l Appeals Nos
487 488 of 1976
Appeal by Special Leave from the Judgment and Order 19121973 of the Gujarat High Court in Civil Revision Application No 540 and 678 of 1970
SK Dholakia and RC Bhatia for the appellants
RP Bhatt and HS Parihar for 1
N Shroff for the re spondent
The Judgment of the Court was delivered by UNTWALIA J
In these appeals by special leave the ques tion which fails for our determination is whether the deci sion of a Bench of this Court consisting of two learned Judges in Phul Rani  Ors
vs Naubat Rai Ahluwalia1 is correct
If not whether the appellants are entitled to get a decree for eviction in respect of the suit premises against the defendant respondent
Thakordas Bhagwandas the father of the three appellants was owner of the suit premises
He was a partner in a partner ship firm styled as Jai Hind Silk Weaving Works
There were three more partners in the firm one of whom was Shantilal Thakordas appellant No 1 son of Thakordas Bhagwandas
The other two were outsiders
The suit was filed against respondent Chimanlal Maganlal Telwala for his eviction from the premises on several grounds
The only ground which need to be mentioned for the purpose of the disposal of this appeal is Thakordas s claim of requiring the premise
reasonably and bona fide for occupation by himself within the meaning of section 131g of the Bombay Rents Hotel and Lodging House Rates Control Act 1947
The necessity pleaded by the original plaintiff was that he required the premises for the use of the partnership firm aforesaid in which he was a partner
The Trial Court decreed the suit in part on April 30 1965 and passed a decree for eviction of the tenant from a portion of the suit premises
Both sides went up in appeal before the First Appellate Court
Thakordas was dead and his heirs namely the present appel lants were the appellants in one appeal and respondents in the other
The first Appellate Court by its judgment dated November 10 2966 maintained the partial decree made by the Trial Court with slight modification
Both the parties went in revision before the Gujarat High Court
The High Court set aside the decree dated November 10 1966 of the First Appellate Court and remanded the case to it for a fresh disposal of the appeal after trying out an additional issue of comparative hardship of the landlord and the tenant as also the question as to whether the substituted heirs of the original plaintiff required the premises reasonably and bona fide for their occupation
The first Appellate Court after remand again passed a decree for eviction from a portion of the suit premises on March 31 1970
Two 1  343 revisions were taken to the High Court one by the appel lants and the other by the respondent
Following the decision of this Court in Phul Rani s case supra the High Court allowed the respondent s revision rejected that of the appellants and dismissed their suit for eviction in toto
Hence these appeals
The foremost and the first question urged before us by Mr Dholakia was that Phul Rani s case was not correctly decided
We agree with this contention and say with respect that we do not subscribe to the view expressed by the Bench of this Court in that case
The original plaintiff in that case had filed the application for eviction under section 141e of the Delhi Rent Control Act 1958
The application was dismissed in the first instance by the Additional Rent Controller Delhi on the ground that the notices to quit were not valid
Plaintiff filed an appeal but died during its pendency
His widow son and two married daughters and two children of a deceased daughter were allowed to be substituted by the Rent Control Tribu nal where the appeal was pending
The case was remanded by the Tribunal and after remand the Additional Rent Controller held that some of the substituted persons require the prem ises bona fide for their occupation
The tenant s appeal to the Tribunal failed
The High Court of Delhi on a fur ther appeal by the tenant took the view that the right to sue did not survive to the heirs of the plaintiff and on that ground it dismissed the ejectment application
The case came up to this Court
The view of the High Court was affirmed
The relevant words of personal requirement of the premises in section 141e of the Delhi Act are for occupation as a residence for himself and members of his family The original plaintiff had pleaded The premises are required bonafide by the petitioner for occupation as a residence for him self and members of his family and that the peti tioner has no other reasonably suitable residential accommodation This Court took the view Thus the requirement pleaded in the eject ment application and on which the plaintiff has rounded 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 prem ises 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
 In our considered opinion in face of the wordings of section 141e of the Delhi Act the view expressed in Phul Rani s case as stated 6 114SCI76 344 above is not correct
If the law permitted the eviction of the tenant for the requirement of the landlord for occupation as a residence for himself and members of his family  then the requirement was both of the landlord and the members of his family
On his death the right to sue did survive to the members of the family of the deceased landlord
We are unable to take the view that the require ment Of the occupation of the members of the family of the original landlord was his requirement and ceased to be the requirement of the members of his family on his death After the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and the occupation of the other members of the family
Many of the substituted heirs of the deceased landlord were undoubtedly the members of his family and the two married daughters and the children of a deceased daughter in the circumstances could not be held to be not members of the family of the deceased landlord
But even so the appellants cannot succeed in this ap peal
Firstly it is doubtful whether the requirement of the premises by the landlord for occupation by the partnership firm in which he is a partner will be tantamount to occupa tion by himself ie by the landlord
Certain decisions of some High Courts were brought to our notice taking the view that it is so
We refrain from expressing our opinion in that regard
We assume as seems to have been the view of the High Court in this case that the requirement of the premises for the use of a partnership firm by the landlord in which he is a partner is covered by section 131g of the Bombay Act
Yet on the facts of this case there is an insurmountable difficulty in the way of the appellants
From the judgment dated March 31 1970 of the First Appel late Court it would appear that on the death of Thakordas in June 1965 a new partnership was constituted
One of his sons Shantilal who was a partner from before was taken as a partner in the new partnership alongwith Thakordas s another son Dhanvantlal Thakordas appellant No 2
There were some outsider partners
Harish Thakordas appellant No 3 a minor son of Thakordas had not been admitted to the benefits of the partnership
He had therefore no interest in the partnership firm Jai Hind Silk Weaving Works
The Appellate Court took the view that the substituted plaintiffs wanted to use the suit premises for the purpose of godown for keeping the yarn clothes and machinery articles and also for a retail shop and show room of the partnership
This in no sense could be the requirement of appellant Harish even assuming that it could be said tO be the requirement of his two cider brothers appellants 1 and 2
In that view of the matter we have got to dismiss the appeal although Mr Dholakia learned counsel for the appellants succeeded in persuading us to differ from the ratio of Phul Rani s case
Counsel for the appellants endeavoured to bring their case within one of the exceptions noted in Phul Rani s case
He submitted that a decree had already been passed in favour of the original plaintiff by the Trial Court and that could not be disturbed on his death either in appeal or revision
We do not accept the contention as sound or 345 correct
In Phul Rani s case no final opinion was expressed on this question
Moreover we find that on the earlier occasion the High Court had set aside the decree and re manded the suit to the First Appellate Court for a fresh decision
There was therefore no decree in existence to attract the exception
In the result the appeals fail and are dismissed but without costs
PHP Appeals dis missed


Summary:
Thakordas father of 3 appellants was the owner of the suit premises
He was a partner in a firm which
had 3 other partners
One of the partners was appellant No 1 the son of Thakordas and two partners were outsiders
A suit for eviction was filed against the respondent on the ground that Thakordas required the premises for the said firm reasonably and bona fide within the meaning of section 131g of the Bombay Rent Act 1947
The trial court passed a decree for eviction in respect of a portion of the premises
Thereafter Thakordas died and the present appellants who are his sons filed an appeal
Likewise the tenant also filed an appeal
Appellants No 1 and 2 togeth er with some outsiders continued the firm
However appel lant No 3 a minor son of Thakordas was not admitted to the benefit of the partnership
The First Appellate Court confirmed the decree of the trial court
The revision application filed by the tenant was allowed and one filed by the appellants was dismissed by the High Court relying on the decision of this Court in Phul Rani  Ors
vs Naubat Rai Ahluwalia 19731 3 SCR 679
In an appeal by special leave the appellants contended 1
Phul Rahi s case was not correctly decided and the right of Thakordas survived in favour of the appellants
The requirement of the firm in which the landlord is a partner will be the requirement of the landlord
Since the decree had already been passed in favour of Thakordas before his death it could not be disturbed on his death either in appeall or in revision
Dismissing the appeal HELD 1 Phul Rani s case was wrongly decided
If the law permitted the eviction of the tenant for the require ments of the landlord for occupation as a residence for himself and members of his family then the requirement was both of the landlord and the members of his family
On his death the right to sue did survive to the members of the family of the deceased landlord
After the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for evic tion for his occupation and the occupation of the other members of the family
343 H 344 A B 2 It is doubtful whether the requirement of the prem ises by the landlord for occupation by the firm in which he is a partner will tantamount to occupation by himself
Even if it is assumed that it will amount to occupation by the landlord since in the new firm the minor son of Thakordas was not admitted to the benefits of the partnership he had no interest in the said firm
Therefore as far as appellant No 3 is concerned he could in no sense be said to require the premises
344 C G 3 The conclusion in Phul Rani s case that if a decree had been already passed in favour of the plaintiff that could not be disturbed on his death is not correctly decid ed
In fact no final opinion was expressed in Phul Rani s case on that question
344 H 345 A 342 Phul Rani  Ors
vs Naubat Rai Ahluwalia 1973 3 SCR 679 overruled