TATIA, J. - (1.) THIS appeal is by the landlord against the dismissal of his suit by the trial court in Civil Original Suit No. 91/86 dated 14. 12. 1992 and which was upheld by the first appellate court in Civil Appeal Decree No. 95/94.
(2.) BRIEF facts of the case are that the plaintiffs-landlords filed the suit for eviction of their tenant deceased Ram Dayal on 19. 3. 1974. The plaintiffs sought eviction of the tenant on the ground of their personal bona fide need. During pendency of the suit, the plaintiffs submitted an application under Order 6 Rule 17 C. P. C. in the trial court on 14. 1. 1986 and submitted that before few years, the defendant has materially altered the suit premises and that fact came to the knowledge of the plaintiffs only on 29. 12. 1985, therefore, the plaintiffs want to incorporate another ground for eviction of the tenant and that is material alteration in the suit premises. The amendment was allowed by the trial court and the amended plaint was filed. The suit for eviction of the plaintiffs against the defendant, therefore, was on the ground of personal bona fide necessity of the plaintiffs and on the ground of material alteration in the suit premises by the tenant. The tenant-defendant filed the written statement as well as counter claim. In the written statement, the tenant-defendant denied any material alteration and submitted that the suit premises was taken on rent in the Samvat Year 1997,i. e. about the year 1940. The suit premises was taken on rent by the defendant's father on rent of Rs. 15/- per month only and for that a rent deed was also executed by defendant's father in favour of the plaintiffs. The defendant submitted that the plaintiffs got the rent of the suit premises increased in violation to the provisions of by the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The defendant, therefore, prayed that the standard rent of the suit premises may be fixed @ 37. 50. As per the provision as was in force on the date when defendant submitted counter claim for fixation of standard rent the basic rent was as it was on 1. 1. 1943 and maximum rent could have been 2-1/2 times of that basis rent. The Rajasthan Premises (Control of Rent and Eviction) Act, 1950 was amended in the year 1975 and certain amendments were made on the basis of which the landlords also could have sought fixation of standard rent so as to increase the rent of the suit premises. The plaintiffs, therefore, filed a separate suit for fixation of standard rent to take benefit because of the amendment of law in the Act of 1950. Under this amended law, the basic rent is the rent of the premises which was as on 1. 1. 1962, therefore, could have been increased by 2- 1/2 times to said basic rent. The plaintiffs' subsequently filed suit was consolidated with the present suit. The trial proceeded and the plaintiffs' suit so far as eviction of the tenant on both the grounds, the personal bona fide necessity and material alteration in the suit premises, was dismissed by the trial court vide judgment and decree dated 14. 12. 1992. The trial court decreed the suit of the plaintiffs so far as fixation of standard rent is concerned and thereby declared the standard rent of the suit premises to be Rs. 100/- per month from 1. 6. 1978. The plaintiffs preferred regular first appeal against the judgment and decree of the trial court dated 14. 12. 1992. In said regular first appeal, the defendant submitted cross-objection against the increase of rent. the first appellate court by judgment and decree dated 4. 6. 1994 upheld the finding of the trial court on issue of personal bona fide necessity and material alteration and thereby the plaintiffs' suit remained dismissed so far as eviction of the tenant is concerned. However, the first appellate court allowed the cross-objection filed by the defendant and set aside the increase of rent made by the trial court and the first appellate court declared the standard rent of the suit premises with effect from 8. 7. 1975 to be Rs. 37. 50 per month. Being aggrieved against the judgment and decree of the first appellate court dated 4. 6. 1994, this second appeal has been preferred by the landlords. Following substantial questions of law were framed by this Court while admitting the appeal on 28. 11. 1994:- " 1. Whether the finding on the question of material alteration effected in the property by the tenant are based on mis-reading and non-reading of material evidence. 2. Whether the lower appellate court erred in not going into the question of fixing of standard rent prayed for by the landlord in view of the fact the application of the landlord fixing of standard rent was after the incorporation of amendment in the Act. "
(3.) IT will be worthwhile to mentioned at this juncture that during pendency of the second appeal, the sole respondent- defendant Ram Dayal died on 18. 11. 1996. The appellant submitted an application under Order 22 Rule 4, C. P. C. before this Court on 16. 1. 1997. In this application, the appellant submitted that right to sue survives to the appellant against the legal representatives of the deceased tenant. Said application was allowed by this Court and all the heirs of deceased tenant Ram Dayal were taken on record as legal representatives in this second appeal. On 29. 1. 2001, an application was submitted by the appellants stating therein that in the life time of deceased- tenant Ram Dayal, he alone was doing the business in the shop and his wife was living with him in the upper portion of the suit premises, therefore, according to the appellants, only the wife of the deceased-tenant could have been made party in the appeal. This application was submitted because of the reason that notices of this appeal were not served upon one of the married daughters of the deceased-tenant and, therefore, after mentioning above fact, it was prayed that the name of daughter of deceased-tenant may be deleted. Said application was allowed by this Court by order dated 19. 2. 2001 and name of respondent Ram Bhanwari was deleted. But no order was sought and passed on the plea which was taken by the appellants that only wife of deceased-tenant should have been impleaded as party in the appeal as legal representative of deceased Ram Dayal. IT will be worthwhile to mention here that there is one application under Order 5 Rule 17, C. P. C. by the appellants wherein it has been stated that one of the sons of deceased tenant namely Purushottam and his wife Smt. Radha Devi are residing with Smt. Radha Devi and he, after reading the notice, did not accept the notice of the appeal and even did not allow the process server to affix the notice, therefore, the service of notice upon said Smt. Radha Devi and Purushottam may be treated as sufficient. On 1. 8. 2003, an application was submitted by the appellants stating therein that the trial court passed the decree and determined the standard rent of the suit premises @ Rs. 100/- per month with effect from 1. 6. 1978. In pursuance of the said decree, the tenant should have deposited the difference amount of the rent in the court. IT is also submitted that since the order of the appellate court was stayed by this Court in this second appeal by order dated 7. 11. 2001, therefore, the tenant-respondent should have deposited the rent @ Rs. 100/- per month at least from 7. 11. 2001. IT is submitted that since the defendant has not deposited the rent, therefore, he is liable to be evicted on this ground. In this application, the appellant submitted that the plaintiff's son Purushottam is doing separate business in adjacent shop and the defendant himself in his statement, admitted that his son Purushottam is doing separate business and has nothing to do with the business of the defendant-tenant. IT is also submitted that defendant's another son Ram Chandra is serving in medical company of veterinary medicines and other son Sushil is also serving in the Rajasthan Bank and as such, none of the family member of the defendant Ram Dayal was doing business in the life time of the deceased-tenant and, therefore, none of the heir of deceased Ram Dayal is tenant as defined under Section 3 (vii) of the Rajasthan Premises (Control of Rent and Eviction ) Act, 1950. The respondent submitted detail reply to the application of the appellant dated 1. 8. 2003 and stated that the respondent is continuously depositing the rent and also stated that the interim order passed by this Court staying the order of the first appellate court by which the rent stands reduced, is of no relevance so far as the present appeal is concerned. For other allegation, the respondent's legal representatives submitted that in the life time of deceased Ram Dayal, his wife Radha Devi was also helping him regularly in the business and after the death of her husband, she was continuously doing the same business. It is also submitted that her grand-sons Mahesh and Virendra were also helping Smt. Radha Devi who was helping to Ram Dayal also in the life time of Ram Dayal. It is also submitted that apart from above, the sons of deceased Ram Dayal were also helping in business of deceased-tenant in his life time and thereafter they were also actively helping in the business of their mother, that is the wife of deceased Ram Dayal. The above facts narrated in detail are relevant because of the reason that the appellants are seeking decree of eviction of the respondents from the suit premises on the ground that none of legal representative of deceased Ram Dayal was doing business in the suit premises during life time and up to the time of death of Ram Dayal and even if it is admitted that Smt. Radha Devi was doing the business in the suit premises from the time of Ram Dayal then said Radha Devi also died. It is also submitted by the learned counsel for the appellants that after the death of Smt. Radha Devi, none of the legal heir of deceased Ram Dayal and Smt. Radha Devi are doing any business in the suit premises. It is also submitted that the grand-sons are not heirs and, therefore, in view of the judgment of this Court delivered in the case of L. R. Of Mishrimal vs. L. Rs. Of Sukh Lal & ors. (2006 (2) DNJ 1117) = 2006 (4) RLW 2890 and Dwarkadass vs. Narayan Dass (2007 (1) RLW 446), the persons may they be family members of the tenant and were carrying on business with the tenant in his life time and continued with business till the death of the tenant even then they are neither tenants as defined under Section 3 (vii) of the Act of 1950, nor they can claim any protection under the Act of 1950. The learned counsel for the appellants also relied upon earlier judgment of this Court delivered in the case of Shyam Lal vs. Hira Lal (1987 RLW 621) as well as in support of his contention that the business in the life time of deceased alone is not sufficient but it should be continued till the time of death of deceased-tenant by the legal heir, the learned counsel for the appellants relied upon the judgment of this Court delivered in the case of Chiman Lal and anr. vs. Narendra Kumar (1995 (2) RLW 415) and Smt. Usha and anr. vs. Sukhsampat Mal (1995 (2) RLW 14 ). ;