LODHA, J. - (1.) THIS is a defendants-tenants' second appeal arising out of a suit for ejectment in respect of a plot of land situated in Nehru Bazar in the town of Udaipur leased out to the appellant No. I Gulam Mohd. by Kishanlal original plaintiff on 1st February, 1962 on a monthly rent of Rs. 50/ -. Kishan Lal died during the pendency of the suit and is now represented by his sons and daughters, who are respondents in this appeal The suit was based on two grounds namely, (1) personal necessity of the landlord for the plot in question and (2) sub-letting. Since the question of personal necessity has been decided against the landlord by both the Courts below and has not been pressed before me, I do not think it necessary to give the details of personal necessity alleged by the plaintiff. As regards the allegation about sub-letting, the plaintiff alleged in para No. 5 of the plaint that he had come to know on 1st June, 1968 that the defendant No. 1 Gulam Mohd. had sub-let the plot in question to Adarsh Loha Sahkari Samiti, Bapu Bazar, Udaipur (hereinafter referred to as 'the Samiti') clandestinely without the permission of the plaintiff. It was further alleged that a portion of the plot had also been sublet to the defendant No. 3 Chhotu (deceased) without the permission of the plaintiff. It may be stated, here, that Chhotu died during the pendency of the first appeal and his legal representatives were not brought on the record. It is necessary to state this fact, as an argument, which I shall deal with later, has been raised before me by the learned counsel for the appellant that on account of the failure of the plaintiff to bring on record the legal representatives of Chhotu, the appeal filed by the plaintiffs in the first appellate Court had abated.
(2.) TO continue the narration of facts, the defendant No. 1 Gulam Mohd. dinied the alleged personal necessity of the plaintiff for the plot in question as well as the allegation regarding sub-letting, to either defendant No. 2, the Samiti or the defendant No. 3 Chhotu and further pleaded that he himself carries on business in the name of the Samiti and that this business of the Samiti was being carried on by him from the very day the plot was leased out to him and that the receipts for rent had also been issued in the name of the Samiti. The trial Court negatived the plaintiff's allegations regarding personal necessity as well as sub-letting and dismissed the suit. On appeal by the plaintiffs, the learned Additional Civil Judge, Udaipur, while upholding the trial Court's finding on the question of personal necessity, reversed the judgment and decree of the trial Court on the ground of subletting which was held to be proved and in the result decreed the suit for ejectment. Hence, this second appeal by the defendants Gulam Mohd and the Samiti As already stated above, it appears that defendant No. 3 Chhotu who was respondent No. 3 in the first appellate Court, died during the pendency of the first appeal. The appellant Gulam Mohd. has filed his own affidavit in support of his contention that Chhotu died on March 24, 1973 during the pendency of the first appeal and has also produced death certificate issued by the Registrar, Birth and Death, Municipal Council, Udaipur under the Birth and Death Registration Act, 1969. It is submitted that on account of the failure on the part of the plaintiffs to bring on record the legal representatives of Chhotu, the appeal filed by the plaintiff abated and the learned Additional Civil Judge should have dismissed the appeal on this ground. Learned counsel fur the respondents neither denied the factum of death of Chhotu during the pendency of the first appeal nor has he controverted the appellants regarding the date of death of Chhotu and the heirs left by him as mentioned in para No. 2 of Gulam Mohd's affidavit. It must be therefore taken for granted that Chhotu did die during the pendency of the appeal in the lower appellate Court and his legal representatives were not brought on record. The contention of the learned counsel for the appellants is that the result of not bringing on record the legal representatives of Chhotu would be that the decree of dismissal of the suit by the trial Court became final qua Chhotu and there was a possibility of a conflicting decree being passed and was, in fact, passed by the first appellate Court by accepting the appeal and decreeing the plaintiff's suit. In support of his contention, learned counsel has relied upon State of Punjab vs. Nathuram (l), Rameshwar Prasad vs. Shambherilal Jagannath (2), Sri Chand vs. M/s Jagdish Pershad Kishanchand (3) Ramagya Prasad Gupta vs. Murli Prasad (4) Dwarka Prasad Singh vs. Harikant Prasad Singh (5), Nemichand vs. Harak Chand (6), Bhagwan Singh vs. Kulwinder Singh (7) and Jethmal vs. Ramdeo (8 ).
(3.) THE relevant provision on the subject is O. 22, r. 4 of the C. P. C. , which reads as under - " (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives. the Court, on an application made in that behalf, shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit. (2 ). . . (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. " It follows, therefore, that if the Court can deal with the matter in controversy so far as regards the rights and interest of the appellants and the respondent Other than the deceased respondent it is to proceed with the appeal and decide it. It is only when it is not possible for the Court to deal with such matters that it will have to refuse to proceed further with the appeal and, therefore, dismiss it. As observed by their Lordships of the Supreme Court in State of Punjab vs. Nathuram (l) (para 6) - "the question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however. be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court The test to determine this has been described in diverse forms Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court's coming to a decision which would be in conflict with the decision between the appellants and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subjectmatter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (e) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be suecessfully executed. " ;