IMPORTANT POINT
High Court was right in dismissing landlord s eviction petition on grounds of non- payment & bona fide need but its order of remand to ascertain whether there was default in payment of rent for the months of March 1972 and August 1973 was necessary. The judgement in appeal to this extent is set aside.

Headnote:(i) Bihar Buildings (Lease, Rent & Eviction) control Act, 1947-Sections 11(1)(d) and 11(1)(e)-Eviction petition on ground of non-payment and bona fide need of the suit shop-Trial Court dismissing-Appellate Court reversing-Tenant dying-Second Appeal by LRs-High Court reversing Appellate Court but remanding case in regard to default for two months March 1972 and August 1973-Appeal and counter appeal to Supreme Court-Contention by landlords counsel that the impugned order of High Court was a nultity as Second Appeal filed by LRs of statutory tenant-Whether can be entertained for first time in appeal under Article 136? (No)-Whether sustainable on merits? (No)-(C.P.C. 1908-Order 22 Rules 1 and 2).
       Held : The second Appeal, referred to above, was field by the legal representatives of late Lachmi Sahu. Two of them, namely, Kishori lal Burman and Shankar Lal Hurman died in 1991 and 1993 respectively. Their legal representatives were not brought on record before the High Court disposed of the Appeal by the impugned judgment. Therefore. contends Mr.Gupta that on the principle that disposal of the second appeal on merit may lead to passing of inconsistent order by the Court. It ought to have been dismissed by the High Court. In regard to the second limb of the contention of Mr.Gupta it may be noted here that in those appeals both the Burmans as well as the Bajorias filed Interlocutory Applications to bring on record the legal representatives of the said two persons which were allowed and their legal representatives were brought on record. Mr. Gupta now submits that in their applications the Bajorias simply copied all that was stated in the applications of the Burmans, namely, that Chitranjan Burman was karta of the joint family which is in fact incorrect, therefore, the Interlocutory Applications field by Bajorias to recall the order of this Court dated February 2,1988, may be allowed. We are afraid we cannot accept this contention.Once the Bajorias have chosen to adopt the averments contained in the applications of the Durmans, they are bound by it and cannot be allowed to wriggle out of it. As such the order passed by this Court on February 17, 1998 allowing substitution. Which is in the nature of consent order cannot be recalled, In effect it will be treated that the substituted parties are impleaded in these appeals. The contention, the impugned judgment of the High Court is nullity, cannot be entertained; besides it also lacks substance. There is a good reason as to why such a plea cannot be permittted to be raised by the Bajorias in this appeal. This ground was available to them when the Second Appeal was argued in the High Court. As they have not taken the point before the High Court , they cannot be allowed to urge a new point in these appeals under Article 136 of the constitution. Even on merit the contention must fail. There is admittedly no provision in the Act conferring right on the heirs of a tenant. The protection afforded by the Act is available only to a tenant and not to his heirs or legal representatives. It follows that the statutory tenancy is not heritable. If that be so, on the death of Kishori Lal Burman and Shankar Lal Burman their legal representatives did not have any interest in the Second Appeal and in view of the provisions of Order 22 Rule 1 of the Code of Civil Procedure it did not abate and not bringing on record their legal representatives was inconswquential. The cause of action survived to the other appellants and they rightly prosecuted the Second Appeal in the High Court having regard to the provisions of Order 22 Rule 2 of the Code. For these reasons, the judgement passed by the High Court in the Second Appeal cannot be said to be a nullity. (Paras 5, 6 & 7)
       (ii) Bihar Buildings (lease, Rent & Eviction) control Act, 1947-Section 11(1)(c)-Eviction Petition on ground of bona fide need for a small shop-Landlord having other non-residential accomodation-Both Landlord & Tenant are well off-Dismissed by Trial Court and confirmed by High Court in Second Appeal-Whether correct?
       Held : In sofar as the ground of personal requirement under Section 11(1)© of the Act is concerned, the trial court recorded the finding that the personal requirement of the shop by the Bajorias is not reasonable and bona fide. This was confirmed by the High Court. We are, therefore, not inclined to go into the correctness of finding of fact in these appeals. (Para 9)
       (iii) Bihar Buildings (Leaave, Rent & Eviction) Control Act, 1947-Section 11(1)(d)-Eviction petition on ground of non-payment-Dismissed by Trial Court and affirmed by High Court-High Court holding sending rent to one of the con plaintiffs (Anar Devi) the defendants-Respondents are not defaulters-Whether correct? (Yes)-Remanded for two months rent whether correct? (No).
       Held : Admittedly, the premises was purchased by Khem Raj, predecessor-in-interest of the Bajorias. On his death all his heirs became the owners in accordance with the provisions of the Hindu Succession Act. Anar Devi is admittedly one of the co-owners. (Para 16)
       Be that as it may, the fact remains that the rent for the period in dispute was tendered by the Burmans through money orders as seem from receipts - Exhibits E to E 36 - addressed to Anar Devi who is plaintiff No.4 in the present suit for eviction of the Burmans. She gave no explanation as to why she refused to receive the rent. Her refusal is obviously unjustified if not mala fide. If as in this case there has been a tender of rent to Anar Devi, one of the co-owners, of the property and improper refusal to receive the same by her it cannot be said that there is no tender of rent and consequently the Burmans cannot be said tobe defaulter in payment of the rent. (Para 19)
       When rent was admittedly tendered to one of the co-owners. One of the plaintiffs in the suit, it would be unjust nay atrocious to hold that three was no valid tender of rent and pass an order of eviction of the Burmans on that ground. We are, threefore, unable to say that the High Court has committed any illegality in coming to the conclusion it did on this aspect. (Para 21)
       Held, however : As it is found that there has been a proper tender of the rent by Burmans and improper refusal the same by Bajorias it was unnecessary for the High Court to remand the case to the 1st Appellate court to ascertain whether there was default in payments of rent for the months of march 1972 and August 1973. The judgment under appeal to this extent is set aside. Consequently, Civil Appeal No.975 of 19998 is allowed and Civil Appeal No. 3972 of 1998 is dismissed. In the circumstances of the case, we direct the parties to bear their own costs. (Para 24)
       But held also : We make it clear that the questions of determination of reasonable rent and the amount, which Bajorias will be entitled to recover from the Burmans, are left open. (Para 26)

ORDER

These two appeals, by special leave, are from the judgment of the High Court of Patna, Ranchi Bench, in Second Appeal No.29 of 1980 dated September 30, 1997. They arise under the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947 (for short, the Act). Civil Appeal No.975 of 1998 is by the tenants (referred to in this judgment as Burmans ) and Civil Appeal No.3972 of 1998 is by the landlords (referred to in this judgment as Bajorias ).

2. The facts giving rise to these appeals may be stated in brief to appreciate the controversy in them. Title Suit No. Ill of 1974 was filed in the Court of Munsiff, Ranchi by Bajorias against Lachmi Sahu. the original tenant and the predecessor-in-interest of Burmans, for his eviction from shop No.1 measuring 6 x 8 x 6 feet (part of Municipal holding No. 1184). Ward II. Raudhir Prasad Street. Upper Bazar. Ranchi (hereinafter referred to as the shop ). The eviction was sought on two grounds ; (i) non-payment of monthly rent of Rs.20/- for a period of more than three years from February 1971 to June 1974) under clause (d) of sub-section (1) of Section 11; and (ii) reasonable personal requirement of Bajorias in good faith under clause (c) of sub-section (1) of Section 11 of the Act. The original tenant contested the suit on both the grounds. With regard to default, his case was that the rent was paid to the first plaintiff in the suit, namely. Atma Ram Bajoria, but when he refused to receive the same, ii was being sent by money order which was being returned as refused . The personal requirement of the Bajorias was also denied stating that they held many residential as well "s non-residential buildings and. therefore, did not reasonably require the premises in good faith for their occupation. On both the grounds the trial court found against the bajorias and dismissed the suit On appeal the learned judicial Commissioner ,Chhota Nagpur . Ranchi allowed the appeal of the Bajorias.set aside the findings of the trial court on both the grounds and decreed the suit. The Burmans carried the matter in appeal to the High court -Second Appeal No.29 of 1980. By the impugned judgment .the High Court reversed the findings of the 1st Appellate Court on both the grounds but thought it fit to remand the case to the 1st Appellate Court to decide as to whether there had been default in payment of rent for the month of March 1972 and August 1973 .Thus the High Court disposed of the Second Appeal on September 30. 1977. Insofar as the grounds of default in Payment of rent and personal requirement were held against the Bajorias, they field Civil Appeal No. 3972 of 1998 and aggrieved by the remand of case to the 1st Appellate Court in regard for two months indicated above, the Rurmans field Civil Appeal No. 975 of 1998.

3. Mr. Sunil Gupta, the learned council appearing for the Bajorias, has strenuously contended that the arrears of rent not having been paid for a long period of three and a half years. The Burmans were liable to be evicted and that the plea of valid tender of rent by them was found to be incorrect by the 1st Appellate Court. The High Court ought not to have interfered with the finding of fact. Therefore , the appeal has to be allowed. The second contention of Mr.Gupta is with regard to reasonable requirement, it is submitted that the approach of the High Court is erroneous and that the Appellate Court held in favour of Bajorias, therefore. they are entitled to an order of eviction on that ground as well. He has also argued that the impugned order of the High Court is a nullity and this Court may be pleased to make a declaration to that effect.

4. We shall take up the last point first.

5. The second Appeal, referred to above, was field by the legal representatives of late Lachmi Sahu. Two of them, namely, Kishori lal Burman and Shankar Lal Hurman died in 1991 and 1993 respectively. Their legal representatives were not brought on record before the High Court disposed of the Appea

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