Shantilal Thakordas & Ors. v. Chimanlal Maganlal Telwala

Judgment

SHANTILAL THAKORDAS & ORS. CHIMANLAL MAGANLAL TELWALA August 23, 1976 [A. N. RAY, C.J., N. L. UNTWALIA AND P. N. 3HINGHAL, JJ.] Bombay Rents, H(lfel and Lodging House Rates Control Act 1947--Sectioll, 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. Tkakordas, father .Qf 3 appellants, was the owner of the suit premises. He was a part11er in a firm which had 3 other partners. One of the partners was appellant No. 1, the soil of Thakordas and two partners were ol!lsiders. suit for eviction was filed against the respondent on the ground that Thakordas required the premises fer th!l said firm reasonably and bona tide within the meaning of s. 13 (I )(g) of the Bombay Rent Act, 1947.

The trial court passed a decree for eviction in respect ot a portion of the premises. Thereafter, Thakordas died an<i the present appellants who are his sons filed ai1 appeal. Likewise the tenant also filed an appeal. Appellants No. l and 2 together with some outsiders continued the firm. However, appellant No. 3 a minor son of Thakorda~ was not admitted to the benefit of the partnership. The First Appellate Court conRI-med the decree of the trial court. The revision application fil~ 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 Phu! Rani & Ors. v. Naubat Rai Ahluwalia [1973] 3 SCR 679. In an appeal by special leave, tho appellants contended :

1Phul Rani's case was not correctly decided and the right of Thakordu sunived in favour of the appellants.

2The requirement of the firm in which the landlord is a partner will be the requirement of the landlord.

3Since the decree had already been passed in favour of Thakordas before his death it could not be disturbed on his death either in appeal or in revision. Dismissing the appelll, HELD: (1) Phul Rani's case was wrongly deciaed. If the law permitted the eviction of the tenant for the requirements of the landlord "for occupation as a residence for himself and members of his family" then the requirement wu bo!h of the landlord and the members of his family. On his death, the right to ~ue 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, ud is well competent to continue the suit for eviction for his occupation and the occupation of the other members of the family. [343 H, 344 A-BJ (2) It is doubtful whether the requirement of the premi~es by the landlord for occupation by the firm in whioh he is a partner will tantameunt to occupation by himself.

Even if it is assumed that it will amount to occupation by the iandlord, 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 iu no sense be said to require the premises. [344 C-G] _ , (3) The conclusion in Phu! 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 decided. In fact, no final opinion was expressed in Phu! Rani's case on that question. [344 H, 345 A] 342. Phu/ Rani & Ors. v. Nau/wt Rai Alilull'alia [1973] 3 S.C.R. 679, over1t.icu. CtYJL APPELLATE JuRISDICTJON : Civil Appeals Nos. 487-.+tiS of 1976. (AppC'al by Special Leave l'rom che Judrrment and Order t:<!tcd 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 appeliants. R. P. Bhatt and H. S. Pa.rihG" for /. N. Shro/]. for the respondent.

The Judgment <:f the Court was delivered by UNTWALIA, J.-In these appeals by special leave-• the question which falls for our determination is whether the decision 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 a~pellants was owner of the suit premises. He was a partner in a partnership firm styled as Jai Hind Silk Weaving Works. There were tlliee 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 ground3.

The only ground which need to be mentioned for the purpose of the disposal of this appeal is Thakordas's claim of requiring the premises reasonably and bona-fide for occup:.i.tion 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 partnersfuip firm aforesaid in which he was a partner. The Trial Court decreed the ·suit in part on April 30, 1965 and passed a deeree 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 appellants were the appellants in one appeal and respondents in the other. The first Appellate Court by its judgment dated November 10, 1966 maintained the parfofi decl't!e made by the Trial Court with slight modification.

B<;lth the parties went in revision before the Gujarat High Court. The H~gh C@urt set aside the decree dated November 10, 1966 of the FJrst Appellate Court ar.id remanded thl' case to it for a fresh disposal of the appeal after trying out an adclitional issue of c?mparative 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 decr.:c for eviction from a portion of the suit premises on Marc'h 31, 1970. Two (1) (1973)3 S.C.R. 679. SHANTILAL THAKORDAS \I, CHIMANLAL (Untwalia, !.) revisions were taken to the High Court-one by the appellants and the other by the respondent. Following the decision of this Court in Phul Ran!s case (supra) the High Court allowed the respondent's revision, rejected that of the appellants and .dismissed their suit fQr 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 Ito 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 deceas- ·ed daughter were allowed to be substituted by the Rent ·Control Tribunal 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 premises bona-fide for their occupation.

The tenant's appeal to the Tribunal failed. The High Court of Delhi on a further 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 tl)e 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 himself and members of his family and that the petitioner has no other reasonably suitable residential accommodation." This Court took the view :

"Thus, the requirement pleaded in the ejectment application and on which the plaintiff has founded his right to relief is his requirement, or to u~e an expression which will effectively bring out the real point, his personal require~ ment. If the ejectment application succeeds-we will foriet for a m01'.1ent that the plaintiff is dead-the premises m th~ possess10n 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." 1n our consi?ered opinio~ in face of the wordings of section 14(1) (e) of the Delhi Act, the view expressed in Phul Rani's case, as stated 6-1104SCI/76 [1977] 1 S.C.lt. above, is not correct.

If the law permitted the eviction of the tenant. for the requirement of the landlord "for occupation as 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 requirement of the occupation of the members of the family of the original landlord was his requirment 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 evktion 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 appeal. Firstly it is doubtful whether the requirement of the premises by the landlord for occupaticm by the partnership firm in which he is a partner will be tantamount to "occupation by himself" i.e. by the landlord. Certain decisions of some .High Courts were brnught 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 ort 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 Appellate 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 Appollate 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 tke 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 elder brothers appellants 1 and 2. In that view of the matter we have got to dismiss the appeal althougli Mr. ll>holakia, 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 t~at 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 er revision. We do not accept the contention as sound or SHANTILAL THAKORDAS v. CHIMANLAL (Untwalia, !.) correct. In Phu/ 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 remanded the suit to the First Appellate Court for a fresh decision.

There was, therefore, no decree in existepce to attract the exception. ·In the result the appeals fail and are' dismissed but with0ut costs. P.H.P. Appeals dismissed.