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2002 DIGILAW 281 (JK)

Subodh Bhasin v. Vinod Kumar Gupta

2002-09-04

B.L.BHAT

body2002
This Civil Revision is directed against the order recorded by the learned City Judge, Jammu dated 02-05-2002 passed with respect to an application filed in civil original suit for ejectment of a shop titled as Vinod Kumar Gupta v. Prithvi Raj pending decision before the trial court. Defendant namely, Prithvi Raj expired on 20.01.1998 and his legal heir Smt.Krishna Bhasin, his son Subash Bhasin, Avinash Bhasin and his daughters namely, Usha, Kiran Kohli and Sushma Sawhney came to be substituted as defendants in his place. It further appears that Subash Bhasin and Avinash Bhasin so substituted as defendants alongwith their mother and sisters in place of their deceased father relinquished their claim with respect to the suit shop in favour of their mother Smt.Krishna Bhasin. Vinod Kumar Gupta who happened to the be the son of Subodh Bhasin, legal heir of deceased defendant Prithvi Raj came to seek his impleadment as defendant in the said suit for ejectment of the shop on the ground that he is in occupation of the suit shop after the death of his grand father Prithvi Raj and has been transacting business from this shop. His further claim is that during life time of his grand father, the deceased defendant, he associated himself with him in the business from the said shop. The learned trial court after hearing the petitioner - revisionist came to reject the petition after holding that the petitioner has no locus standi to be impleaded as defendant in the suit in question. Heard the learned counsel for the parties. 2. The revisionist has sought his impleadment as defendant in the suit in question on the ground that he was running the business in the shop alongwith his deceased grand father the tenant of the shop and after the death of his grand father he has stepped into his shoes as a result of which he has interest in the suit shop. Their lordships of the apex court in a case titled as Razia Begum v. Anwar Begum, AIR 1958 SC 886 have laid down the following principles to add parties in a suit under Rule 10 Order 1 CPC which is enumerated as under:- "1. Their lordships of the apex court in a case titled as Razia Begum v. Anwar Begum, AIR 1958 SC 886 have laid down the following principles to add parties in a suit under Rule 10 Order 1 CPC which is enumerated as under:- "1. That the question of addition of parties under R. 10 of O. 1 of the Code of Civil Procedure is generally not one of initial jurisdiction of the court but of a judicial direction which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as to the power of the court in contradistinction to its inherent jurisdiction or, in other words, of jurisdiction, in other words, of jurisdiction in the limited sense in which it is used in Section 115 of the Code. 2. That in a suit relating to property, in order that a person may be added as a party he should have a direct interest as distinguished from a commercial interest in the subject matter of the litigation; 3. Where the subject matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it should be in a better position effectfully and completely to adjudicate upon the controversy; 4. the cases contemplated in the last proposition, have to be determined in accordance with the statutory provisions of Section 42 and 43 of the Specific Relief Act.," 3. If the aforesaid principles are applied to the case in hand, I find that the revisionist has no claim to be impleaded as defendant in the suit in question. As indicated suit in which revisionist seeking his impleadment is one for ejectment of the shop under the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 (hereinafter referred to as the Act) filed by the plaintiff landlord against his tenant who expired during the pendency of the suit. For the maintenance of the suit for ejectment under the Act, sine-qua-non is that from the facts and circumstances pleaded in the plaint, it must make out a relationship of landlord and tenant. For the maintenance of the suit for ejectment under the Act, sine-qua-non is that from the facts and circumstances pleaded in the plaint, it must make out a relationship of landlord and tenant. If that is not so, any other enquiry in the matter shall be beyond the scope of the court exercising powers under the said Act. The admitted case of the parties is that the deceased defendant was holding the suit shop belonging to the plaintiff as tenant. The word "tenant" is defined under section 2(6) of the Act which means any person by whom or on whose account rent or any money liable to be paid for the use of house or shop and it includes the legal representatives of such a person, but does not include a person who is placed in occupation of such house or shop without the consent of the landlord. It is celebrated law that the tenancy is a heritable right, it devolves upon the heirs of the deceased tenant. In this behalf the trial court has placed reliance on AIR 1985 SSC 796. This being the position of law, after the death of defendant Prithvi Raj, his tenancy right of suit shop has devolved upon his widow, sons and daughters as per ordinary law of succession, being Class-I heirs u/s 8 of the Hindu Succession Act, 1956 who stand substituted as defendant in place of said deceased defendant. The revisionist, being the sons son of the deceased defendant, cannot inherit the tenancy right of the suit shop under the said Hindu Succession Act in presence of his parental grand mother, uncles and aunts, the persons already brought on record and substituted as defendants in place of deceased defendant. This being so, the revisionist has no direct interest in the matter of suit. It is not the case of the revisionist that he has been put in occupation of the suit shop by his grand father the deceased tenant with the consent of the plaintiff the landlord. 4. Viewed thus, the impugned order does not suffer with any jurisdictional error and this is in no manner illegal or irregular. Therefore, motion of revision fails and is dismissed. Parties are to bear their own costs. Trial court be informed about this order.