Research › Search › Judgment

Rajasthan High Court · body

2003 DIGILAW 914 (RAJ)

Kanhaiya Lal v. LRs of Late Amoli Bai

2003-07-04

P.C.TATIA

body2003
Honble TATIA, J.–Heard learned counsel for the parties. (2). Brief facts of the case are that the plaintiff Amoli Bai in her lifetime filed a suit for eviction against defendant Kanhaiya Lal appellant for the shop in dispute. The plaintiff Amoli Bai pleaded that shop in dispute is required for running a Medical Shop by Amoli Bai herself and, therefore, there is personal bonafide need of the suit premises. It is also submitted that the defendant-tenant wrongfully trespassed and took forcible possession over the staircase, side room and a ceiling, which are not the part of the lease property. The defendant-tenant started cooking sweets over the roof, resulting into causing nuisance. the plaintiff Amoli Bai also claimed damages for unauthorized use of the property. (3). The suit was contested by the defendant-tenant-appellant denying the plaint allegations. The defendant also took a plea that initially shop was left out by Sh. Dayal Das husband of Amoli Bai. Dayal Das expired leaving behind other heirs also, therefore, she alone could not have filed the suit for eviction against the defendant-tenant. During the pendency of the suit, the plaintiff Amoli Bai expired on 2.08.1987 and an application under Order 22 Rule 3 CC was filed, upon which sons of the plaintiff Amoli Bai, Sh. Laxman Das and Chandrabhan were taken on record. After becoming parties, the legal representatives of Amoli Bai amended the plaint and pleaded that the suit property is required for personal necessity of their sons Anil Kumar S/o Chandrabhan and Vijay Kumar S/o Laxmandas, so that they may run the Medical Shop with General Store. (4). The suit was decreed by the trial court by judgment and decree dated 6.12.97. The appellant-defendant-tenant preferred an appeal against the said judgment and decree dated 6.12.97, which was dismissed by the First Appellate Court by judgment and decree dated 28.3.2003. (5). The appellant preferred this appeal against the judgments and decrees passed by the courts below. (6). Learned counsel for the appellant submits that the trial court committed illegality in permitting amendment in the plaint by which the ground of personal necessity of grand-sons of deceased Amoli Bai, who are sons of Chandrabhan and Laxmandas, was permitted to be taken as ground of eviction against the appellant-tenant. (6). Learned counsel for the appellant submits that the trial court committed illegality in permitting amendment in the plaint by which the ground of personal necessity of grand-sons of deceased Amoli Bai, who are sons of Chandrabhan and Laxmandas, was permitted to be taken as ground of eviction against the appellant-tenant. According to learned counsel for the appellant, the ground of personal necessity is a personal to person and it comes to an end with the death of the person and here in this case, the original need was of the Smt. Amoli Bai and with the death of Smt. Amoli Bai on 2.08.1987, the cause of action itself came to an end. Learned counsel for the appellant relied upon the judgment of the Honble Supreme Court delivered in the case of Smt. Phool Rani & Ors. vs. Naubat Rain Ahluwalia (1), and judgment of this court in Rajendra Kumar vs. Nazmul Gani & Ors. (2). (7). The matter decided by Honble Supreme Court in the case of Smt. Phool Rani (supra), was under the provisions of the Delhi Rent Control Act (59 of 1958). In that case, eviction from premises was sought on the ground of personal necessity of the plaintiff for occupation as residence for himself and members of his family. The said eviction application was dismissed by the Addl. Rent Controller on preliminary ground that notices to quit were not valid. the plaintiff filed appeal, but during pendency of the appeal plaintiff died and his legal representatives appellant No. 1 to 4, who are the widow, son and two married daughters of the plaintiff, were brought on record. The tribunal hearing appeal, set aside the decision of the Rent Controller on preliminary ground and remanded the eviction application for decision on merits. The order of remand was challenged, but no stay order was granted in second appeal, therefore, the Addl. Rent Controller proceeded with the ejectment application and ultimately passed the order of eviction against the tenant. This order of eviction dated 14.2.69 was challenged by filing appeal by the tenant before the tribunal. In appeal, it was contended that right of sue did not survive to the heirs of the plaintiff. Rent Controller proceeded with the ejectment application and ultimately passed the order of eviction against the tenant. This order of eviction dated 14.2.69 was challenged by filing appeal by the tenant before the tribunal. In appeal, it was contended that right of sue did not survive to the heirs of the plaintiff. The tribunal rejected that contention and confirmed the order of eviction on merits, but the High Court in second appeal held that right to sue did not survive to the heirs of the plaintiff and dismissed the ejectment application with liberty to legal representatives to bring a fresh proceeding founded on their own requirements. The matter was taken up before the Honble Supreme Court. The Honble Supreme Court in para No. 7 observed as under:- ``7. The survival of the right to sue on the death of a plaintiff is a problem that has often to be solved on a permutation of several facts and circumstances. But it would be out of place in this judgment to embark upon an abstract disquisition of the question as abstract disquisition of the question as to in what classes of cases, the right to sue survives in favour of the legal representatives. (8). The Honble Supreme Court further held that right of personal requirement perish with the plaintiff. In view of the settled position of law that personal cause of action perish with the person, there is not dispute and there cannot be, but Honble Supreme Court in this very judgment in para No. 12 observed as under:- ``Indeed, it is difficult to see how, without a fundamental alteration of the pleadings, appellants could continue the proceedings. (9). Here in this case important fact distinguishing this case from the above referred case is that the suit was not based solely on the ground of personal necessity of the plaintiff so as to abate with the end of ground of eviction based on personal necessity of the plaintiff. There were many other grounds, which were not personal to the plaintiff Amoli Bai. Therefore, the legal representatives of Amoli Bai were entitled to prosecute the suit for decree for eviction against the defendant-tenant even after end of cause of action for eviction on the ground of personal necessity of plaintiff Smt. Amoli Bai. The legal representatives after the death of Amoli Bai became plaintiff by substitution. Therefore, the legal representatives of Amoli Bai were entitled to prosecute the suit for decree for eviction against the defendant-tenant even after end of cause of action for eviction on the ground of personal necessity of plaintiff Smt. Amoli Bai. The legal representatives after the death of Amoli Bai became plaintiff by substitution. The accrual of cause of action for eviction on the ground of personal necessity of the sons of the plaintiffs is a subsequent event. Therefore, the legal representatives of Amoli Bai as plaintiff continuing with the suit of eviction against the tenant on other grounds, were entitled to seek eviction on the ground of accrual of cause of action subsequent to filing of the suit to avoid multiplicity of the proceedings. It would have been different thing if the ground of personal necessity is the only ground of eviction. In that case, the suit may abate. The Honble Supreme Court, also therefore, left it open for the courts to decide in which was suit will abate on the death of plaintiff. The insertion of cause of action in a suit after the complete end of cause of action is required to be distinguished from adding more ground of eviction in eviction suit against tenant. In a case where landlord filed suit on various grounds including a ground of personal to the plaintiff and due to death of the plaintiff other grounds do not fall and legal representatives of the plaintiff can continue the suit after the death of the original plaintiff for rest of the ground for eviction then addition of some more grounds like ground of personal necessity is not substitution of entire cause of action, but pleading an additional ground for seeking eviction and that is permissible in view of the reason that as far as possible there must be one suit with respect to the subject matter and as far as practicably all the grounds be taken in one suit to avoid multiplicity of the court proceedings. Therefore, the judgment relied upon by learned counsel for the appellant wherein the pleadings were not amended by the legal representatives of original plaintiff and eviction proceedings continued on the basis of the personal need of the plaintiff, has no application to the facts of this case where the suit was based on various other grounds than the ground of personal necessity of the plaintiff and the legal representatives were permitted to amend the pleadings and defendant was given full opportunity to contest the suit and the defendant contested the suit on the question of personal bonafide necessity of the plaintiffs for their sons. (10). The another judgment relied upon by learned counsel for the appellant is delivered in the case of Rajendra Kumar (supra). It is suffice to say that, was the matter, which came up before this court in the proceedings whereby the trial court allowed the application under Order 6 Rule 17 CPC permitting the plaintiff to plead the necessity of another son of the plaintiff. The facts given in the order dated 5.08.2002 of this court itself reveal that this court found that initially suit was filed for the necessity of the plaintiffs son Usman Gani, who subsequently joined the legal profession and tenant brought this fact to the notice of the court by making an application under Order 6 Rule 17 CPC then the landlord sought the amendment of the plaint to incorporate the ground of requirement of Anwar Gani in place of need of Usman Gani. In the facts, this court observed that this cause of action was invented, after the defendant got his written statement amended and after the factum of joining legal profession by Sh. Usman Gani, was brought on record. Therefore, the court held that there was no good ground to allow the application for amendment of the plaint. The above judgment has no application to the facts of this case as in this case it cannot be said that the ground of need of two sons of the plaintiffs is an invented ground for eviction as it accrued after the end of need of Amoli Bai due to her death on 2.08.1987. (11). The above judgment has no application to the facts of this case as in this case it cannot be said that the ground of need of two sons of the plaintiffs is an invented ground for eviction as it accrued after the end of need of Amoli Bai due to her death on 2.08.1987. (11). Learned counsel for the appellant though tried to submit that on merits regarding personal bonafide need of the sons of the plaintiffs is wrong, but could not point out any error in the finding recorded by the courts below. (12). Learned counsel for the appellant submitted that the plaintiff sought relief of possession of the stairs, roof and one Pedhi on the ground that defendant encroached upon these portions. According to learned counsel for the appellant, the appellant has not paid any court fees for this relief and he could not have included relief of possession for these properties in the suit for eviction filed under the provisions of the State Rent Control Act. The grievance of the appellant on this ground also is having no substance in view of the fact that though the plaintiff pleaded that defendant encroached upon the above properties of the plaintiff, but the defendant himself submitted that the said properties were included in the tenancy of the defendant in the year 1982 and the rent was increased. In has been held by this court in Bhagwanram vs. Thakurji Shri Hanumanji Maharaj (3), through next friend Sampatraj that where taking possession of another part of building is an assertion to a right of tenancy by the tenant then the decree of eviction can be passed for the above trespassed property and it requires no separate court fees for getting the decree for eviction for trespassed property and it was further held that prayer for possession of trespassed portion is incidental to that of the recovery of possession of demised property. Learned counsel for the appellant also could not substantiate his next plea with support of any provision of law or authority or reason that one of the landlord or successor of the original landlord cannot maintain the suit for eviction against the tenant. (13). Learned counsel for the appellant also could not substantiate his next plea with support of any provision of law or authority or reason that one of the landlord or successor of the original landlord cannot maintain the suit for eviction against the tenant. (13). Learned counsel for the appellant tried to challenge the finding of the courts below recorded on issue No. 6 with respect to the ground of sub-letting of the suit premises in dispute by the defendant-tenant to his brother Mohanlal. But after going through the entire reasonings given by both the courts below, I am of the view that this is a pure question of fact and the finding is based on sound, factual and legal grounds which cannot be interfered in second appeal. (14). Therefore, I do not find any force in this appeal and the same is hereby dismissed.