Phul Rani & Ors Vs. Naubat Rai
Ahluwalia  INSC 46 (14 March 1973)
CITATION: 1973 AIR 2110 1973 SCR (3) 679 1973
SCC (1) 688
O 1976 SC2358 (1,3,4,5,6)
Delhi Rent Control Act--S. 14(1)(e)-Whether
on the death of the plaintiff during pendency of an ejectment application, the
cause of action would survive to his legal representatives.
The plaintiff after two notices to quit,
filed an ejectment application against the defendant under S. 14 (1) (e) of the
Delhi Rent Control Act 1958. The possession was sought on the ground of
personal requirement. The Additional Rent Controller, dismissed the application
on a preliminary ground of invalid notice. During the pendency of an appeal
against that decision, the plaintiff died. Appellants 1 to 4 who are widow, son
and two married daughters of the deceased, applied for being brought on the
record of the appeal as his legal representatives. The defendant opposed that
application on the ground, that the son and daughter of a deceased daughter of
the plaintiff ought also to have been impleaded to the application, and since
that was not done, theappeal had abated. The Rent Control Tribunal allowed
these two, persons also to be impleded as appellants :and remanded the
ejectment application for a decision on merits.
These heirs are now appellants 5 and 6. The
second appeal filed by the 'tenant against the order of remand was dismissed by
the High Court.
As the order of remand passed by the Rent
Control Tribunal was not stayed during the pendency of the second appeal, the
Additional Rent Controller proceeded with the ejectment appli cation and passed
an order of eviction against the tenant. The tenant appealed against that
decision and contended for the first time that the right to sue did not survive
to the heirs of the plaintiff. The Rent Control Tribunal rejected the
contention and confirmed the order of eviction on merits. In an appeal, the
High Court took the view that the right to sue did not survive to the heirs of
the plaintiff and on that ground dismissed the ejectment application. The
correctness of that decision is challenged by the plaintiffs heirs before this
Court. The question for decision was whether the cause of action could survive
to his legal representatives. Dismissing the appeal,
HELD : (i) In some cases Under the rent Acts,
the maxim actio personalis moritur cum persona has been attempted to be applied
'On the death of a necessary party to a suit or proceeding. This oft-quoted
maxim, however, is generally misunderstood. The plain meaning of that common
law maxim is that a personal action dies with the parties to the cause of action.
In the present case, it is obvious that the death of the plaintiff will not
cause the ejectment proceedings to abate if the right to sue survives. That is
the formula contained in Order 22, Rule 1 of the Code of Civil Procedure.
[681F-G, 682D] However, from the pleadings in the ejectment application, the
plaintiff has founded his right to relief on his personal requirement. So, if
the appellants were permitted to continue the proceedings, the lis will assume
a complexion wholly beyond the compass of the original cause of action, and
without a fundamental alteration of the pleadings. the appellants would not be
able to continue the proceedings. Therefore, the appeal must fail. [683C] 680
Motilal Pannalal v. Kailash Narain, A.I.R. 1960 M.P. 134;
Amar Nath Bihari v. Jai Dayal Puri 1971 (7)
Delhi Law.Times 363; Smt. Dhan Devi and Anr. v. Bakshi Ram and Anr., A. I.
R. 1969 Punjab & Haryana 270; Vets Dev v.
Sohan Singh & Ors.
 40 Delhi Law Times 392; Dr. Muhammad
Ibrahim v.Rehamin Khan & Ors.,  2 M.L.J. 419; and Rameswar Dayal
& CIVIL APPELLATE JURISDICTION: Civil
Appeal No. 1879 of 1971.
Appeal by special leave from the Judgment and
order dated May 24, 1971 of the, Delhi High Court at New Delhi in S.A.No. 178
Bishan Narain and 0. N. Mahindroo for the
P. N. Lekhi and M. K. Garg, for the
The Judgment of the Court was delivered by
CHANDRACHUD, J.-The plaintiff, who in a Rent-Act application against his tenant
sought possession of certain premises on the ground of personal requirement,
died pending-the application. The question for decision is whether the cause of
action would survive to his legal representatives or whether, as contended by
the tenant, the application must abate.
On June 28, 1962 a flat at New Rajinder
Nagar, New Delhi was leased by the plaintiff to the defendant. On failure of
the, defendant to comply with two notices to quite plaintiff filed an ejectment
application under section 14 ( 1 ) (e) of the Delhi Rent Control Act, 1958
("the Act"). Possession was sought from the tenant on the ground that
the premises were required by the plaintiff "for occupation as a residence
for himself and members of his family".
The Additional Rent Controller, Delhi,
dismissed the application on the preliminary ground that the notices to quit
were not valid. Plaintiff filed an appeal against that decision but during its
pendency he died on August 22, 1968.
Appellants 1 to 4 who are the widow, son and
two married daughters of the plaintiff applied for being brought on the record
of the appeal as his legal representatives. The tenant opposed that application
on the narrow ground that the son and daughter of a deceased daughter of the
plaintiff ought also to have been impleaded to the application and since that
was not done, the appeal had abated. By its order dated December 13, 1968 the
Rent Control Tribunal, which was seized of the appeal allowed these two persons
also to be impleaded as appellants. By a further order dated January 2, 1969
the, Tribunal set aside the decision recorded by the Additional Rent Controller
on the preliminary issue and remanded the ejectment application for a decision
on merits. These two "heirs" are now appellant 5 and 6. Second appeal
107 of 1969 filed by the tenant against the order of remand, was dismissed by
the High Court of Delhi on February 20, 1970.
As the order of remand passed by the Rent
Control Tribunal was not stayed during the pendency of the Second Appeal, the
Additional Rent Controller proceeded with the ejectment application and had in
the meanwhile passed an order of eviction against the tenant. By his judgment
of February 14, 1969 he held that the plaintiff's widow (appellant 1), his son
(appellant 2), the son's wife and three. minor daughters of that couple
required the premises bona-fide for their occupation.
The tenant appealed against that decision and
contended for the first time in appeal that the right to sue did not survive to
the heirs of the plaintiff. The Rent Control Tribunal rejected that contention
and confirmed the order of eviction on merits.
In an appeal filed by the tenant (S.A.0. No.
178 of 1970) the High Court of Delhi 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, leaving it open to the heirs to bring a fresh proceeding
founded on their own requirements. The correctness of that decision is
challenged by the plaintiff's heirs in this appeal special leave.
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 to in what classes
of cases, the right to sue survives in favour of the legal representatives. In
some cases under the Rent Acts, the maxim actio-personalis moritur cum persona
has been attempted to be applied on the death of a necessary party to a suiit
or proceeding but that oft-quoted maxim is oft misunderstood. The plain meaning
of that common law maxim is that a personal action dies with the parties to the
cause of action. Its purport. until sweeping changes were made in the previous
law by the Law Reform (Miscellaneous Provisions) Act, 1934 was that no executor
or administrator could, subject to certain exceptions, sue or be sued for any
tort committed against or by the deceased in his life-time.
The action for a tort had to be begun in the
joint life-time of the wrongdoer and the person injured. (See Salmond on the
Law of Torts 15th Edn. p 569; Halsbury Laws of England 3rd Edn. Vol. 16 p. 483
Nor do we find relevance in the provisions of
section 306 of the Indian Succession Act, under which all demands whatsoever
and all. rights to prosecute or defend any action or special proceeding
existing in favour 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 and assault, 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" orgranting it would be nugatory. We
can duly press into service and that too indirectly, the analogy of the first
part of-the last exception in an effort to find whether after the death of the
plaintiff in the instant case the relief sought could not be enjoyed by his
Though the plaintiff died during the pendency
of the appeal, it is as if he died during the pendency of the suit because the
suit was dismissed on a preliminary issue concerning the validity of the
notices to quit and was remanded in appeal for trial on the merits. It is
patent and would be altruism to say that the death of the plaintiff will not
cause the ejectment proceedings to abate if the right to sue survives.
That is the formula contained in Order 22
Rule 1 of the Code of Civil Procedure, a formula simple in its wording but not
simple in its application. The "right to sue" as said succinctly in
Saraj Chandra v. Nani Mihan(1) means 'the right to bring a suit asserting a
right to the same relief which the deceased plaintiff asserted at the time of
his death". Thus contracts involving the exercise of special skill like a
promise to paint a picture do not bind the representatives of the promisor nor
do they create in them a right that can survive the death of the promisor.
The solution to the problem whether the
'appellants can continue the proceedings in their capacity as the legal
representatives of the plaintiff lies in the pleadings of the plaintiff for
those alone can reveal the true nature of the right asserted to the plaintiff
in the ejectment proceedings. In column 18(a) of the ejectment application the
ground for evicting the tenant is stated thus "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 reasonable suitable
residential accommodation." In column 19, the "other relevant
information" is stated to be that the plaintiff had a large family consisting
of his wife, son, daughter-in-law and 3 minor grand-daughters, and that the
family had only 2 rooms in its possession, which were wholly inadequate for its
Thus, the requirement pleaded in the
ejectment application and on which the plaintiff has founded his right to
relief is his requirement, or to use an expression which will effectively bring
(1) 36 cal. 799 at p. 801.
683 out' the real point, his personal
requirement. If the ejectment application succeeds-we will forget for a moment
that the plaintiff is dead-the premises, 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 .
If the appellants were permitted to continue
the proceedings, the lis will assume a complexion wholly beyond the compass of
the original cause of action. Indeed, it is difficult to see how, without a
fundamental alteration of the pleadings, appellants could continue the
Such an alteration will fall beyond the scope
of amendment of pleadings, permissible under a most liberal interpretation of
order 6, Rule 17 of the Code of Civil procedure. Plaintiff, who owned the
premises, was entitled under section 14(1) (e) of the Act to ask for possession
thereof on the ground that his wife and the other members of his family
dependent on him must live with him but that there was not enough space at his
disposal to accommodate them. Section 14(1)(e) provides to the extent material
for the present purposes, that the Controller may make an order for possession
on the ground "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 dependent on him, if he is the owner thereof........ and
that the landlord........ has no other reasonably suitable residential
accommodation". If the plaintiff were alive, the main issues for
determination in the ejectment proceedings would have been : (1) whether the
plaintiff requires the premises for his occupation and for the occupation of his
wife, son, daughter-in-law and 3 grand-children; (2) whether the aforesaid
requirement is bonafide and (3) whether the plaintiff has no other reasonably
suitable residential accommodation. The appellants' emergence in the
proceedings will require the determination of wholly different and distinct
Their requirements, not that of the
plaintiff, and the availability to them-not to the plaintiff-of other
reasonably suitable residential accommodation will now form the centre of
conflict. It is relevant on this aspect to remember that amongst the appellants
are 2 married daughters of the deceased plaintiff and 2 children of a deceased
daughter of his. Their requirement would be basically different from that of
the plaintiff and an examination of facts and circumstances in regard thereto
will open up a new vista of inquiry. The plaintiff's right to sue will
thereafter not survive to the appellants and they cannot glean the benefit of
the original right to sue.
684 Several decisions were cited before us but
those falling within the following categories are to be distinguished (i) cases
in which the death of the plaintiff occurred after a decree for possession was
passed in his favour; say, during the pendency of an appeal filed 'by the
(ii) cases in which the death of the decree holder
landlord was pleaded as a defence in execution proceedings; and (iii) cases in
which, not the plaintiff but the defendant-tenant died during the pendency of
the proceedings and the tenant's heirs took the plea that the ejectment
proceedings cannot be continued against them.
Cases of the first category are
distinguishable because the decisions therein are explicable on the basis,
though-not always so expressed, that the estate is entitled to the benefit which,
under a decree, has accrued in favour of the plaintiff and therefore the legal
representatives are entitled to defend further proceedings, like an appeal,
which constitute a challenge to that benefit.
In Motilal Pannalal v. Kailash Narain, (1)
for example the .landlord who had obtained a decree for possession on the
ground of personal necessity under section 4(g) of the Madhya Bharat Control of
Accommodation Act, 1955 died during the pendency of the appeal filed by the
tenant. It was held that the decree would ensure for the benefit of his son and
widow. In Amar Nath Bihari v. Jai Dayal Puri(2) the death of the landlord
occurred after the Rent Control Tribunal had held in appeal, reversing (the
judgment of the Controller, that the premises were required by the landlord for
the use of himself and his wife under section 14 (1) (e) of the Act.
It was held that the wife was a member ,of
the landlord's family and as "the need of the landlord for the premises
was assessed to be both for himself and his wife", the cause of action
consisted of the need of both and therefore it survived to the widow. The
judgment of the High Court in the instant case was cited before the learned
single Judge but was distinguished by him on the ground that the requirements
of the legal representatives here were not determined by the Controller, prior
to the death of the plaintiff. The point of distinction could be that the
decree for possession passed in favour of the landlord could be defended by his
legal representatives for the benefit of his estate.
In Smt.Dhan Devi and Anr. v. Bakhshi Ram and
Anr.(3) an application for ejectment was filed by the landlord under the (1)
A.I.R. 1960 M.P. 134.
(2) 1971 (7) Delhi Law Times 363.
(3) A.I.R. 1969 Pb. & Haryana 270.
685 East Punjab Urban Rent Restriction Act,
1949. The ground on which possession was sought by the landlord was that he
required the land for his own use as he wanted to construct a building for the
purpose of his office. The Rent Controller allowed the application and the appeal
filed by the tenant against that decision was dismissed by the District and
Sessions Judge. The tenant then filed a REvisional 'application to the High
Court, during the pendency of which the landlord died. On the
tenant's,application the widow and an adopted son of the landlord were brought
on the record but it was urged on behalf of the tenant that the ground of
ejectment was personal to the landlord and therefore the application for
ejectment had abated on his death. This Contention was rejected on the ground
that the word "landlord" in the East Punjab Act includes his
successors-in-interest and that the rights of a laNdlord-decree-holder under an
order of eviction obtained by him are heritable and devolve after his death on
his leGal representatives.
Cases of the second category are
distinguishable because the decisions therein are, by and large, based on the
principle that an executing court has no jurisdiction to go behind the decree.
It must execute the decree as it finds it, save in exceptional cases as, for
example, where the decree on the face of it is without jurisdiction.
In Vas Dev v. S. Sohan Singh & Ors.(1) a
case under section 14 (1) (e) of the Delhi Rent Control Act, the landlord
obtained an order of eviction on the ground of personal requirement but, he
died before the order for eviction could be executed. His sons and daughters
filed an execution application, to which the tenants raised an objection that
the order of eviction being personal to the landlord, was incapable of
execution after his death. It was held by a learned single Judge that the
provisions of section 14(1) (e) have to be satisfied at the time of the passing
of the order OF eviction and that the executing court had no right to go behind
the decree in order to find out whether the requirement continue at the time of
execution. A contrary decision in Dr. Muthammad Ibrahim v. Rahiman Khan and
(2) may be said to turn on the peculiar
language of the particular provision of the Madras House Rent Control Order,
Cases of the third category are governed by
totally different considerations. The landlord's right to evict the tenant on
the grounds available under the Rent Act does not come to an end with the death
of the tenant. That right is enforceable against those in whom the tenant's
interest resides for the time being. In Rameshwar Dayal and Anr. v. (Smt.
Mohania Died) After her (1) 1968 (4) Delhi Law Times 391.
(2) 1947 (2) M.L.J.
686 Sri Sohan Lal and Anr. (1) which was a
case under the U.P.
(Temporary) Control of Rent and Eviction Act,
1947 the landlords obtained permission under section 3 of that Act to bring a
suit for ejectment on the ground that the shops in possession of the tenant
were in a dilapidated condition and required reconstruction. The landlords thereafter
brought a suit, during the pendency of which the tenant died. The tenant's son
and widow were then brought on the record but the suit was dismissed on the
ground that the notice to quit was defective. The landlords brought another
suit against the son and widow without obtaining a fresh permission under
section 3. It was held that the suit could be filed against the heirs on the
basis of the permission obtained against the tenant. Clearly, :the permission
to evict related to the condition of the premises which did not change with the
death of the tenant.
We have referred to some of the decisions in
the three Categories, not with a view to determining their correctness but only
in order to show that they rest on different principles or could be explained
in reference to such principles. We are concerned with a matter not involving
the application of any of those principles. For reasons already stated, we are
of the view that considering the nature of the claim made in the instant case
and the bundle of facts which constitute the plaintiff's cause of action, his
right to sue will not survive to his legal representatives.
In the result, the appeal fails but there
will no order of costs.
S.C. Appeal dismissed.
(1) 1963 A.L.J. 198.