A cause of action for claiming eviction of a tenant on the ground of personal bona fide need does not survive to the legal representatives of the landlord after the landlord's death.

( 1 ) THIS second appeal U/s 39 of the Delhi Rent Control Act (hereinafter called the Act) by the tenant is directed against the order of the Rent Control Tribunal accepting the appeal of the respondents and granting an order for recovery of possession of the premises in dispute in their favour.

( 2 ) THE husband of respondent No. 1 and father of respondents 2 to 4, Brij Raj Bhagat, was the landlord in respect of premises bearing No. 24-G, Kalhaji, New Delhi, occupied by the appellant as a tenant. On November 20. 1968, Brij Raj Bhagat filed an application for eviction on the ground of personal bona fide need. This application was dismissed by the Additional Rent Controller on June 6, 1970. Aggrieved from this, Brij Raj Bhagat filed an appeal. Oa April 26, 1972, during the pendency of this appeal, Brij Raj Bhagat died. The Rent Control Tribunal impleaded the present respondents a? the legal representatives of the deceased landlord and by order dated November 23, 1972 accepted the appeal. This order is the subject-matter of this appeal.

( 3 ) IN reply to the application for eviction, amongst others, it was contended by the tenant that the landlord was not entitled to an order of eviction in view of section 14 (6) as the period of five years had pot elapsed from the date when he acquired the premises but this contention was negatived. In the second appeal to this Court the tenant took several grounds, including the ground that the finding that the landlord was entitled to an order of eviction, in spite of section 14 (6), was wrong and also that in any view, after the death of Brij Raj Bhagat, the application for eviction based on the ground of his personal need should have been dismissed. The admitting Bench, admitted the appeal only on the question as to the plea of section 14 (6) of the Act

( 4 ) AT the time of arguments before me, Shri Bahl, the learned counsel appearing for the tenant, has urged that the Supreme Court in Smt. Phool Rani and others Vs. Naubat Rai Ahluwiia (AIR 1973. S. C. 2110=1973. Rajdhani L. R. 319) has now finally decided that order for eviction on the ground of personal need of the landlord could not be passed if the landlord had died during the pendency of the eviction proceeding. Bawa Shivcharan Singh. appearing for the respondents i. e. legal representatives of the landlord, contended that this plea was not open to the appellant in view of the admitting order.

( 5 ) I have heard the learned counsel for the parties on this question. It is true that the admitting order in terms states that the admission was solely to determine the question of section 14 (6) but in my view this does not prevent the appellant from agitating the other question of the subsistence of the need of the landlord after his death during the pendency of the proceedings which he has specifically urged in the grounds of appeal. Rule 11 of Order 41 deals with the power of the appellate court to dismiss the appeal without sending notice to the respondent. Rule 12 then provides that unless the appellate court dismisses the appeal under rule 11, it shall fix a date for hearing the appeal. Rule 11 does not envisage a partial admittance of the appeal unless the other pleas sought to be agitated by the appellant are duly considered by the Court and are negatived by a specific order. In Vattipalle Eswariah Vs. Vattipalle Rameswarayya (AIR 1940 Madras 483) a full Bench of the Madras High Court has held that if the appellate court under rule 11 does not dismiss the appeal summarily it must, by virtue of rule 12 (1) fix a date for hearing "the appeal" and that there is nothing in either rule 11 or rule 12 to suggest that the Court may admit the appeal in part. To the same effect are the observations in the full Bench decision of the Bombay High Court in Krishnaji Shrinivas Jalvadi Vs. Madhusa Appansa Ladaba (AIR 1934 Bombay 207 ). The admitting order in this case does not refer at all to the other pleas taken by the tenant in the gro