KAN SINGH, J. - (1.) THE second appeal before me raises the question whether on the death of a tenant whose contractual tenancy had already been terminated during the pendency of a suit for eviction filed by the landlord, the landlord can get a decree for the eviction against the legal representatives of the deceased tenant in the same suit or he will be required to file a separate suit.
(2.) A few facts relevant for the disposal of the question may be recounted: The subject matter of the suit was a shop situated in Tripolia Bazar, Jaipur. It originally belonged to one Mukhia Jainarain and on his death it devolved on his heirs. Defendant Sarwanlal, since deceased, was a tenant of the shop on a monthly rent of Rs. 62/ -. After Jainarain's death Sarwanlal continued to pay the rent to his heirs. Sarwanlal's heirs, however, sold the shop to the plaintiff-respondent, the Jaipur Hosiery Mills Private Limited, by a registered sale deed dated 24-12-66. The right to recover the rent in arrears from the tenant was also assigned. The plaintiff-respondent served a notice on 31-3-67 to Sarwanlal by registered post terminating his tenancy. This notice was delivered to Sarwanlal on 1-4-67. Sarwanlal was called upon to vacate the suit shop two months after the service of the notice or on such day from which he considered his monthly tenancy to expire. The plaintiff-respondent filed a suit against Sarwanlal on 6-7-67. The eviction was sought on the ground of bona fide personal necessity of the landlord and also on the ground of default in the payment of rent. Sarwanlal contested the suit. He filed a written statement. He admitted the tenancy in favour of Jainarain and his heirs, but denied the sale of the shop in favour of the plaintiff. He further denied the receipt of a notice terminating the tenancy. The bona fide personal necessity of the plaintiff for the suit shop was also denied and it was submitted that it had other shops at Jaipur in which it was having its business. Sarwanlal did not dispute that the rent was in arrears, but he pleaded that it had been tendered to the landlord and, therefore, he was not a defaulter. Sarwanlal Lal further claimed that six month's notice for the termination of the tenancy was required to be given. During the pendency of the suit in the trial court Sarwanlal died and his legal representatives, the present appellants, were brought on record. The legal representatives raised a plea that the suit premises were on rent with Sarwanlal deceased as representing the family, Sarwanlal being the manager of the family. In other words, the legal representatives wanted to set up a case that Sarwanlal was not having the shop in his personal capacity. The learned trial Judge framed a number of issues. Both the parties produced their evidence. The learned Additional Munsif Magistrate No. 1, Jaipur City, before whom the suit was filed, decided the relevant issues in favour of the plaintiff and in consequence decreed the suit for eviction and for arrears of rent amounting to Rs. 826. 68. Aggrieved by the decree of the learned Additional Munsif the defendants went up in appeal to the court of learned Additional District Judge No. 2, Jaipur City. It was contended on behalf of the defendants before the lower appellate court that here was no sufficient evidence on record to establish the reasonable and bona fide necessity of the plaintiff for the suit shop.
(3.) TO meet the contention a two-fold argument was made on behalf of the plaintiff-respondent. In the first place, it is submitted that there was overwhelming evidence for showing that the plaintiff had a reasonable and bona fide necessity for the suit shop. The other alternative argument was that as Sarwanlal was only a statutory tenant, on his death the protection against eviction under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter to be referred as the "act", was not available to legal representatives of the deceased tenant. Reliance was placed on J. C. Chatterjee vs. S. K. Tandon (l ). The learned Addl. District Judge accepted the argument made on behalf of the plaintiff that according to J G. Chatterjee's case (l) the protection against eviction under the Act was not available to the legal representatives of the deceased tenant whose tenancy had been terminated. Consequently according to the learned judge it was not necessary to consider the question whether the landlord had established his bona fide personal necessity for the suit shop. The learned Addl. District Judge further negatived the plea sought to be raised by the legal representatives that the suit shop had been taken by Sarwanlal in a representative capacity and,therefore,the legal representatives were themselves tenants on the property. Learned Additional District Judge observed that a legal representative impleaded under Order 22, Rule 4 Civil Procedure Code was only entitled to take any defence appropriate to his character as a legal representative of the deceased tenant and as Sarwanlal had admitted himself to be the tenant and had not pleaded that it was the joint family who were the tenants it was no longer open to the legal representatives to raise this question but they had to start from the stage the suit was when Sarwanlal died. Apart from this the learned Judge came to the conclusion that Sarwanlal was a tenant in his individual capacity. The question whether the tenancy has been properly terminated was also argued by the legal representatives of Sarwanlal. It was submitted that the notice was not delivered to Sarwanlal, but to his son Mohanlal. The learned Judge considered the evidence of P. W. 1 Jamnadas and that of the Postman Mohmmed Rafique (P. W. 6) and reached the conclusion that the notice was delivered by the postman to Mohanlal I/o Sarwanlal at the instance of Sarwanlal. The learned Judge also noted the circumstance that D. W. 1 Sarwanlal did not deny the receipt of notice but simply stated that he had no knowledge of its service. The validity of the notice was assailed also on the ground that according to the agreement between the parties a 6 months' notice was required to be given by the landlord for determining the tenancy. The burden to prove this was on the defendant and as there was no reliable evidence on record that there was any agreement between the parties to that effect the learned Judge came to the conclusion that the notice cannot be held to be invalid for that reason. In the result, the learned Additional District Judge dismissed the appeal. The appeal was argued at the admission stage on 30-7-73. Caveat was entered at that stage by the respondent. This appeal was admitted only on account of a news paper report of judgment delivered by the Delhi High Court on the question whether a separate suit would be necessary against the legal representatives or relief would be governed in the same suit when the defendant whose tenancy was terminated died during the pendency of the suit. Since then the judgment of the Delhi High Court has been reported in A. I. R. 1973 Delhi page 265 (Full Bench ). E only quEstion thE mattErs considEration now is about thE rEliEf bEing givEn in thE samE suit. ThE othEr quEstions turn on findings of fact and thE lEarnEd counsEl is not in thE position to thE challEngE thE findings of thE two courts in sEcond appEal. ;