D.K Kapur, J.:— This is a second appeal under Section 39 of the Delhi Rent Control Act, 1958 arising out of an ejectment petition brought by the landlord on the ground of bona fide personal necessity. It was claimed in the petition that the premises were required bona fide by the landlord as a residence for himself and his family. Initially, the ejectment petition was rejected by the Additional Rent Controller on 4th March 1968 on the ground that there was no notice terminating the contractual tenancy and hence the application was not maintainable. The landlord appealed to the Rent Control Tribunal, which held that a valid notice had been given terminating the tenancy and the case was remanded back to the Controller. However, during the pendency of that appeal, the landlord died and his legal representatives were substituted as appellants in the case. This Court also affirmed the decision of the Tribunal in second appeal.

On remand, the Rent Controller held that the claim for bona fide personal requirement was established and passed an order of ejectment. An appeal was taken by the tenant to the Rest Control Tribunal which was rejected. The main ground which was urged by the tenant before the Tribunal was as to whether the cause of action survived the death of the landlord who had instituted the application for eviction. This objection was rejected by the Tribunal on the ground that there was also a claim based on the requirement of the family in the original ejectment petition and, hence the same could be continued by the legal representatives after they became parties.

I have heard Mr. Lekhi on behalf of the appellant. His contention is that a bona fide personal requirement cannot survive the death of the person. As far as the heirs are concerned, his contention is that they can rely on their own personal requirement as landlords but that is not the subject-matter or the case. His submission is that this appeal should be accepted and if the legal representatives have any right they can make it the subject-matter of another ejectment application. Mr. Man Singh, learned counsel of the respondent, on the other hand submits that there are several decisions of the Courts, including this High Court, to the effect that an application for bona fide personal requirement can be continued by the legal representatives.

I may now turn to the various authorities cited. In Vas Dev… v. S. Sohan Singh…, 1968 D.L.T 492, (1) an objection was raised by the tenant at the stage of execution that the decree passed on the ground of personal bona fide requirement could not be executed after the death of the decree-holder. This objection was rejected by Ismail J. on the ground that the executing court could not go behind the decree. In Arjan Dass… v. Madan Lal…., 1970, RC.R 785, (2) the ejectment order was passed in favour of the landlord on the ground of bona fide personal requirement and an objection was raised that the legal representative who had succeeded under a Will was not entitled to execute the order. This was rejected and the aforementioned judgment of Ismail J. was followed. In Anil Kumar v. Jai Narain Gautam, 1970, R.C.R 757, (3) an ejectment decree was passed in favour of the landlord on the ground of bona fide personal requirement of the landlord and his family. The landlord died during the pendency of the tenant's appeal which was allowed by the Tribunal on the ground that the cause of action had disappeared; but, in second appeal the case was remanded back on the ground that the Tribunal should consider the change of circumstances that had come about, and decide the case on the basis that the legal representatives' necessity should be considered, especially as this had already been pleaded in the ejectment petition.

To my mind the ratio of these cases does not apply to the present case for the simple reason that in the first two cases the objection was raised at the execution stage when the cause of action had already ended in a decree which the executing court could not go behind and, in the third case, Order 41, Rule 33, Civil Procedure Code which enables the appellate court to consider subsequent events or changes in fact or law was invoked for the purposes of enabling the court to adjudicate upon the rights of the parties as they then were. I am not aware of any corresponding provision in the Code enabling the trial court to consider a change of circumstances. An amendment of pleading is necessary before any new situation can be considered. In order to determine the controversy in the present appeal it is Only necessary to quote Section 14 (1) (e): —

“ (e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation.”

In order to succeed on this ground of ejectment, the landlord has to establish his requirement to get possession of the premises for his own residence or for the residence of the members of his family dependent on him. In both cases it is the landlord's requirement. In one case for himself and in the other in order to provide accommodation for his family. If the landlord dies then obviously he does not require the premises either for himself or for his family. The controversy has then to be determined on a different cause of action i.e, in relation to the requirement of the successors. This was not the subject-matter of the pleadings or trial. The Controller should have required the application to be amended; the Controller should not have continued the proceedings on the basis of the requirement of the deceased landlord either for himself or for his family.

In the case cited above, Anil Kumar v. Jai Narain Gautam there had been a decree for ejectment passed in the life time of the landlord in which the claim was also partially based on the requirement of the family of the landlord. On the application of the principles set out in Order 41, Rule 33, Civil Procedure Code, the court remanded the case to determine the requirement of the successor. I think that though, there is a difference between that case and the present, I should normally have followed a similar procedure for disposing of this case and would have remanded the case back to the Controller with the direction to permit the ejectment petition to be amended so ass to allow the legal representatives to urge their own requirements. There are several reasons why this should not be done in the peculiar circumstances of the present case.

The landlord died in the present case after the trial had been completed by the Controller. The Controller dismissed the application solely on the ground of want of notice terminating the tenancy. He did not decide the case on merits. The case was remanded back to the Controller after the death of the landlord during the pendency of the appeal before the Tribunal. After remand the application for ejectment should have been amended so as to implead the names of the legal representatives of the deceased landlord and also to include their own needs and requirements as the basis of the ejectment petition. However, the Controller proceeded to dispose of the case without ordering any amendment in the ejectment petition. This in my view has led to a complete mis-trial because the Controller has decided the case as if the previous landlord was still alive. I need hardly mention that there are a number of heirs of the deceased landlord. According to the array of the parties in this appeal they ate his widow, his son, three of his daughters and one son of a pre-deceased daughter. All these persons have an interest in the tenanted premises as co-sharers. According to the Tribunal only four of these persons were joined as legal representations. The actual order impleading either four or six legal representatives has not been found on the record of the case. Now, these legal representatives have a right to institute an application jointly and they have to prove that they jointly do not possess suitable accommodation. Each one of these co-sharers does not individually have the right to institute an application for ejectment against the tenant. The case has been decided by the Controller and the Tribunal on the footing that the landlord's son requires the premises for himself and for his family. This was a case which the son could not individually plead for the purpose of ejectment. I, therefore, come to the conclusion that there has been a mis-trial by the Controller and the Tribunal and the tenant has been called upon to meet a case which was never pleaded in the application for ejectment and to which he had no opportunity to lead evidence in defence. One of the two things are now possible. I should either order the application to be remanded back for re-trial on a new pleading or let the present landlords institute a fresh petition. Virtually these two results are the same. The only difference being that on remand and retrial this case will bear the old number. I, therefore, do not see any reason why the present landlords should not institute a new case on their own cause of action if any.

There is another circumstance which prompts me to hold that this is a case which should not be remanded back. The premises to which this case relates were acquired by the landlord Kishori Lal on 2nd July 1965 and he therefore could not claim to eject the tenant for a period of five years under Section 14 (6) of the Delhi Rent Control Act, 1958 which fixes the period during which a landlord who has acquired premises cannot institute a petition for ejectment on the ground of personal need. The requirement of Section 14 (1) (e) of the Act is that the landlord must be an owner. However, if this ownership is acquired by transfer and not by succession the new owner cannot maintain the application for a period of five years. This application for ejectment was moved within five years of the transfer. However, the authorities below relied on B. K. Khanna v. M. R. Batra, 1968 D.L.T 306 (4) to hold that if the landlord was a landlord even before the transfer then Section 14 (6) was not attracted. It is true that it was so held in that case, but there, were some special circumstances there. The sale in that case was sanctioned in 1954 and the money had been deposited in April 1953. The formal conveyance was however drawn in April 1960. It was therefore held that Section 14 (6) was not attracted. There are no corresponding facts in the present case although it appears that provisional possession was given to the landlord sometime before the actual deed of conveyance was drawn up. Even if the facts correspond with the aforementioned authority, I consider that this is a circumstance against a remand at this stage.

I, therefore, accept this appeal and set aside the ejectment order against the appellant. I, however, make it clear that, this will not disentitle the present landlords from instituting an application for ejectment on their own personal bona fide requirements. There will be no order as to costs in this appeal.

Appeal accepted.