Judgment:
ORDER
S.D. Jha, J.
1. The short question arising for determination in this appeal is, whether intermeddler Ramlal in no way related to deceased appellant-tenant Dongarji can avoid abatement of the appeal.
2. This second appeal by order dated 26-6-1982 was admitted for final hearing on the following substantial question of law:-
'Whether the Appellate Court committed an error of law in holding that the provisions of the M. P. Accommodation Control Act, 1961 are not applicable to Rajendra Nagar even after its inclusion in the Corporation of Indore '
3. Original defendant/appellant Dongarji after presenting this Appeal died on 2-6-1987 survived by his son Shantilal s/o Dongarji aged 60 years residing at Bombay-9 (Maharashtra). Shantilal did not make any application to be brought on record as Legal Representative of the deceased-appellant. Ramlal presented an application (IA No. 2060/87) dated 15-7-1987 claiming to be an adopted son of deceased Dongarji and also having performed his last rites. The application was opposed by the respondent by reply dated 7-8-1987. In the reply it was submitted that Randal is not adopted son of deceased Dongarji and his natural son Shantilal has not applied to be brought on record as Legal Representative of deceased Dongarji. The appeal in the circumstances, was submitted to have abated. This Court by order dated 13-10-1988 directed the trial Court to hold an enquiry about allegations in the application under O. XXII, Rule 3 of the Code of Civil Procedure presented by Rarnlal and submit its report. The Trial Court has submitted its report on 13-12-1988. This report states that Ramlal could not be legally adopted by Dongarji, who had his son Shantilal alive and there were no ceremonies of adoption of Ramlal and there was also no giving or taking. Findings given by the trial Court in this report were not challenged by Shri Dave, learned counsel representing Ramlal before this Court.
4. Shri Dave submitted that two Courts below had found against plaintiff respondent as regards grounds of. bona fide requirement but had decreed eviction from the suit accommodation only on the ground that protection Under Section 12(1) of the M. P. Accommodation Control Act, 1961 was not available to deceased-defendant Dongarji as M.P.Accommodation Control Act, 1961 was not applicable to Rajendra Nagar, suburb of Indore, where suit accommodation is situated. In doing so, 1st Appellate Court had followed earlier decision of this Court in S.A. No. 258/80; Nathibai v. Premchand decided on 30-10-1981. The ground, however, has been set at rest by the judgment of the Supreme Court in C.A. No. 3393/81; Premchand v. Nathobai decided on 20- 7-1989, in the same case. The Supreme Court held M. P. Acco. Control Act, 1961 as being applicable to Rajendra Nagar. Shri Dave, learned counsel submitted that though Ramlal was not adopted son of deceased-defendant Dongarji, he was living with him and the Trial Court found him to be a member of Dongarji's family. The two Courts had found against plaintiff-respondent on the ground of his bona fide need. He submitted that the suit must, therefore, fail and Ramlal allowed residence in the suit-accommodation. Shri Dave, learned counsel referred to definition of Legal Representative contained in sub-section 11 of Section 2 of the Code of Civil Procedure, 1908 and emphasized that it includes a person who intermeddles with the estate of the deceased. He also submitted that as Ramlal had been by order dated 6-1-1989 allowed to be brought on record as intermeddler, he had a right to present the appeal had not abated.
5. O. XXII of the Code of Civil Procedure deals with abatement of suits. Rule 9(1) of O. XXII of the Civil Procedure Code inter alia provides that where a suit abates under the order, no fresh suit shall be brought on the same cause of action. Rule 11 of O. XXII of Civil Procedure Code that in the application of this order to appeals, so far as may be, the word 'plaintiff shall be held to include an appellant, the word 'defendant' a respondent, and the word 'suit' an appeal.
6. Controverting Shri Dave's submission Shri S. S. Samvatsar, learned counsel representing the respondent submitted that Ramlal had first to cross threshold of maintainability of the appeal after the death of deceased Dongarji and abatement. It was only if the appeal had not abated and Ramlal was legal representative of Dongarji that he could prosecute the appeal. As Ramlal was not the adopted son of deceased Dongarji, the appeal had abated, Rarnlal had no right to prosecute this second appeal. During arguments, following decisions were referred to:
1. Krothapalli Satyanarayana v. Koganti Ramaiah, AIR 1983' SC 452, 2. Smt. Gian Devi Anand v. Jeevan Kumar, AIR 1985 SC 796, 3. Kalyanmal Mills Ltd. v. Wall Mohammad, 1965 MPL 452.
7-8. As Shri Dave, learned counsel does not challenge the finding of the trial Judge that Ramlal is not the adopted son of deceased appellant Dongarji, the decision in Krothapalli Satyanarayan's case (supra) dealing with the proof of adoption and its ceremonies does not require any detailed discussion. The other decision in Gian Devi Anand's case (supra) holding that heirs of statutory tenant are entitled to same protection against eviction as afforded to tenant also at this stage would not require any discussion because admittedly, Ramlal is not heir of the deceased-appellant. The material decision for the present order is one in Kalyanmal Milk's case (supra). In this decision P. K. Tare, Judge of this Court (as he then was) after referring to then available case law on the point, held as follows:-
'In my opinion, different considerations have to be applied to the case of an intermeddler who claims to continue the suit on behalf of the deceased and an intermeddler against whom a party wants to proceed in place of the deceased defendant. As pointed out by Pollock, J., an intermeddler would have the liabilities and obligations, and not the, right to continue the suit. Therefore, even if the intermeddler can be considered to be a legal representative for the purpose of continuing a suit against him as representing the estate of the deceased, he cannot be said to have been armed with a right to continue a suit on behalf of the estate in place of the deceased merely on the strength of his unlawful trespass. He has to establish his right of suit independently of such unlawful possession, as was the case before Pollock, J., who upheld the right of Jatnabai to sue as an heir. If he is unable to do it, he cannot be substituted as a legal representative.
In para 14 of the judgment learned Judge observed that :-
'In the present case, it is clear from the facts on record that Miss Hamida, whose name was permitted to be substituted by the trial Court, was brought up by the deceased, Wali Mohammad, from childhood. She is not shown to have been related to Wali Mohammad in any way. It is also clear that the second respondent, Ismail is a brother of the deceased Wali Mohammad, who however, did not choose to be substituted as legal representative. It appears that Miss Hamida having been brought up by the deceased, is in possession of his estate. But that alone does not confer on her a right of suit on behalf of the estate of the deceased. That right can belong only to a lawful heir. Therefore, I am of opinion that the order passed by the trial Judge cannot be sustained in law.'
9. As would be seen from para 14 of the judgment reproduced above, that the facts of the present case are in material respect very similar to the precedent above. In the precedent Miss Hamida was brought up by deceased Wall Mohammad from childhood and she was not shown to have been related to Wali Mohammad. Ismail did not choose to be substituted as legal representative of Wali Mohammad's estate. In the present case intermeddler Ramlal is in no way related to deceased-appellant Dongarji. The only natural son of deceased Dongarji -Shantilal has not chosen to be substituted as legal representative of deceased Dongarji. As held in the above decision, the right to prosecute the suit in the present case - the appeal, in view of Rule 11 of O. XXII of the Code of Civil Procedure referred to above, can belong only to lawful heir which intermeddler Ramlal is not.
10. As for Shri Dave, learned counsel's submission that Ramlal by order dated 16-1-1989 had been brought on record as intermeddler and therefore, considering the definition of legal representative in sub-section 11 of Section 2 of the Code of Civil Procedure, could prosecute the appeal, the definition cannot be read in isolation, it would have to be read with precedents on the point. Besides, the order dated 16-1-1989 is itself clear that the Court did not express any opinion at that stage on the right of petitioner as intermeddler for bringing him as legal representative of the deceased on record. The order would have to be read along with this qualification. Shri Dave's contention on the point does not help intermeddler Ramlal. It is, therefore, held that intermeddler Ramlal cannot prosecute his appeal as legal representative of deceased-appellant Dongarji and cannot avoid abatement. The appeal is held abated.
11. Shri Dave also argued that deceased-appellant Dongarji had made a gift of his property in favour of intermeddler Ramlal. It is, however, not his case that the suit-accommodation could be gifted by Dongarji a tenant to Ramlal or that he made a gift of the same to him. Even if, he (Dongarji) made a gift of movables to Ramlal that would not alter the position and make him a heir of Dongarji.
12. It is, therefore, not necessary to go into the question of Supreme Court decision in C. A. No. 3393/81, Premchand v. Nathobai, referred to in para 4 above, on the question of applicability of M. P. Accommodation Control Act, 1961 to Rajendra Nagar in the present appeal. The appeal is held to be have abated.