# PHUL RANI & ORS v. NAUBAT RAI AHLUWALIA

- **Citation:** [1973] 3 S.C.R. 679
- **Court:** Supreme Court of India
- **Decided:** 1973-03-14
- **Case number:** Civil Appeal No. 1879 of 1971
- **Bench:** J. M. Shelat Andy. V. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/phul-rani-ors-v-naubat-rai-ahluwalia-5920
- **Pages:** 8

## Headnote

679
Delhi Rent Control Act-S. 14(1)(e)-Whether on the death of the
plaintiff during pendency of-an ejectment application, the cause of acdon
would survive to hi.9 legal representatives.
The plaintiff after two notice• to quit, filed an ejectment application
against the defenda:nt under S. 14(l)(e) of the
Delhi
Rent
Control
Act 1958. The possession was sought on the ground of personal requirement,
The _Additional Rent Controller, dismissed tbiet application
on a preliminary ground of invalid notice.
During the p<llldency of an
appeal against that decision, the plaintiff died. Appellants 1 to 4 who
are
widow,
son
and
two
married
daughters
of
the
Qeceased,
applied
for being
brought
on
the .record
of
the
appeal
as
his
legal
representatives. The
def<ittdant
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, the appeal had. abated. The Rent Control
Tribunal allowed these two persons also to be impleded as appellants
and remanded the ejectment application fo_r a decis'ion on merits. These
heirs are now appellants 5 and 6. The second appeal filed
by
Ibo
tenant against the ·order of remand was dismissed by the High Court.
As the order of remand passed by the Rent CoJttrol Tribunal wu
not stayed. during the pendency of the second appeal,
the Additional
Rent COJDtroller proceeded .with t)le ejectment application and paaaed .
;an ·order of eviction against the tenant.
The tenant appealed against
that deciskln and contended for the first time that the right to sue did
·not survive to the heirs of the plaintiff. The Rent Control Triblpl
Tejected the contention and confirmed the . drder of eviction on merits.
ln an appeal, the High Court took the view that the right to sue did
not survive IO the heirs of the plain(df and on that ¥rouind dismissed
the ejectment applicati0n. The correctness of that decision is challeng··
ed by the plaintiff's heirs before this Court. The question for decision
was whether the cause of action could survive to his legal represcnta·
tives.
Dismissing the appeal,
HELD : (i) In some cases '*'<Jer the rent Acts, the lllQJ(im actio
personali! moritur cum persona bas 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 111axim is that a penonal action dies with the parties
to the cause of action. Ito the preaent ca..,, it is obvious that the death
of the plaintiff will not cause the ejectment ptoc•edings 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·O, 6820]
·
However, from the pleadings in the
ejectment
application,
the
pl•intllf has founded his right to relief on hD personal requireme,t>t.
So, if the appellants were pennitted to continue the proceedings, the
114 will assume a complexion wholly ·beyond the compass of the original
cause of action, and without a fundamental alteration of the pleadings,·
the appellanta would not be able to continue the proceedings. There·
fore, the appeal must fail.
[683CJ
680
SUPREME COURT REPORTS
[1973] 3 s.c.R.
Moiilal Pannalal v. Kai/ash Narain, A.LR. 1960 M.P. 134; Amar
Nath Bihari v. Jai Dayc.I Puri 1971 (7) Delhi Law .'.fimes 363; S1J1t. Dhan
Devi and Anr. v. Bakshi Ram and Anr., A.LR. 1969 Punjab & Haryana
270; Vas Dev v. Sohan Singh.& Ors. [1968] 40 Delhi Law Times 392;
Dr. Muhammad Ibrahim v. Rehamin Khan & Ors., [1947] 2 M.L.J.
419; ond Rameswar Dayal & Ans. v. Sohankil & Anr., [1963] A.L.J.
198, referred to.

## Text

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PHUL RANI & ORS.
v.
NAUBAT RAI AHLUWALIA
March 14, 1973
[J. M. SHELAT ANDY. V. CHANDRACHUD, JJ.]
679
Delhi Rent Control Act-S. 14(1)(e)-Whether on the death of the
plaintiff during pendency of-an ejectment application, the cause of acdon
would survive to hi.9 legal representatives.
The plaintiff after two notice• to quit, filed an ejectment application
against the defenda:nt under S. 14(l)(e) of the
Delhi
Rent
Control
Act 1958. The possession was sought on the ground of personal requirement,
The _Additional Rent Controller, dismissed tbiet application
on a preliminary ground of invalid notice.
During the p<llldency of an
appeal against that decision, the plaintiff died. Appellants 1 to 4 who
are
widow,
son
and
two
married
daughters
of
the
Qeceased,
applied
for being
brought
on
the .record
of
the
appeal
as
his
legal
representatives. The
def<ittdant
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, the appeal had. abated. The Rent Control
Tribunal allowed these two persons also to be impleded as appellants
and remanded the ejectment application fo_r a decis'ion on merits. These
heirs are now appellants 5 and 6. The second appeal filed
by
Ibo
tenant against the ·order of remand was dismissed by the High Court.
As the order of remand passed by the Rent CoJttrol Tribunal wu
not stayed. during the pendency of the second appeal,
the Additional
Rent COJDtroller proceeded .with t)le ejectment application and paaaed .
;an ·order of eviction against the tenant.
The tenant appealed against
that deciskln and contended for the first time that the right to sue did
·not survive to the heirs of the plaintiff. The Rent Control Triblpl
Tejected the contention and confirmed the . drder of eviction on merits.
ln an appeal, the High Court took the view that the right to sue did
not survive IO the heirs of the plain(df and on that ¥rouind dismissed
the ejectment applicati0n. The correctness of that decision is challeng··
ed by the plaintiff's heirs before this Court. The question for decision
was whether the cause of action could survive to his legal represcnta·
tives.
Dismissing the appeal,
HELD : (i) In some cases '*'<Jer the rent Acts, the lllQJ(im actio
personali! moritur cum persona bas 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 111axim is that a penonal action dies with the parties
to the cause of action. Ito the preaent ca..,, it is obvious that the death
of the plaintiff will not cause the ejectment ptoc•edings 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·O, 6820]
·
However, from the pleadings in the
ejectment
application,
the
pl•intllf has founded his right to relief on hD personal requireme,t>t.
So, if the appellants were pennitted to continue the proceedings, the
114 will assume a complexion wholly ·beyond the compass of the original
cause of action, and without a fundamental alteration of the pleadings,·
the appellanta would not be able to continue the proceedings. There·
fore, the appeal must fail.
[683CJ
680
SUPREME COURT REPORTS
[1973] 3 s.c.R.
Moiilal Pannalal v. Kai/ash Narain, A.LR. 1960 M.P. 134; Amar
Nath Bihari v. Jai Dayc.I Puri 1971 (7) Delhi Law .'.fimes 363; S1J1t. Dhan
Devi and Anr. v. Bakshi Ram and Anr., A.LR. 1969 Punjab & Haryana
270; Vas Dev v. Sohan Singh.& Ors. [1968] 40 Delhi Law Times 392;
Dr. Muhammad Ibrahim v. Rehamin Khan & Ors., [1947] 2 M.L.J.
419; ond Rameswar Dayal & Ans. v. Sohankil & Anr., [1963] A.L.J.
198, referred to.
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 0f 1970.
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Bishan Narain and .0. N. Mahindroo for the appellant.
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P. N. Lekhi and M. K. Garg, for the respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, J.-The plaintiff, who in a Rent-Act applic~-
tion against his tenant sought possession of certain premises on
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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 deE
fondant to comply with two notices to quite plaintiff filed an
ejectment application under seclion 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 appell3ll!s. 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 ejectF
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PHUL RANI v. NAUBAT RAJ (Chandrachud, J.)
681
ment 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, 19'70.
·
As the order of rem~d passed by the Rent Control Tribanal
was not stayed during''.the pendency of the Second Appeal, the
Additional Rent Controller proceeded with the ejectment appli-'.
cation and had in t_h"e 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 ( appel!.uit
2), the son's wife and three minor daughters of tl)at couple re- ·
quired the premises bona-fide for their occupation.
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The tenant appealed against that decision and contended for
the first time in appeal that the right to sue did nc;it 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.O. No. 17g-·:of 1970)
the High Court of Delhi took the view that the pght to sue '.did I
not· survive to the heirs of the plaintiff and on _that ground · it ··
dismissed the ejectment application, leaving i:t open to the heirs
to bring a fresh proceeding founded on their own requiremmts.
The correctness of that decision is challenged by the plaintiff's
heirs in this appeal 1jy 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 que:;tion
as to in what classes of cases, the right to sue survives in favour
of the legal representatives. In some cases und~r the Rent Acts,
the ma.'tiru actio-persona/is moritur cum persona h_as been attemp·
ted to be applied on the death of a necessary party to a suit or
proceeding but that oft-quoted maxim is oft misunlierstood. The
plain meaning of that common law maxim is that a personal ~ction
dies with the parties to the cause of action.
Its pur~ort, 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 er. be sued (or any tort committed against or by the deceased
. in his life-time. The ·action for a tort had to be Hegun in the joint
life'time of Pie 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 paragraph 985).
Nor do we find relevance in th~ provisions of section 306 of
the Indian Succession Act, under which all !lemands whatsoever
. and all rights to prosecute or defend any action or ~pecial procP.ed-
682
SUPREME COURT REPORTS
[1973] 3 S.C.R.
ing existing in favour of or against a person at the time ol his'
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decease, survive to and against his executors or administrators;
except causes of action for defamation and assllult, 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" or granting it would be nugatory. We can duly
press iQto service and that too indirectly, the analogy of the first
part otthe last excepion 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 legal representatives.
Though the plaintiff died during the pendency of ti\e 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 a truism to say that th.l 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 ol the Code of Civil Procedure, a formula simple
in its wording but 1;1ot simple in its application. The ''right to sue"
as said succinctly in Saraj Chandra v. Nani Mihan('r) means 'the
right to bring a suit asserting a right to the same relief which the
deceased plaintiff asserted at the time of his' i:leath". Thus contracts
involving the exercise of special skill like a promise to paint a
picture <!.o not bind the the . representatives of the promisor nor do
they create in them a right thai 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 thoso alone
can reveal the true nature of the right asserted 1iy the plaintiff in
the ejectment proceedings.
In column 18 (a) of the efectment
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."
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In column 19, the "other relevant infonnation" is stated to be
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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 requirements.
Thus, the requirement pleaded in the ejectment application
and on which the plaintiff has founded his right to relief is his
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requirement, or to use an expression which will effectively bring
II) 36 Cal. 799 at p, 801.
>
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PHUL RANI v. NAUBAT RAJ (Chandrachud, I.)
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 ih 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 perjsh with the
plaintiff.
If the appellants were permitted to continue the proceedings,
the /is will assume a complexion wholly ~yond the compass of
the original cause of action. Indeed, it is difficult to see how, without a fundamental alteration of the pleadings, appellant~ could
continue the proceedings. Such an alteration will fall beyond the
scope cf 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(l)(e) provides t<>
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 occup-
·ation 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 issues. 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
plaill'tiff 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 circum&tances in regard thereto
will open up a new vista of inquiry. The plaintiffs right to sue
will thereafter not sllrvive to the appellants and they cannot glean
the benefit of the original right to sue.
684
SUPREME COURT REPORTS
[1973] 3 s.c.R.
Several decisions were cited b:fore 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 unsuccessful tenant;
(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 C.he first category are distinguishable
beca~se the
decisions therein are explicable on the basis, though not always
so expressed, that the estate is entiiled 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,
ILke an appeal, which constitute a challenge to that benefit.
Jn Motilal Pannalal v. Kai/ash Narain, (') 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 1hat the decree
would ensure for the benefit o[ his son and widow. In Amar Nath
Rihari v. Jai Dayal Puri(') the death of the landlord occurred
after the Rent Control Tri1*Jnal 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 pf distinction could
be that the decree for possession passed in favour of the landlord
could be defended by his legal representatives for the bj:neflt of
his estate.
In Smt. Dhan Devi and Anr. v.
Bakhshi Ram and Anr. (')
an application for ejectment was filed by the landlord under the
(1) A.l.R. 1960 M.P. 134.
(2) 1971 (7) Delhi Law Times 363.
(3) A.J.R, 1969 Pb, & Haryana 270,
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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
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filed a r11visional ·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 wer~ 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 applic
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cation for ejectment had abated on his death.
This contention
was iejected 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 nnder 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 d~ree 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 ROns
and daughters filed an execution application, to which the tenants
ra.ised an objection that the order of eviction ~ing personal to the
landlord, was incap'able of execution after his death. It was held
I' 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 ,,f
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 ot execution. A contrary decision in Dr. Muhammad
Ibrahim v. Rahiman Khan and Ors. (2 ) may be said to tum on the
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peculiar language of the particular provision of the Madras House
Rent Control Order, 1945.
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 docs not come to an end
with the death of the tenant. That right is enlorceabile against
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those in whom the tenant's interest resides for the time being. In
Rameshwar Dayal and Anr. v. (Smt. Mohania Died) After her
(I) 1968 (4) Delhi Law Times 391.
(2) 1947 (2) M.LJ.
886
SUPREME COURT ·REPORTS
[1973] 3 S.C.R.
Sri Sohan Lal and Anr. (') which was a case linder 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
lhe 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 cl 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 de<termining 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 matt~r 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 '*1ndle of
facts which constitute the plaintiff's cause of. action, ))is 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.
Cl) 1963 A.L.J. 198.
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