JAIN, J. - (1.) ADMIT. Mr. Banwari Sharma, advocate appears for respondents.
(2.) HEARD learned counsel for the parties. The sole plaintiff Mithan Lal filed a suit for ejectment in respect of disputed property against defendant petitioner on the ground of personal bonafide necessity of himself and default in making the payment of rent. During the pendency of the suit, the sole plaintiff Mithan Lal died and thereafter his legal representatives were substituted in his place. The legal representatives moved an application under Order 6 Rule 17 CPC for amendment in the plaint pleading the bonafide necessity of Smt. Saraswati Devi, widow of Mithan Lal, of the disputed premise. The application was contested by the defendant. The trial court vide its order dated 30th October, 2007 allowed the application. Being aggrieved with the same, the present writ petition has been preferred on behalf of the defendant petitioner. The learned counsel for the petitioner contended that earlier suit was filed on the basis of personal bonafide necessity of sole plaintiff Mithan Lal and after his death, the cause of action does not survive and suit is liable to be dismissed, therefore, amendment sought in the plaint should not have been allowed by the trial court. In support of his contention he referred Smt. Phool Rani and others vs. Shri Naubat Rai Ahluwalia (AIR 1973 Supreme Court 2110) and Raghunath G. Panhale vs. M/s. Chaganlal Sundarji and Co. (AIR 1999 Supreme Court 3864 ). The learned counsel for the respondents contended that the present suit was filed for eviction not only on the ground of personal bonafide necessity of Mithan Lal - sole plaintiff, but also on the ground of default in making the payment of rent and after the death of Mithan Lal, his legal representatives have already been substituted, therefore, the judgment of Hon'ble Apex Court in the case of Smt. Phool Rani vs. Shri Naubat Rai which has been delivered on the basis of the facts and circumstances of that case, as mentioned in para 20, is not applicable in the present case. He contended that so far as default in making the payment of rent is concerned, the cause of action remains the same and so far the personal bonafide necessity of legal representative Smt. Saraswati Devi is concerned, the same can be incorporated in the plaint by way of an amendment under Order 6 Rule 17 CPC. In support of his submission he relied upon Pradeep Kumar Paliwal vs. LRs of Mitha Lal & Another {2008 (1) DNJ (Raj.) 68}; Rajesh Kumar Aggarwal and Others vs. K. K. Modi and Others { (2006) 4 Supreme Court Cases 385} = (2006 (3) RLW 1882 (SC); Usha Balashaheb Swami and Others vs. Kiran Appaso Swami and Others { (2007) 5 Supreme Court Cases 602} = (2007 (3) RLW 2583 (SC ). I have considered the submissions of learned counsel for the parties and examined the impugned order. The sole plaintiff Mithan Lal filed the present suit for eviction in the year 1998 for his personal bonafide need as well as default in making the payment of monthly rent. The written statement was filed in the case, issues were framed, plaintiff closed his evidence and matter was pending for defendant's evidence and at that stage the sole plaintiff Mithan Lal died on 6th December, 2006. An application for substitution of legal representatives was filed and the same was allowed. The legal representatives filed an application under Order 6 Rule 17 CPC on 12th April, 2007 in the trial court pleading necessity of Smt. Saraswati Devi, one of the legal representative of deceased Mithan Lal. The trial court allowed the said application vide order dated 30th October, 2007 which is impugned in this writ petition.
(3.) IN Smt. Phool Rani's case (supra), the Hon'ble Apex Court in the facts and circumstances of the case held that legal representatives of landlord (since deceased) cannot continue the suit for ejectment filed by landlord on the ground of personal requirement. Para 11, 12 and 20 of the said judgment are reproduced as under:      " 11. 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 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. 12. 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 proceedings. 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 bona fide 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 bona fide 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 issues. Their requirement, 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 therefore not survive to the appellants and they cannot glean the benefit of the original right to sue. 20. 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 Raghunath G. Panhale's case (supra), the Hon'ble Apex Court considered the aforesaid Smt. Phool Rani's case (supra) in para 12 and 13 and thereafter in para 14 the Hon'ble Apex Court allowed the amendment under the similar circumstances in the pleading. Para 12, 13 and 14 of the judgment are reproduced as under:      " 12. Learned counsel for the respondent, however, raised another point regarding abatement and relied upon Phool Rani vs. Naubat Rai Ahluwalia, (1973) 1 SCC 688: (AIR 1973 SC 2110), to contend that while the matter was in the trial court, the original plaintiff died, that the cause of action based on his bona fide requirement ceased to exist and the suit could not have been continued by his heirs. This was because the original plaintiff's requirement would not be the same as that of his heirs. It is true, the above judgment does support the above contention. On the main point, the above decision was overruled in Shantilal Thakordas vs. C. M. Telwala, (1976) 4 SCC 417 : (AIR 1976 SC 2358), where it was held that if the original plaintiff pleaded that it was his own need and that of family members, the cause of action would survive on his death, to his heirs. In Shantilal's case, it was pointed out that if the landlord claimed possession on the ground of bona fide requirement for himself and his family members, his family members could continue the same eviction case, after the landlord's death, without amendment since the cause of action would survive to them. 13. Now, it is true that in Phool Rani, there was no amendment application by the heirs of the deceased landlord while in the case before us, an amendment application was filed by the heirs and was allowed, putting in issue, their own requirement. It is also true that in Phool Rani, no amendment application was filed and allowed, but there are still observations that, the plaint cannot be amendment for putting in issue the requirement of the heirs inasmuch as the cause of action will be different. 14. Be that as it may, now the question before us is whether when relief for eviction was retained in the amendment and the plaint was amended at the instance of the heirs to put in issue their own requirement and when voluminous evidence was led on both sides and findings given on merits, the question is whether we should at this distance of time hold on basis of Phool Rani, AIR 1973 SC 2110, that the amendment was wrongly allowed and drive the heirs to a fresh suit after thirteen years. The eviction case was filed in 1986 and we note that the tenant had full opportunity to meet the case of the heirs as per the amended pleading. In our view, they suffered no prejudice whatsoever because of the amendment. We, therefore, think that in our discretion, we should not drive the heirs to file a fresh suit on the plea that the amendment was wrongly allowed. We, therefore, in our discretion under Article 136, do not permit this point to be raised by the respondent. " In Pradeep Kumar Paliwal's case (supra), this Court in similar circumstances allowed the amendment in the plaint. Para 9 of the judgment is reproduced as under:      " When a fresh petition can be filed by the party to the suit, then normally the suit or the petition cannot be dismissed on the ground that fresh petition or suit be filed and in that situation, normally amendments are allowed to avoid the multiplicity of the proceedings. In view of the above reasons also, after the death of the original applicant, if the cause accrued in favour of the successor or heirs or deceased for seeking same relief against the same party, then the amendment can be allowed and, therefore, that was rightly allowed by the Rent Tribunal. " ;