Case: Phool Rani &amp; Others Vs. Naubat Rai Ahluwalia

2. On June 28, 1962 a flat at New Rajinder Nagar, New Delhi, was leased by the plaintiff to the defendant. On failure of the defendant to comply with two notices to quit, plaintiff filed an ejectment application under Section 14(1)(e) ofthe Delhi Rent Control Act, 1958 ("the Act"). Possession was sought from the tenant on the ground that the premises were required by the plaintiffoccupation as a residence for himself and members of his family.The Additional Rent Controller, Delhi, dismissed the application on the preliminary ground that the notice to quit were not valid. Plaintiff filed an appeal against that the 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 appellants. 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 ejectment application for a decision on merits. These two, heirs, are now appellants 5 and 6. Second Appeal 107 and of 1969 filed by the tenant against the order of remand was dismissed by the High Court of Delhi on February 20, 1979.4. As the order of remand passed by the Rent Control Tribunal was not stayed during the pendency of the Second Appeal, the Additional Rent Controller proceeded with the ejectment application and had in the mean while passed an order of eviction against the tenant. By his judgment of February 14, 1969 he held that the plaintiffs widow (appellant 1) his son (appellant 2) the sons wife and three minor daughters of that couple required the premises bona fide for their occupation.5. The tenant appealed against that decision and contended for the first time in appeal that the right to sue did not survive to the heirs of the plaintiff. The Rent Control Tribunal rejected that contention and confirmed the order of eviction on merits.6. In an appeal filed by the tenant (S.A.O. No. 178 of 1970) the High Court of Delhi 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, leaving it open to the heirs to bring a fresh proceeding founded on their own requirements. The correctness of that decision is challenged by the plaintiffs heirs in this appeal by special leave.

Reasoning:
9. Though the plaintiff died during the tendency of the appeal, it is as if he died during the tendency 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 of the merits. It is patent and would be a truism to say that the death of the plaintiff will not cause the ejectment proceeding to abate if the right to sue survives. That is the formula contained in Order 22, Rule 1 of theCode of Civil Procedure, a formula simple in its wording but not simple in its application.as said succinctly in Sarat Chandra v. Mani Mihan, ILR 36 Cal. 799  ; meansright to bring a suit asserting a right to the same relief, which the deceased plaintiff asserted at the time of hisThus, contracts involving the exercise of special skill like a promise to point a picture do not bind the representative of the promisor nor do they create in them a right that can survive the death of the promisor.Cases of the first category are distinguishable because the decisions therein are explicable on the basis, though not always so expressed, that the estate is entitled to the benefit which under a decree, has accured in favour of the plaintiff and, therefore, the legal representatives are entitled to defend further proceedings like an appeal, which constitute a challenge to that benefit.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 decree as it finds it, save in exceptional cases as, for example, where the decree on the face of it is without jurisdiction.Cases of the third category are governed by totally different considerations. Theright to evict the tenant on the grounds available under the Rent Act does not come to an end with the death of the tenant. That right is enforceable against those in whom theinterest resides for the time being.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 thecause of action, his right to sue will not survive to his legal representatives.