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2005 DIGILAW 2746 (RAJ)

Narendra Nath v. Krishna

2005-10-20

DINESH MAHESHWARI

body2005
Judgment Dinesh Maheshwari, J.- This second appeal against the Judgment and decree dated 27.02.1997 passed by the Additional District Judge No. 2, Bikaner in Civil Appeal No. 96/1996 was admitted on 28.07.1997 while formulating the following substantial questions of law for consideration in this appeal:- “(1) What is the effect of the death of plaintiff Radha Krishna, during the pendency of first appeal, on the ground of whose personal need the suit was decreed by the trial Court on the proceedings? (2) What is the effect of not bringing the LRs of Radha Krishna on record within the prescribed time in the first appeal? (3) Whether in the circumstances of the case the tenant appellant will have to suffer a decree, the very basis of which has been knocked out because of death of the plaintiff on the ground of whose personal need the decree was passed?” 2. A perusal of the record of present appeal shows that that a suit was filed by the plaintiffs Sri Krishna, Hari Krishna and Radha Krishna against the present appellant Narendra Nath for eviction from the suit premises which is a shop situated at Gajner Road, Near Railway Crossing, Bikaner on the ground of default in payment of rent; non-user of suit premises by the tenant; and reasonable bona fide requirement of the landlord of the suit premises particularly for the plaintiff No. 3 Radha Krishna. Written statement of the defendant was not taken on record and, therefore, no issues were framed. After taking evidence and hearing the parties, the learned trial Court held the reasonable and bona fide requirement having been proved and that the plaintiffs were likely to suffer comparatively greater hardship if decree for eviction be not granted; the trial Court also found that the suit premises were not being used regularly for six months prior to filling of the suit for the purposes for which they were let out and, therefore, granted decree for eviction on the ground of reasonable and bona fide requirement and so also on the ground of non-user of the premises. 3. The first appeal against decree for eviction filed by the defendant-appellant Narendra Nath was pending before the appellate Court when the plaintiff No. 3 Radha Krishna expired and the defendant-appellant failed to seek substitution of his legal representatives on record. 3. The first appeal against decree for eviction filed by the defendant-appellant Narendra Nath was pending before the appellate Court when the plaintiff No. 3 Radha Krishna expired and the defendant-appellant failed to seek substitution of his legal representatives on record. The learned appellate Judge considered the abatement of appeal qua the plaintiff-Radha Krishna and found that in those circumstances, the decree for eviction in favour of Radha Krishna on the basis of reasonable and bona fide requirement became final. The learned Judge also observed that the suit premises were not being used for the purposes for which they were let out and the finding in that regard was also affirmed. Consequently, the appeal was dismissed. 4. The defendant-appellant has come up in second appeal which has been admitted on 28.07.1997 while formulating the substantial question of law, as noticed hereinbefore. 5. Learned Counsel appearing for the respondents No. 3/1 to 3/5, who are the legal representatives of the deceased plaintiff No. 3 Radha Krishna and have been arrayed as parties to this second appeal, submitted an application on 112.2004 pointing out that the plaintiff -respondent No. 3 Hari Krishna had expired at Bikaner on 112.2003 and the plaintiff -respondent No. 1 Sri Krishna had expired on 06.06.2004. When the matter was taken up by the Court on 22.09.2005, learned Counsel for the appellant submitted that despite information, he had not been able to receive appropriate instructions in relation to the facts stated in the application and he was not in a position to controvert the same. In the aforesaid view of the matter, no substitution having been prayed in relation to the deceased respondents No. 1 and 2, it was ordered on 22.09.2005 that this appeal has abated as against the respondents No. 1 and 2. However, learned Counsel for the appellant sought time to make submissions that despite such abatement, the appeal would survive against the respondents No. 3/1 to 3/5. 6. Today, learned Counsel for the appellant has attempted his best to make submissions that as the plaintiffs were the co-owners of the suit property and even if the respondents No. 1 and 2 have died, the legal representatives of the plaintiff No. 3 Radha Krishna are on record as respondents No. 3/1 to 3/5 and, therefore, this appeal would not abate. Learned Counsel for the respondents No. 3/1 to 3/5 strenuously opposed these submissions and pointed out that the respondents No. 3/1 to 3/5 were never substituted in first appeal and have although been joined as parties in this appeal but have never been ordered to be substituted in place of deceased respondent Radha Krishna; neither the appeal is properly constituted nor it would survive. 7. Having given a thoughtful consideration to the rival submissions and having regard to all the facts and circumstances of the case, this Court is clearly of opinion that after the death of respondents No. 1 and 2 and abatement of the appeal against them, this appeal does not survive and abates as a whole. 8. So far the respondents No. 3/1 to 3/5 are concerned, they were never substituted in place of the deceased plaintiff No. 3 Radha Krishna before the first appellate Court and that was the precise reason for which the first appeal itself abated. The appellant has moved applications alongwith the present appeal for substitution of the legal representatives of the deceased plaintiff Radha Krishna and for condonation of delay and while admitting this appeal, a notice of the applications submitted by the appellant has also been issued. However, the fact remains that no such substitution has been ordered in this appeal. 9. Although the first appellate Court has affirmed the Judgment and decree passed by the trial Court on merits also but at the same time specifically recorded that the Judgment and decree passed by the trial Court has become final for the said appeal having abated qua the plaintiff No. 3 Radha Krishna. 10. The net result obtainable is that all the plaintiffs have expired and the defendant who is the appellant herein has failed to properly seek substitution of legal representatives of the deceased plaintiffs. The first appeal has rightly been dismissed by the first appellate Court as abated and the present second appeal has already abated so far the plaintiffs-respondents No. 1 and 2 are concerned and, therefore, the decree for eviction against the present appellant passed in favour of the respondents has become final. 11. In the aforesaid view of the matter, no further proceedings are required to be taken in the instant second appeal that has abated as a whole and, therefore, be consigned to record as such.