PETITIONER:
SHANTILAL THAKORDAS & ORS.
Vs.
RESPONDENT:
CHIMANLAL MAGANLAL TELWALA
DATE OF JUDGMENT23/08/1976
BENCH:
UNTWALIA, N.L.
RAY, A.N. (CJ)
SHINGAL, P.N.
CITATION:
1976 AIR 2358 1977 SCR (1) 341
1976 SCC (4) 417
ACT
Bombay Rents, Hotel and Lodging House Rates Control Act
1947--Section 13(1) (b)--Suit for eviction on the ground of
bona fide and personal need of a landlord--Whether right to
sue survives to his heirs--Requirement of firm in which
landlord is a partner whether his requirement--Whether
decree passed in favour of landlord can be disturbed on his
death.
HEADNOTE
Thakordas, father of 3 appellants, was the owner of the
suit premises. He was a partner in a firm which. had 3
other partners. One of the partners was appellant No. 1,
the son of Thakordas and two partners were outsiders. A
suit for eviction was filed against the respondent on the
ground that Thakordas required the premises for the said
firm reasonably and bona fide within the meaning of s.
13(1)(g) of the Bombay Rent Act, 1947. The trial court
passed a decree for eviction in respect of a portion of
the premises. Thereafter, Thakordas died and the present
appellants who are his sons filed an appeal. Likewise the
tenant also filed an appeal. Appellants No. 1 and 2 togeth-
er with some outsiders continued the firm. However, appel-
lant No. 3 a minor son of Thakordas was not admitted to the
benefit of the partnership. The First Appellate Court
confirmed the decree of the trial court. The revision
application filed by the tenant was allowed and one filed by
the appellants was dismissed by the High Court relying on
the decision of this Court in Phul Rani & Ors. v.
Naubat Rai Ahluwalia [19731 3 SCR 679.
In an appeal by special leave, the appellants contended:
1. Phul Rahi’s case was not correctly decided and the
right of Thakordas survived in favour of the appellants.
2. The requirement of the firm in which the landlord is a
partner will be the requirement of the landlord.
3. Since the decree had already been passed in favour
of Thakordas before his death it could not be disturbed on
his death either in appeall or in revision.
Dismissing the appeal,
HELD: (1) Phul Rani’s case was wrongly decided. If the
law permitted the eviction of the tenant for the require-
ments of the landlord "for occupation as a residence for
himself and members of his family" then the requirement was
both of the landlord and the members of his family. On his
death, the right to ’.sue did survive to the members of the
family of the deceased landlord. After the death of the
original landlord the senior member of his family takes his
place, and is well competent to continue the suit for evic-
tion for his occupation and the occupation of the other
members of the family. [343 H, 344 A--B]
(2) It is doubtful whether the requirement of the prem-
ises by the landlord for occupation by the firm in which he
is a partner will tantamount to occupation by himself. Even
if it is assumed that it will amount to occupation by the
landlord, since in the new firm the minor son of Thakordas
was not admitted to the benefits of the partnership he had
no interest in the said firm. Therefore, as far as appellant
No. 3 is concerned, he could in no sense be said to require
the premises. [344 C---G]
(3) The conclusion in Phul Rani’s case that if a decree
had been already passed in favour of the plaintiff that
could not be disturbed on his death is not correctly decid-
ed. In fact, no final opinion was expressed in Phul, Rani’s
case on that question. [344 H, 345 A]
342
Phul Rani & Ors. v. Naubat Rai Ahluwalia [1973] 3 S.C.R.
679, overruled.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 487-488 of
1976.
(Appeal by Special Leave from the Judgment and Order
19.12.1973 of the Gujarat High Court in Civil Revision
Application No. 540 and 678 of 1970).
S.K. Dholakia and R.C. Bhatia, for the appellants.
R.P. Bhatt and H.S. Parihar for 1. N. Shroff, for the re-
spondent.
The Judgment of the Court was delivered by
UNTWALIA, J. In these appeals by special leave the ques-
tion which fails for our determination is whether the deci-
sion of a Bench of this Court consisting of two learned
Judges in Phul Rani & Ors. v. Naubat Rai Ahluwalia(1) is
correct. If not, whether the appellants are entitled to get
a decree for eviction in respect of the suit premises
against the defendant respondent.
Thakordas Bhagwandas--the father of the three appellants was
owner of the suit premises. He was a partner in a partner-
ship firm styled as Jai Hind Silk Weaving Works. There were
three more partners in the firm-one of whom was Shantilal
Thakordas, appellant No. 1, son of Thakordas Bhagwandas.
The other two were outsiders. The suit was filed against
respondent Chimanlal Maganlal Telwala for his eviction from
the premises on several grounds. The only ground which need
to be mentioned for the purpose of the disposal of this
appeal is Thakordas’s claim of requiring the premise.
reasonably and bona-fide for occupation by himself within
the meaning of section 13(1)(g) of the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947. The necessity
pleaded by the original plaintiff was that he required the
premises for the use of the partnership firm aforesaid in
which he was a partner. The Trial Court decreed the suit
in part on April 30, 1965 and passed a decree for eviction
of the tenant from a portion of the suit premises. Both
sides went up in appeal before the First Appellate Court.
Thakordas was dead and his heirs, namely, the present appel-
lants were the appellants in one appeal and respondents in
the other. The first Appellate Court by its judgment dated
November 10, 2966 maintained the partial decree made by the
Trial Court with slight modification. Both the parties went
in revision before the Gujarat High Court. The High Court
set aside the decree dated November 10, 1966 of the First
Appellate Court and remanded the case to it for a fresh
disposal of the appeal after trying out an additional issue
of comparative hardship of the landlord and the tenant as
also the question as to whether the substituted heirs of the
original plaintiff required the premises reasonably and
bona-fide for their occupation.
The first Appellate Court after remand again passed a
decree for eviction from a portion of the suit premises on
March 31, 1970. Two
(1) (1973) 3 S.C.R. 679.
343
revisions were taken to the High Court--one by the appel-
lants and the other by the respondent. Following the
decision of this Court in Phul Rani’s case (supra) the High
Court allowed the respondent’s revision, rejected that of
the appellants and dismissed their suit for eviction in
toto. Hence these appeals.
The foremost and the first question urged before us by
Mr. Dholakia was that Phul Rani’s case was not correctly
decided. We agree with this contention and say with respect
that we do not subscribe to the view expressed by the Bench
of this Court in that case. The original plaintiff in
that case had filed the application for eviction under
section 14(1)(e) of the Delhi Rent Control Act, 1958. The
application was dismissed in the first instance by the
Additional Rent Controller, Delhi on the ground that the
notices to quit were not valid. Plaintiff filed an appeal
but died during its pendency. His widow, son and two
married daughters and two children of a deceased daughter
were allowed to be substituted by the Rent Control Tribu-
nal where the appeal was pending. The case was remanded by
the Tribunal and after remand the Additional Rent Controller
held that some of the substituted persons require the prem-
ises bona-fide for their occupation. The tenant’s appeal
to the Tribunal failed. The High Court of Delhi on a fur-
ther appeal by the tenant took the view that the right to
sue did not survive to the heirs of the plaintiff and on
that ground it dismissed the ejectment application. The case
came up to this Court. The view of the High Court was
affirmed. The relevant words of personal requirement of the
premises in section 14(1)(e) of the Delhi Act are: "for
occupation as a residence for himself and members of his
family." The original plaintiff had pleaded:
"The premises are required bonafide by the
petitioner for occupation as a residence for him-
self and members of his family and that the peti-
tioner has no other reasonably suitable residential
accommodation."
This Court took the view:
"Thus, the requirement pleaded in the eject-
ment application and on which the plaintiff has
rounded his right to relief is his requirement, or
to use an expression which will effectively bring
out the real point, his personal requirement. If
the ejectment application succeeds--we will forget
for a moment that the plaintiff is dead the prem-
ises in the possession of the tenant may come to
be occupied by the plaintiff and the members of his
family but that does not make the requirement
pleaded in the application any the less a personal
requirement of the plaintiff. That the members of
his family must reside with him is his requirement,
not theirs. Such a personal cause of action
must perish with the plaintiff."
In our considered opinion in face of the wordings of section
14(1)(e) of the Delhi Act, the view expressed in Phul Rani’s
case, as stated
6-114SCI/76
344
above, is not correct. If the law permitted the eviction
of the tenant for the requirement of the landlord "for
occupation as a residence for himself and members of his
family",’ then the requirement was both of the landlord and
the members of his family. On his death the right to sue
did survive to the members of the family of the deceased
landlord. We are unable to take the view that the require-
ment Of the occupation of the members of the family of the
original landlord was his requirement and ceased to be the
requirement of the members of his family on his death.
’After the death of the original landlord the senior member
of his family takes his place and is well competent to
continue the suit for eviction for his occupation and the
occupation of the other members of the family. Many of the
substituted heirs of the deceased landlord were undoubtedly
the members of his family and the two married daughters and
the children of a deceased daughter in the circumstances
could not be held to be not members of the family of the
deceased landlord.
But even so the appellants cannot succeed in this ap-
peal. Firstly it is doubtful whether the requirement of the
premises by the landlord for occupation by the partnership
firm in which he is a partner will be tantamount to "occupa-
tion by himself" i.e. by the landlord. Certain decisions of
some High Courts were brought to our notice taking the view
that it is so. We refrain from expressing our opinion in
that regard. We assume, as seems to have been the view of
the High Court in this case, that the requirement of the
premises for the use of a partnership firm by the landlord
in which he is a partner is covered by section 13(1)(g) of
the Bombay Act. Yet on the facts of this case there is ’an
insurmountable difficulty in the way of the appellants.
From the judgment dated March 31, 1970 of the First Appel-
late Court it would appear that on the death of Thakordas in
June, 1965 a new partnership was constituted. One of his
sons Shantilal who was a partner from before was taken as a
partner in the new partnership alongwith Thakordas’s another
son Dhanvantlal Thakordas, appellant No. 2. There were some
outsider partners. Harish Thakordas, appellant No. 3, a
minor son of Thakordas had not been admitted to the benefits
of the partnership. He had, therefore, no interest in the
partnership firm Jai Hind Silk Weaving Works. The Appellate
Court took the view that the .substituted plaintiffs wanted
to use the suit premises for ,the purpose of godown for
keeping the yarn clothes and machinery articles and also for
a retail shop and show room of the partnership. This in no
sense could be the requirement of appellant Harish even
assuming that it could be said tO be the requirement of his
two cider brothers appellants 1 and 2. In that view of
the matter we have got to dismiss the appeal although Mr.
Dholakia, learned counsel for the appellants succeeded in
persuading us to differ from the ratio of Phul Rani’s case.
Counsel for the appellants endeavoured to bring their
case within one of the exceptions noted in Phul Rani’s case.
He submitted that a decree had already been passed in favour
of the original plaintiff by the Trial Court and that could
not be disturbed on his death either in appeal or revision.
We do not accept the contention as sound or
345
correct. In Phul Rani’s case no final opinion was expressed
on this question. Moreover, we find that on the earlier
occasion the High Court had set aside the decree and re-
manded the suit to the First Appellate Court for a fresh
decision. There was, therefore, no decree in existence to
attract the exception.
In the result the appeals fail and are dismissed but without
costs.
P.H.P. Appeals dis-
missed.
346