff while declined the relief to the plaintiff as regards other grounds. Aggrieved by the said eviction order and decree, the respondent- landlord preferred an appeal before District Judge, Jaipur and AddI. District Judge No. 4, Jaipur City, Jaipur vide his judgment and decree dated 19.2.1987 dismissed the appeal preferred by the appellant and upheld the judgment and decree of the learned trial court for eviction of the defendant on the ground of personal and bona fide necessity of the plaintiff- respondent. (4) Against the concurrent findings of the Courts below the present second appeal has been preferred to this Court which was admitted for hearing on 17.4.1987. (4) Against the concurrent findings of the Courts below the present second appeal has been preferred to this Court which was admitted for hearing on 17.4.1987. (5) In their application for impleadment in the appeal, the applicants have contended that they are the bona fide purchasers for consideration of the property in dispute from the respondent- plaintiff who sold the property to them through five registered sale-deeds which were executed in their favour on 23.12.1995. It has been further contended that Shri Prem Chand- respondent has transferred the property to the applicants- purchasers and had passed on a valid title in their favour and that the respondent has thus no concern whatsoever with the property in question. It has been further contended in the application that the applicants-purchasers have thus become entitled as of right to be substituted as party -respondents in place of the respondent Prem Chand in as much as the said plaintiff has got no right, title or interest in the disputed property and that the applicants have absolute right over the said property in view of the provisions of O.22 R. 10 CPC. It has been further contended that the subsequent purchasers during the pendency of a suit can be substituted as of right or they can await the result of the litigation. The applicants have also contended that they are directly interested in the litigation being the owner of the property dispute and the grounds which were available to the plaintiff Prem Chand are also available to the subsequent purcha- sers-applicants during the pendency of the litigation. Hence the applicants are necessary parties to be impleaded as respondents in this appeal. (6) In the reply to this application filed on behalf of the appellants it has been contended that the application is misconceived and as such merits rejection outrightly since a dmittedly on the applicants own saying, the respondent in the appeal as alleged, had sold the property to the applicants which is the subject-matter of the appeal. The suit for eviction was filed against the respondent -plaintiff on the grounds of reasonable and bona fide personal necessity, substantial damage, nuisance etc., and the suit was decreed by the trial court only on the ground of reasonable and bonafode personal necessity of the respondent-plaintiff. The suit for eviction was filed against the respondent -plaintiff on the grounds of reasonable and bona fide personal necessity, substantial damage, nuisance etc., and the suit was decreed by the trial court only on the ground of reasonable and bonafode personal necessity of the respondent-plaintiff. It has been further contended that since the bonafide requirement of the respondent-plaintiff was his personal bonafide requirement to occupy the suit premises which he had admittedly sold vide the sale-deeds, as referred to above to the present applicants, the bonafide requirement of the said plaintiff now does not survive as against the applicants since he had admittedly sold the property in question which fact is also borne out from the non- appearance of the plaintiff-respondent since he did not appear before this Court despite notices having been issued and duly served upon him twice. On merits, it has been contended on behalf of the appellants that since the suit was decreed only on the ground of reasonable and bonafide personal nece- ssity of the plaintiff- respondent and the relief was declined by the trial court in respect of the other grounds of default in payment of rent, nuisance and substantial damage and since the bonafide necessity of the said plaintiff does not survive as he had sold the property in question the applicants-purchasers, no cause of action survives in theirfavour and they are not entitled to take any benefit of the decree of enction passed against the appellants on the ground of his personal and bonafide necessity. (7) During the course of hearing learned counsel for the appellants has contended at the bar that it is not open to the applicants to agitate the grounds of eviction or to contest this appeal since they are not parties to the appeal and their application for impleadment as parties at this stage is not maintainable since the cause of action does not survive in their favour and they cannot be permitted to raise any grievance regarding their personal and onafide necessity in the present appeal. It was, therefore, contended by the learned counsel for the appellants that if any fresh ground is available to the applicants under the law, they may file another suit on a fresh cause of action against the appellants in accordance with law. It was, therefore, contended by the learned counsel for the appellants that if any fresh ground is available to the applicants under the law, they may file another suit on a fresh cause of action against the appellants in accordance with law. It has been further contended by the learned counsel for the appellants that the decree of eviction passed by the trial Court dated 28.4.1979 which was confirmed by the first appellate Court vide its order dated 19.2.1987 has consequently become in executable and non-est in the eye of law since the plaintiff respondent has admit- tedly sold the property in question to the applicants- purchasers during the pendencey of the proceedings. (8) In support of his contentions advanced at the bar, leaned counsel for the applicants-purchasers has placed reliance on the provisions of O.22 R. 10(i) CPC which reads as under :– ``10(1). In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, be leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (9) Learned counsel for the applicants has vehemently contended at the bar that the applicants being the bonafide purchasers of the property in question and since a valid title has passed on to them on the basis of the sale-deeds having been executed in their favour by the respondent- plaintiff, they are entitled to be impleaded as of right as necessary parties to this appeal. In support of the his contentions, learned counsel for the applicants has placed reliance upon the follo- wing judgments :– Kesardeo vs. Bhooridevi & Ors.(1). M/s Shiv Shankar Prasad vs. U.O.I(2). Naresh Ahir & Ors. vs. Mst. Barhiya & Anr.(3) (10) In the matter of Kesardeo vs. Smt. Bhooridevi (supra), this was a case u/s 13(1)(a) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 filed by the landlord against the tenant on the ground of default committed by the tenant in payment of rent. It was held by the court that the transferee- landlord can take advantage of defaults committed by the tenant with previous landlord for instituting the case for eviction within the ambit of the aforesaid provisions of the Act. (11) In the matter of M/s Shiv Shankar Prasad vs. U.O.I (supra), the suit was decreed by the trial court. It was held by the court that the transferee- landlord can take advantage of defaults committed by the tenant with previous landlord for instituting the case for eviction within the ambit of the aforesaid provisions of the Act. (11) In the matter of M/s Shiv Shankar Prasad vs. U.O.I (supra), the suit was decreed by the trial court. In the appeal, the appellate Court set aside the judgment of the trial Court on merits and passed a decree in favour of the defendant but held that the written statement was not properly verified and defence taken therein should not be looked into. It was held by the Patna High Court that in second appeal preferred by the plaintiff in the cross- objections whereby the applicant bad hought to challenge the findings of the lower court regarding improper verification of the written statement were not tenable and that the cross- objection is contemplated u/O. 41 R. 22 CPC only when the respondent could have also appeared independently against the decree and the finding must be such on which the finding of the decree is founded. It is only in such a situation that the cross- objection to that part of the decree which is passed on such findings, can be filed. 11-A In the matter of Naresh Ahir vs. Mst. Barhiya (supra), was a case where no cross-objections or appeal were filed by the respondents challenging the findings of the trial Court. It was held by the Patna High Court that the respondent is still entitled to assail the finding before the appellate Court while supporting a decree in view of the provisions of O.41 R.22 CPC. Barhiya (supra), was a case where no cross-objections or appeal were filed by the respondents challenging the findings of the trial Court. It was held by the Patna High Court that the respondent is still entitled to assail the finding before the appellate Court while supporting a decree in view of the provisions of O.41 R.22 CPC. (12) In my considered opinion the ratio of the aforesaid decisions do not help in advancing the case of the applicants-purchasers in any manner whatsoever since this is neither a case of cross-objections to an appeal filed by the respondent where a party gets a right to assail the findings before the appellate Court while supporting a decree passed by the trial Court nor is a case where the suit for eviction of the respondent was decreed on the ground of default in payment of rent but rather the suit was decreed on the ground of reasonable and bona fide personal necessity of the respondent- plaintiff which was a right in personam being a personal right of the said plaintiff himself and not of the present applicants who are the subsequent purchasers of the property in question. I am further of the opinion that the ground of reasonable and bonafide requirement for filing an eviction suit under the Act is available to a party who is directly effected and does not survive to the subsequent purchaser after the plaintiff had transferred his rights, title and interest in the demised premises by executing a registered sale-deed in favour of the subsequent transferees of the property who have purchased the same. (13) In support of his contentions advanced at the bar, learned counsel for the appellants has placed reliance upon the following judgments:- Surrinder Kumar Goyal vs. B.N. Javeri, (4), R.B. Kapoor vs. Manek N. Dastur, (5), M.M Quasim vs.Manohar Lal,(6), Hasmat Rai vs. Raghunath Prasad,(7), Sheikh Jehangir vs. Smt. S. Kaushilya Bai & Ors.,(8). (13) In support of his contentions advanced at the bar, learned counsel for the appellants has placed reliance upon the following judgments:- Surrinder Kumar Goyal vs. B.N. Javeri, (4), R.B. Kapoor vs. Manek N. Dastur, (5), M.M Quasim vs.Manohar Lal,(6), Hasmat Rai vs. Raghunath Prasad,(7), Sheikh Jehangir vs. Smt. S. Kaushilya Bai & Ors.,(8). (14) In the matter of Shiekh Jahangir vs. Smt. Kaushilya Bai(supra), the question which had arisen for consideration of the Apex Court was as to whether the finding recorded by the trial court which had decreed the suit of the landlord on the ground of reasonable and bonafide requirement of the plaintiff-landlord could survive in favour of the subsequent transferee/purchasers of the property in dispute and whether by mere sale, transfer or assignment of thesaid property subsequent purchaser could get a right to execute the decree against the tenant on the basis of a registered sale -deed executed in favour of the purchaser ? In this case an eviction suit was filed by the plaintiff-landlord against the tenant in respect of the property in dispute on the ground of his bonafide requirement u/s. 10(iii)(c) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The suit was decreed by the learned trial court and was also upheld by the first appellate Court. In second appeal the High Court treated the sale of the property in question as a subsequent event necessitating remand of the suit to the trial Court for a fresh disposal and the present purchaser on remand was impleaded as a party-respondent. In the Special Leave Petition preferred before the Apex Court, it was held that finding recorded by the trial Court on the question of bonafide requirement of the previous landlord who was plaintiff in the said eviction petition did not survive after the plaintiff had transferred his right, title and interest in the demised premises by executing a registered sale- deed in favour of the subsequent purchaser. It was held by the Apex Court that there is a clear inhibition contained in the Act of 1960 against the institution of a suit by the purchaser on the ground of bonafide and reasonable personal necessity for a period of 3 months from the date of the purchase and, therefore a suit could not be brought by the purchaser till the expiry of the said period calculated from the date of sale and the only remedy which was available to the plaintiff after the suit was remanded was to seek liberty to withdraw the same. If the purchaser intended to institute a fresh suit, he could do so for his per- sonal requirement which he never did. Consequently the suit for eviction was dismissed and the judgment and decree passed by the High Court stood vacated and the appeal was accordingly allowed by the Apex Court. (15) I am in full agreement with the aforesaid findings of the Apex Court and in my considered opinion, the ratio of the aforesaid judgment of the Apex Court is fully applicable to the present case. In view of the aforesaid judgment of the Apex Court I am of the considered opinion that no cause of action survives in favour of the applicants-purchaser and the application moved by the applicants- purchasers u/O 22 R.10 r/w Sec. 146 CPC is misconceived and the applicants being not necessary parties are not entitled to be impleaded as parties- respondents in the present appeal. The application is therefore, rejected. The eviction order having become a nullity, no cause of action survives. Consequently the appeal is allowed. The eviction order dated 28.4.1979 in Case No. 413/71 which was confirmed by the first appellate Court vide its judgment and decree dated 19.2.1987 is quashed and set aside. I am further of the opinion that the dismissal of the suit will not preclude the applicants- purchasers from bringing a fresh suit on such other grounds which may be available to them in accordance with law. There will be no order as to costs.