DELHI HIGH COURT

                           Amarnath Bahri

                           Vs.

                           Jai Dayal Puri (since deceased)

                           S.A.O. 325 of 1969
                           (V. S. Deshpande, J.)

                           23.7.1971

                           JUDGMENT

V. S. Deshpande, J (Oral)

1. The appellant herein is the tenant against whom the original petition for eviction
was filed by the then landlord Jai Dyal Puri under proviso (e) to section 4(l) of the
Delhi Rent Control Act, 1958 (hereinafter called the Act) on the ground that The
premises were required bonafide by the landlord for the residence of himself and his
wife. The Controller dismissed the petition for eviction on the ground that the landlord
did not really intend to come to live in these premises. He was living at Ludhiana
where his sons were also living. He was getting only a small pension and it was not
believable that he really wanted to come to live in Delhi with his wife away from his
children with such a small income. In the appeal before the Rent Control Tribunal by
the landlord, however, the Tribunal was of the view that the view of the Controller that
the landlord did not really want to come to live in Delhi was erroneous. The Tribunal
believed the evidence of the landlord that he did not want to reside with any of his
sons and that he and his wife wanted to come to live in Delhi in the premises in
dispute. The finding of fact given by the Tribunal at the end of paragraph 6 of the
judgment is as follows:-

       "The appellant has thus bonafide requirement of the premises in dispute for
       occupation as his residence and the residence of his wife."
2. Jai Dyal Puri died after the decision of the Rent Control Tribunal. The tenant,
therefore, filed this second appeal under section 39 of the Act against the legal
representatives of Jai Dyal Puri, namely, his widow, sons and daughters. In Ground
No. 2 of the grounds of appeal the appellant has stated that the case of Shri Jai Dayal
Puri was that the premises in suit was required by him for himself and the learned
Rent Control Tribunal also observed in the judgment that the premises in dispute are
bonafide required by Shri Jai Dyal Puri, but now after the judgment of Rent Control
Tribunal, the relief of eviction has become in fructuous on account of the death of
plaintiff landlord when more especially the premises in question would not be required
bonafide for the residence of any member of his family including his widow. The
appellant craves leave to amend his written statement for which a separate application
is being made in this Hon'ble Court".

3. The application by the appellant is C.M. 1670-J of 1969 It merely states that the
ground on which the eviction petition was filed by Jai Dyal Puri that he required the
premises in suit for his own residence had become infructuous. It does not go further
and state that the premises were not required bonafide by the wife of Jai Dyal Puri.
The additional plea sought to be raised is that "the premises in question would no
longer be required bonafide for the residence of the petitioner and members of his
family". There is no plea sought to be raised that the widow of the deceased landlord
alone would not need the premises bonafide. As the appellant has not in his
application sought to amend the written statement to take the plea that the widow of
the landlord does not need the premises bonafide and as the need of the landlord along
with his wife has already been the subject-matter of the finding by the Rent Control
Tribunal, no sufficient ground is made out by the appellant for the amendment of the
written statement. Consequently, the question of remanding the case back to the trial
Court for evidence on any new pleading does not arise, The necessity for the
amendment of the pleading not being proved, the application is rejected.

4. Two questions arise for decision, the first being a question of law and the second
primarily a question of fact, namely:-

       (1) Whether the cause of action survives on the death of the landlord Jai Dyal
       Puri ? And
       (2) Whether the finding of the Rent Control Tribunal that the premises are
       needed bonafide by the landlord for the residence of himself and his wife is
       valid in respect of the widow of the landlord alone after the death of the
       landlord ?
Question No. 1:

5. The procedure of the Controller is to be the same as that of the Court of Small
Causes according to section 37(2) of the Act According to rule 23 of the Rules made
under the Act, the principles underlying the provisions of the Civil Procedure Code
would guide the procedure under the Act. The appellant himself has made an
application for bringing on record the legal representatives of the deceased landlord
presumably, guided by the principle underlying Order 21I rule 4 Civil Procedure Code
which applies to appeals according to Order 21I rule 11. The legal representatives of
the landlord are entitled to represent him in the appeal if the cause of action survives
to them The rule regarding the survival of cause of action is stated in section 306 of
the Indian Succession Act, 1925 in the following words :-

      "All demands whatsoever and all rights to prosecute or defend any action or
      special proceeding existing in favor of or against a person at the time of his
      decease survive to and against his executors or administrators; except causes of
      action for defamation assault, as defined in the Indian Penal Code, or other
      personal injuries not causing the death of the party; and except also cases where,
      after the death of the party, the relief sought could not be enjoyed or granting it
      would be nugatory."
The cause of action arising under section 14(1)(e) of the Act is of the need of the
landlord himself and his wife. In P.D. Sharma v. Ram Lubhaya, 1 I had occasion to
analyze The terms of proviso (e) which is as follows :-

       "that the premises let for residential purposes are required bonafide by the
       landlord for occupation as a residence for himself or for any member of his
       family dependant on him, if he is the owner thereof or for any person for whose
       benefit the premises are held and that the landlord or such person has no other
       reasonably suitable residential accommodation."
In paragraph 6. it was observed that the word "himself" used in proviso (e) would
include not only the landlord alone but also, his family inasmuch as man is a social
being and no one in this world lives alone by himself. The wife of the landlord was a
member of his family and, therefore, the need of the landlord for the premises was
assessed to be both for himself and his wife. The cause of action arising in favor of the
landlord thus consisted of the need of the landlord himself and of the wife. Even after
the death of the landlord, therefore, the need of the wife who is one of his legal
representative survived and, therefore, the cause of action survived to the widow.

6. In Anil Kumar v. Jai Narain Gautam, 2 the original petition for eviction was filed by
the landlady pleading the need not only of herself but also of her family. Therefore,
even though she and another member of the family died during the eviction
proceedings, the need of the remaining member of the family, namely, Anil Kumar
was ordered by this Court to be considered by the Controller by a remand in the same
proceedings. In Naubat Rai Ahluwalia v. Smt. Phool Rani and others, (S.A.O. 178 of
1970 decided on 24th May 1971) however, The decision in Anil Kumor's case was
distinguished and it was observed that on the death of the landlord during the eviction
proceedings, the premises were not required either for the landlord or for his family
and the requirements of the successors of the landlord were to be determined on a
different cause of action. The Controller should have required the eviction application
to be amended and he should not have continued the proceedings on the basis of the
requirement of the deceased landlord either for himself or for his family. The eviction
order was, therefore. set aside and the new landlords were left free to file another
application for eviction based on their own bonafide requirements.

7. These two decisions are distinguishable in the present case inasmuch as the
requirements of Anil Kumar in one and the requirements of the successors of the
landlord in the other had not been determined by the Controller. On the other hand, in
the present case the eviction petition was based on the requirements of the landlord
and his wife. The learned Tribunal has found the requirements of both of them to be
bonafide. Therefore, even on the death of the landlord, the requirements of his widow
and the present landlord have already been found to be bonafide and there is no need,
therefore, either for a remand or for a fresh petition by the widow for eviction. She is
entitled to the benefit of the finding in her favor in this very appeal.

Question No. 2

8. On the merits of the case, the finding of the Controller was that the landlord and his
wife did not require the premises for their residence inasmuch as the learned
Controller could not believe that the landlord actually wanted to come to live in Delhi
as he was getting a small pension only and his sons were at Ludhiana. But the learned
Tribunal disagreed with this view of the evidence and took the view that there was no
reason to disbelieve the evidence of the landlord that he in fact wanted to come to live
in Delhi with his wife. The argument of the Controller about the small amount of the
pension by the landlord was met by the Tribunal by observing that the landlord could
supplement his income by doing some other work while residing in Delhi But the
question whether the pension was small or large was not in itself relevant. It was
relevant even according to the Controller only for the ascertainment of the intention of
the landlord to come to live in Delhi. The learned Tribunal seems to have considered
this irrelevant. On the other hand, the Tribunal has believed the evidence of the
landlord that he wanted to come to live in Delhi with his wife as sufficient for passing
an order of eviction under proviso (e) to section 14(l).

9. The question is whether the finding of the Tribunal is valid even after. the death of
the landlord and in favor of his widow. If it was required bonafide for the residence of
the landlord himself and his wife as found by the Tribunal it cannot be said that the
premises were not required bonafide by his widow alone. Learned counsel for the
respondents has invited my attention to the affidavit filed by Shri Jagdish Miller Puri,
one of the respondents showing that he (a son of the landlord) had come to live in
Delhi along with the widow of the landlord Learned counsel for the appellant says that
I am hot entitled to rely on this affidavit. The subsequent events can be taken into
account only for the purpose of moulding the appropriate relief under Order 6I rule 7
and Order 41 rule 33 Civil Procedure Code. It is not necessary for me to rely on the
affidavit filed by Shri Jagdish Miller Puri inasmuch as in my view, the finding given
by the Tribunal that, it was necessary for the landlord and his wife to get the premises
from the tenant is not affected by the death of the landlord and is available to his
widow. It is only if any doubt is sought to be cast on the coming of the widow to live
in Delhi on the ground that she could not be expected to live here alone that the
affidavit filed by her son Shri Jagdish Mitter Puri would be relevant to show That her
son also was living in Delhi and, therefore, the finding given by the Tribunal still
continues to be valid. The widow would not be living alone when she comes to live In
Delhi.

10. In view of the above reasons, the appeal is dismissed but I without any order as to
costs.

Appeal dismissed.

Cases Referred.

1. 1969 RCR 992,

2. 1970 RCR 757