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2001 DIGILAW 370 (RAJ)

Ankur Sharma v. Smt. Darshan Bali

2001-03-02

ARUN MADAN

body2001
JUDGMENT : 1. This is a civil revision petition challenging order dated 23.9.2000 of the learned Civil Judge (Jr. Divn.) Kota City (South) in Civil Suit No. 419/88 whereby application filed by petitioner (Ankur Sharma) under Order 1 Rule 10 CPC was rejected. 2. Undisputed facts are that Smt. Darshan Bali (plaintiff respondent No. 1) instituted a civil Suit for eviction of a shop against Dinanath Sharma (father of the present petitioner) (defendant tenant). Dinanath expired on 26.3.87 during the pendency of suit, therefore, he was substituted by his widow Sushila Sharma (respondent No. 2) by impleading her as defendant tenant. On 29.11.99 Ankur Sharma (petitioner) moved an application under Order 1 Rule 10 CPC claiming that on attaining his age of 18 years it came to his notice that he has not been impleaded as party to the eviction suit of a shop in which his father Dinanath was tenant of landlord Smt. Darshan Bali, whereas only his mother Sushila Devi was substituted by impleading her as defendant to the suit after death of his father as against other legal heirs left behind by his father. 3. In reply to the application the plaintiff respondent No. 1 contended that Ankur Sharma did not come within definition of tenant as would be evident from written statement of his mother Sushila Devi wherein she had alleged that during lifetime of original tenant Dinanath so also after his death, she had not been related in any manner to the tenanted shop and that being so, she got moved an application at the instance of Usha Sharma who had indulged in getting set aside ex-parte proceedings in the eviction suit but she has also not given out any information about Ankur Sharma having any connection to the suit shop of commercial business. The plaintiff has pleaded ignorance as to Ankur Sharma having any relation to the alleged business being carried on in the suit shop. After having heard both the parties, the learned Civil Judge rejected the petitioner's application declining his prayer for being impleaded as defendant No. 2 to the eviction suit. Hence, this revision petition. 4. At the admission stage without issuing any notice to either of the parties to the petition, I have heard Shri Naseem Uddin Qazi, learned counsel for the petitioner, and have perused the impugned order. 5. Hence, this revision petition. 4. At the admission stage without issuing any notice to either of the parties to the petition, I have heard Shri Naseem Uddin Qazi, learned counsel for the petitioner, and have perused the impugned order. 5. The learned counsel for the petitioner laying much stress to rely on the Full Bench decision of this Court in Ramjeevani v. Narati Bai, 1989 (2) RLR 308 , besides other decisions rendered in Chimanlal v. Narendra Kumar, 1996 WLC Raj 757 and in Gantusha H. Baddi through L/Rs. v. Meerabai, AIR 2000 SC 1724 : 2000 (4) SCC 586 vociferously contended that the plaintiff (respondent No. 1) ought to have impleaded the petitioner as defendant to the suit for eviction and if not, then at least on attaining his majority, in substitution of his father on his death, because he has every right to move for being impleaded as defendant to the suit. However, the learned trial Court has committed an error of law by not exercising its jurisdiction to implead the petitioner as defendant to the eviction suit who is necessary party and it has resulted in causing miscarriage of justice to him, for which interference is called for by setting aside the impugned order. 6. Having considered the contentions urged by the learned counsel for the petitioner, prima facie I find that only question arises is as to whether the petitioner is entitled to enjoy right of inheritance as heir on the death of his father (original tenant to the demised shop) as contemplated in Section 3(vii)(b) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1976 (for short "the Act"). 7. To resolve the controversy, I must first of all state the circumstances in which Full Bench of this Court and the apex Court laid down the dictum of law in the cases cited by Mr. Qazi.In Ramjeevani v. Narati, 1989 (2) RLR 308 (supra), before the Full Bench of this Court following questions had arisen for consideration:- (1) Whether after the death of the tenant, his widow and children have right to survive by continuing the business which has been conducted by the husband/father ? (2) Whether the meaning assigned by this court to the definition of "tenant" should be adopted in the future also ? (2) Whether the meaning assigned by this court to the definition of "tenant" should be adopted in the future also ? And the question involved interpretation of the definition of the 'tenant' as contained in Section 3(vii) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for brevity "the Act"). In original enactment Section 3 defined "tenant" in following terms:- "3(vii) "tenant" means the person by whom the rent is, or but for a contract express or implied would be, payable for any premises and includes any person holding or occupying the premises as a sub-tenant. By Section 2(6) of the Rajasthan Premises (Control of Rent & Eviction) Amendment Act, 1952 the following words were added in the said definition:- "or any person continuing in possession after the termination of a tenancy in his favour otherwise than under the provisions of the Act." The aforequoted definition originally enacted was amended and under the Rajasthan Premises (Control of Rent & Eviction) (Amendment) Act, 1976 clause (vii) to Section 3 of the Act was substituted by the following clause:- "(vii) 'tenant' means - (a) the person by whom or on whose account or behalf rent is or but for a contract express or implied would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and (b) in the event of death of the person as is referred to in sub-clause (a), his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purposes, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family upto his death." 8. In Ramjeevani v. Narati, 1989 (2) RLR 308 (supra) after taking into consideration earlier decisions of the Apex Court in Damadilal v. Parash Ram, AIR 1976 SC 2229 , V. Dhanpal Chettiar v. Yesodai Ammal, AIR 1979 SC 1745 and Gian Devi Anand v. Jeevan Kumar, AIR 1985 SC 796 the Full Bench answered the questions (supra) as under:- (1) Under clause (b) of the definition of "tenant" contained in sub-section (vii) of section 3 of the Act, the surviving spouse, son, daughter of the deceased tenant is entitled to the protection of the Act without his being required to fulfil the conditions laid down in the latter part of clause (b) and, therefore, the widow and children of the deceased can avail the protection of the Act, in relation to the premises let out for business and commercial purposes and they can carry on the business of the husband or father in the said premises. (2) The decisions of this Court construing clause (b) of the definition of "tenant" contained in sub-section (vii) of Section 3 of the Act wherein it has been held that the surviving spouse, son, daughter can avail the protection of the Act only if they fulfill the conditions laid down in the latter part of clause (b), do not lay down the correct law and the surviving spouse, son and daughter are entitled to avail the protection of the Act without their being required to fulfill those conditions." 9. Let me have a resume of the dictum of law laid down in Gantusa H. Baddi v. Meerabai G. Pai, AIR 2000 SC 1724 (supra) wherein two questions arose for consideration before the Apex Court - "(1) Whether the tenancy in respect of a non-residential purpose (premises ?) can be held to be heritable under the Karnataka Rent Control Act ? (2) Whether an individual being a tenant of business premises and the said individual having become a partner of a firm, if the firm acquires vacant possession of a suitable building, whether the tenant incurs the liability of being evicted u/s 21(1)(p) of the Act ? It was a case where the High Court dismissed the revision petition against the order of eviction holding that under the Act non-residential premises were not heritable. It was a case where the High Court dismissed the revision petition against the order of eviction holding that under the Act non-residential premises were not heritable. Before the Apex Court it was contended on behalf of the appellants that in view of the decisions in Vishnu Narayan Gadskari v. Paralal Baladev Uza, 1995 Supp (4) SCC 428 and Gian Devi Anand v. Jeevan Kumar, 1985 (2) SCC 683 : AIR 1985 SC 796 , the decision in Venkatesh Thimmaiah v. S.S. Hawaldar, 1997 (1) SCC 628 must be held to be wrong. The Apex Court upheld the contention of the appellants by observing as under:- "In view of the law laid down by the Constitution Bench (Gian Devi v. Jeevan Kumar) as well as the earlier decision of this Court in Vishnu Narayan Gadskari, 1995 Supp (4) SCC 428, we have no hesitation to hold that the latter decision in Venkatesh Thimmaiah case, 1997 (11) SCC 628 has not been correctly decided. In the absence of any contrary provisions in the Act, it must be held that the tenancy in respect of a non-residential premises under the Karnataka Rent Control Act is heritable. The conclusion of the High Court to the contrary therefore, cannot be sustained." 10. The Apex Court considered the observations made in its earlier decision in Gian Devi Anand v. Jeevan Kumar, AIR 1985 SC 796 (supra) and allowed the appeal against the order of eviction passed by the revisional authority and reaffirmed by the High Court of Karnataka. 11. In my considered opinion, even the Apex Court, in latest decision (Gantusa H. Baddi v. Meerabai, AIR 2000 SC 1724 (supra) having taken notice of the observations made by the Constitution Bench in Gian Devi Anand's case AIR 1985 SC 796 (supra) (which are being reproduced herein below) in a categorical term held that in the absence of any contrary provision in the Act it must be held that the tenancy in respect of a non-residential premises under the Karnataka Rent Control Act is heritable. 12. 12. The Constitution Bench of the Apex Court in Gian Devi Anand's case AIR 1985 SC 796 (supra) after having considered the definition of "tenant" "landlord" and various other provisions of the Delhi Act as well as the amendment to the definition of "tenant" introduced by the Delhi Rent Control (Amendment) Act, 1976 (Act 18 of 1976) which gives personal protection and personal right of continuing in possession to the heirs of the deceased statutory tenant in respect of residential premises only and not with regard to the heirs of the so-called "statutory tenant" in respect of commercial premises observed that the termination of the contractual tenancy in view of the definition of tenant in the Act does not bring about any change in the status and legal position of the tenant, unless there are contrary provisions in the Act. The Constitution Bench further observed as under:- "We are of the opinion that in case of commercial premises governed by the Delhi Act, the legislature has not thought it fit in the light of the situation at Delhi to place any kind of restriction on the ordinary law of inheritance with regard to succession. It may also be borne in mind that in case of commercial premises the heirs of the deceased tenant not only succeed to the tenancy rights in the premises but they succeed to the business as a whole." The Apex Court further held : "It may be noticed that in some Rent Acts provisions regarding heritability of commercial premises, have also been made whereas in some Rent Acts no such provision either in respect of residential tenancies or commercial tenancies has been made. As in the present Act, there is no provision regulating the rights of the heirs to inherit the tenancy rights of the tenant in respect of the tenanted premises which is commercial premises the tenancy rights which is heritable devolves on the heirs under the ordinary law of succession." In Gian Devi case (supra) the Supreme Court had also held as under:- "If the Rent Act in question defines a tenant in substance to mean a tenant who continues to remain in possession after the termination of the contractual tenancy till a decree for eviction against him is passed, the tenant even after the determination of the tenancy continues to have as estate or interest in the tenanted premises and the tenancy right both in respect of residential premises and commercial premises are heritable. The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the deceased tenant and all the rights and obligation of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of deceased tenant. As the protection afforded by the Rent Act to tenant after determination of the tenancy and to his heirs on the death of such tenant is a creation of the Act for the benefit of the tenants." "If the Legislature makes any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in a specified manner for any particular class of heirs of deceased tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfillment of the condition in the manner and to the extent stipulated in the Act. "In the absence of any provision regulating the right or inheritance, and the manner and extent thereof and in the absence of any condition being stipulated with regard to the devolution of tenancy rights on the heirs on the death of the tenant, the devolution of tenancy rights must necessarily be in accordance with the ordinary law of succession." The seven Judges Bench of the Apex Court in V. Dhanpal Chettiar v. Yesodai Ammal, 1979 (4) SCC 214 (1) : AIR 1979 SC 1745 , while considering the language of Section 10(1) of the AP Building (Lease, Rent & Eviction Control) Act, 1960 similar to Section 13(1) of the Rajasthan Rent Act, whether the statutory lease is to be terminated by issuance of notice u/s 106 of the Transfer of Property Act, held as under:- "Even a special provision is provided by way of abundant precaution only that without this, a tenant continuing in possession after the termination of the contractual tenancy and until an eviction order is passed against him, continues on the same terms and conditions as before and he cannot be evicted unless a ground is made out for his eviction according to the State Rent Act." 13. Let me deal with another decision of the Apex Court in Tara Chand v. Ram Prasad, 1990 (2) 158 (SC) : 1990 (3) SCC 526 , wherein the Rajasthan Rent Act was being considered. The Apex Court observed that Section 3(vii)(b) of the Act as introduced by Act, 14 of 1976 provided that in respect of premises leased out for commercial or business purposes it must be established that the surviving spouse or son or daughter and the heir as the case may be ordinarily had been carrying on the business during the lifetime of the tenant as members of the family in the demised premises and continued to do the business till date of the death of the tenant and to avail of the statutory right under Section 3(vii)(b) there must continue to subsist the unity of action and continuity of membership of the family between the deceased tenant and the spouse etc., and the break in either of the links snaps off the right denuding the continuity of the statutory tenancy. 14. 14. In Tarachand v. Ramprasad, 1990 (3) SCC 526 succession having been opened to the appellants and succeeded in September, 1966 to the estate of the tenant without any hiatus and restriction on the heritable interest in the leasehold right held by the tenant, the amendment Act being admittedly prospective in operations, was held as not applicable to the facts of the case and could not have the effect of divesting their vested rights in the leasehold held by the tenant. However, the Apex Court held, "the appellants are entitled to enjoy the tenancy rights without any restrictions or hedge put by the Amendment Act and thus the Amendment Act does not apply to the facts of the case." The Apex Court then held as under : "But the appellants succeeded to the heritable interest in the leasehold right in the demises premises governed by the Act subject to the rights and limitations prescribed under the Act and also subject to the rights in favour of the respondent created under Section 13(1)(a) to (k) and other provisions of the Act." 15. In Chimanlal v. Narendra Kumar, 1996 (1) WLC (Raj) 757 , after taking into note of aforequoted observations made by the Apex Court in Tara Chand v. Ram Prasad, 1990 (3) SCC 526 (supra) and by the Full Bench of this Court in Ramjeevani v. Norati, 1989 (2) RLR 308 (supra), this Court observed as under : "In view of the aforesaid observations of their Lordships of the Supreme Court, in my considered opinion, the Full bench decision rendered in the case of Smt. Ramjeevani (supra) taking a contrary view does not hold water. Thus, both the courts below had committed no error in decreeing the suit for eviction filed by the plaintiff." 16. In Hardev v. Jaidev through LRs., 2000 (1) WLC (Raj) 675 , this Court while deciding second appeal laid much emphasis by observing that legislature has infused three kinds of tenants within the fold of definition of tenant, i.e. contractual & statutory tenants as referred to in clause (a) to sub-section (vii) of Section 32 of the Rent Act and hereditary tenants who are born on the ashes of contractual or statutory tenants as the case may be, referred to in afore clause (a) with limited inheritable tenancy rights in respect of both residential & commercial premises as family members of the deceased. This Court then held, "Court has no option except to supplement 'posthumous tenant' by creating legal fiction in the definition of the tenant defined under sub-clause (a) and sub-clause (b) of clause (vii) of Section 3 of the Act No. 17 of 1950 with limited right to him to remain in possession over the premises let out to a tenant during his life time as member of his family". This Court also held as under:- "The definition of tenant give under sub-clause (a) of clause (vii) of Section 2 cannot be read in isolation with the definition of tenant given under sub- clause (b) of clause (vii) of the said Section. If the definition of tenant is taken separately under Section 3(vii)(a) and Section 3(vii)(b) in the light of the expression 'otherwise parted with the possession' used under clause (e) of sub-section (1) of Section 13 of the said Act then the hereditary tenant envisaged under Section 3(vii)(b) of Act No. 17 of 1950 would never born and such separate interpretation would defeat the very object of the legislative enactment which provides under Section 3(vii) (b) that in the event of the death of either contractual tenant or statutory tenant as referred under Section 3(vii)(a) his surviving spouse, son, daughter and other heirs in accordance with personal law applicable to him who had been in the case of premises leased out for residential purpose ordinarily residing and in the case of premises leased out for commercial or business purposes are ordinarily carrying on business with him in such premises as member of the family upto his death, are entitled to inherit the tenancy right of the deceased." 17. In this view of the matter, this Court categorically held that in the event of death of a tenant referred to in sub-clause (a), all his surviving heirs in accordance with his personal law applicable to him as members of his family are not entitled to inherit the tenancy right of the deceased in sub- clause (b) but only those surviving heirs who had been in the case of premises leased out for residential purposes ordinarily residing with him as his family members and in the case of premises leased out for commercial or business purposes ordinarily carrying on business with him in such premises as members of his family upto his death, are entitled to inherit the tenancy right of the deceased tenant. To sum up, this Court held that provisions of sub-clause (b) of clause (vii) of section 3 of the Act provides consequences and conditions for inheriting tenancy right of a tenant in the event of his death, therefore, such statutory requirement must be interpreted as mandatory. 18. It is pertinent to mention here that preceding the amendment Act the commercial or business tenancy was not heritable as held in J.C. Chatterjee v. Sri Kishan, 1972 (2) SCC 461 by the High Courts of Rajasthan, Punjab and Haryana and Delhi and for the first time the right to succession has been created under the Amendment Act, 1976. Admittedly the settled legal position preceding the Amendment Act, prevailing in the State of Rajasthan was that the leasehold rights of the tenanted premises for commercial or business purposes governed by the Act was not heritable. 19. Admittedly the settled legal position preceding the Amendment Act, prevailing in the State of Rajasthan was that the leasehold rights of the tenanted premises for commercial or business purposes governed by the Act was not heritable. 19. As rightly expounded by two Judges Bench of the Apex Court in Tarachand v. Ramprasad, 1990 (3) SCC 526 (supra), which had followed the decision of the Constitution Bench (Gian Devi Anand case AIR 1985 SC 796 , ibid) while relying on earlier decisions in Damadilal v. Parashram, 1976 (4) SCC 855 : AIR 1976 SC 2229 , V. Dhanapal Chettiar v. Yesodai Ammal, 1979 (4) SCC 214 : AIR 1979 SC 1745 but overruling the decision in J.C. Chatterjee v. Sri Kishan, 1972 (2) SCC 461 , etc., in my considered opinion, a reading of the amendment to the definition of 'tenant' in Section 3(vii)(b) makes the legislative intent manifest that from the date the amendment Act came into force, on the death of the tenant, under the amended definition of "tenant", if one seeks to avail of the benefit of statutory tenancy under the Act, he must establish to the satisfaction of the Court that the surviving spouse, son or daughter and other heir, in case of residential premises, he/she/they ordinarily had been residing in the premises along with the tenant and continued to do so till date of death of the tenant, and similarly, in respect of the premises leased out for commercial or business purposes it must be established that the surviving spouse or son or daughter and the heir as the case may be ordinarily had been carrying on the business during the life time of the tenant as members of the family in the demised premises and continued to do the business till date of the death of the tenant. 20. Thus viewed, to avail of the statutory right under Section 3(vii)(b) there must continue to subsist the unity of action and continuity of membership of the family between the deceased tenant and the spouse etc. The break in either of the links snaps off the right denuding the continuity of the statutory tenancy. I have lent support from the dictum of law laid down in Tarachand v. Ramprasad, 1990 (3) SCC 526 while following the decision in Giandevi Anand case, AIR 1985 SC 796 (supra). The break in either of the links snaps off the right denuding the continuity of the statutory tenancy. I have lent support from the dictum of law laid down in Tarachand v. Ramprasad, 1990 (3) SCC 526 while following the decision in Giandevi Anand case, AIR 1985 SC 796 (supra). In fact the march of law culminated in Giandevi Anand case (supra) knocked off the bottom of J.C. Chatterjee ratio 1972 (2) SCC 461 (supra). 21. Even recently while dealing with provisions of the Karnataka Rent Act wherein there was no provision regulating the rights of the heirs to inherit the tenancy rights of the tenant in respect of the rented commercial premises whereas under the Rajasthan Rent Act by virtue of the Amendment Act, 1976 clause (vii) to Section 3 of the Act was substituted by giving new definition of 'tenant' regulating rights of the heirs to inherit tenancy rights of the tenant to commercial premises, three Judges Bench of the apex Court in Gantusha H. Baddi case AIR 2000 SC 1724 (supra) held that in the absence of any contrary provisions the tenancy in respect of a commercial premises under Karnataka Rent Control Act is heritable. 22. After having been benefited by the enlightenments wrung out of the dictum of law culminated in Giandevi Anand v. Jeevan Kumar (supra) by the Constitution Bench and followed by three Judges Bench decision in Gantusha H. Baddi v. Meerbai AIR 2000 SC 1724 (supra), it is crystal clear that principles of law were laid down in respect of the inheritance of tenancy rights of either residential or commercial tenanted premises for two of circumstances (1) in case of absence of specific provisions to the contrary or (2) in case of provisions being made in the Act, itself, like in Rajasthan Rent Act by virtue of the Amendment Act, 1976, restricting the benefit and the nature of the protection to be enjoyed in a specified manner for any particular class of heirs of deceased tenant on the condition laid down being fulfilled. 23. 23. Firstly, if the legislature like the Karnataka Rent Act and the Delhi Rent Act, gave personal protection and personal right of continuing in possession to the heirs of the deceased statutory tenant to residential premises only and not with regard to the heirs of the statutory tenant to commercial premises, in my considered opinion also, the devolution of tenancy rights must necessarily be in accordance with the ordinary law of succession. 24. However, since in the Rajasthan Rent Act under the Amendment Act, 1976, newly substituted definition of tenant has been provided regulating the right of inheritance, and the manner and extent thereof by stipulating condition being fulfilled with regard to devolution of tenancy rights on the heirs on the death of the tenant, i.e. to avail of the statutory right u/s 3(vii)(b) of the Act there must continue to subsist the unity of petition and continuity of membership of the family between the deceased tenant and the spouse, it must be established that the surviving spouse or son or daughter and the heir as the case may be, ordinarily had been carrying on the business during the lifetime of the tenant in the demised premises and continued to do the business till date of the death of the tenant.Similarly once the Rajasthan Act defines 'tenant' to mean such a tenant who continues to remain in possession after termination of the tenancy till a decree for eviction is passed, either during lifetime or after death of statutory tenant, thus the legislative intent is explicitly clear that it has stressed upon continuity to have an estate or interest in the tenanted premises either residential or commercial and with that intent in view the legislature has made specific provision in the Rent Act limiting the benefit of right of inheritance to be enjoyed to the heirs of the deceased tenant on the condition laid down being fulfilled, so the benefit of such protection has necessarily to be enjoyed on the fulfillment of the condition in the manner and to the extent stipulated in the Act, itself. In other words, every heir of a deceased tenant who was not residing or carrying on business during life time of a deceased tenant as member of his family is not entitled to inherit in spite of the fact that he is one of the heirs in accordance with personal law applicable to the deceased tenant. In my considered view also, for inheriting the tenancy right under Section 3(vii)(b) of the Act, possession and user of the rented premises by surviving heirs of the deceased tenant referred to in sub-clause (a) during his lifetime is a condition precedent whether the premises is leased out for residential or for commercial purposes. 25. In my considered view also, for inheriting the tenancy right under Section 3(vii)(b) of the Act, possession and user of the rented premises by surviving heirs of the deceased tenant referred to in sub-clause (a) during his lifetime is a condition precedent whether the premises is leased out for residential or for commercial purposes. 25. Applying aforesaid proposition of law, I find that in the facts and circumstances of the case, the petitioner has got no case for being impleaded as defendant to the eviction suit of commercial shop firstly because as rightly held by the trial Court his application for impleadment was filed after about more than ten years of institution of the eviction suit and death of his father, when he was admittedly a minor not capable of carrying on any business with his father (original tenant) and secondly because he has not at all claimed at any point of time that he had been carrying on business with his father in the tenanted shop and that admittedly he was aged 5-6 years at the time of his father's death on or about 26.3.87, therefore, the petitioner cannot be said to have continued to do the business being carried on by his father either during his life time or after his death because the petitioner has failed to establish a condition precedent as referred to in Section 3(vii)(b) of the Act for inheriting tenancy right by application for impleading him as party in substitution of original tenant (deceased), inasmuch as since the defendant Sushila Devi Sharma widow of original tenant Dinanath and mother of the petitioner has already admitted in paras 1 and 2 of her written statement to have no relation or connection to the business having been carried on by original tenant Dinanath either during his life time or after his death, obviously because of the fact that she (Sushila Devi respondent No. 2) was already employed in I.L. Ltd. Kota and continuing in business after death of her husband (original tenant) Dinanath, and that apart above all she has further admitted in her written statement in para 3 that defendant No. 2 Usha Sharma had only been the tenant to the suit shop of plaintiff landlord and wherein defendant No. 2 has been carrying on business of cloth and as sole proprietor of Handloom Emporium she has been paying rent @ Rs. 400/- per month to the plaintiff landlord to the suit commercial shop. 26. Be that as it may, the petitioner has failed to establish on record or in his application moved under Order 1 Rule 10 CPC which has been rejected under the impugned order, that he had been carrying on the business during lifetime of his father (original alleged tenant) in the tenanted suit commercial shop and continued to do the business till date of the death of his father. In the instant case, as per the material on record so far as the petitioner who was aged about 5-6 years at the time of death of his father (original alleged tenant) on 26.3.87, is concerned, in respect of suit premises allegedly leased out for commercial or business purpose, the unity of action and continuity of membership of the family between the deceased tenant and the spousing son (petitioner) has not subsisted and there was break in the links resulting in snapping off the right of inheritance which has denuded the continuity of the statutory tenancy and thereby the petitioner is not entitled to avail of the statutory right u/s 3(vii)(b) of the Act. Accordingly, I have no hesitation to hold that the petitioner has rightly been declined by the trial Court for being impleaded as party to the eviction suit when applied for after 10 years of death of his father, on attaining his majority. There is neither exercise of powers in excess of jurisdiction nor failure of exercise of jurisdiction nor abuse of process of law resulting in miscarriage of failure of justice while passing the impugned order. 27. As a result of the above discussion, this civil revision petition being devoid of any merit is hereby dismissed. The impugned order dated 23.9.2000 of the learned Civil Judge (JD) Kota City (South) in civil suit No. 419/88 rejecting petitioner's application under Order 1, Rule 10 CPC is upheld. The eviction proceedings are pending since 1988, therefore, the trial Court is directed to decide the same as early as possible but not beyond six months from the receipt of certified copy of this order. Ad interim order passed by this Court on 18.12.2000 stands vacated.Revision dismissed.