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2009 DIGILAW 3819 (ALL)

CHANDAN RAI GARG v. PRESCRIBED AUTHORITY

2009-12-18

SHISHIR KUMAR

body2009
JUDGMENT Hon’ble Shishir Kumar, J.—Heard Sri Pratik J. Nagar, learned counsel for petitioner. 2. This writ petition has been filed against an order by which petitioner’s application for impleadment in a Rent Suit No. 18 of 2004 has been rejected vide its order dated 26.10.2009. 3. It appears that respondent No. 2 and 3 are owners and landlords of the premises No. 43/223, Meston Road, Kanpur Nagar. One late Mukh Lal Agarwal S/o Sri Hazari Lal Agarwal was the grandfather of petitioner. Late Mukh Lal Agarwal died in the year 1976 and tenancy was inherited by father of petitioner Sri Vijay Kumar Agarwal. He died on 27.5.1993 and tenancy was inherited by respondent No. 4 who is mother of petitioner alongwith petitioner and two sisters namely Smt. Anjana Jain and Ms. Alpana Agarwal. Respondent Nos. 2 and 3 purchased property in the year 2004 and there was some dispute, therefore, they filed a case before Prescribed Authority which was numbered as Case No. 18 of 2004 under Section 21 (1)(a) of the Act No. 13 of 1972 alleging that respondent No. 4 is the only heir and she is the sole tenant. When petitioner came to know regarding aforesaid fact, filed an application for impleadment that he inherited the tenancy from his father and, therefore, he is entitled to be impleaded as party in the proceeding. The said application was rejected by Prescribed Authority on the ground that as Smt. Uma Garg is the wife of Sri Late Vijay Kumar Agarwal and mother has been impleaded as a party, therefore, he is not entitled to be impleaded as party to the proceeding. 4. Petitioner has filed this writ petition against the said order dated 26.10.2009 (Annexure 5 to writ petition). A submission made by Mr. Nagar is that after the death of father, petitioner has inherited the tenancy and therefore, if any decree is passed without impleading petitioner that will be a nullity and cannot be executed against him being not party to the proceeding. He has placed reliance upon a judgment of this Court in Gauri Shankar Gupta v. Anita Mishra and another, 2004(1) AWC 5 and has placed reliance upon para 5 of the said judgment. The same is being quoted below : “5. He has placed reliance upon a judgment of this Court in Gauri Shankar Gupta v. Anita Mishra and another, 2004(1) AWC 5 and has placed reliance upon para 5 of the said judgment. The same is being quoted below : “5. Learned counsel for the landlord respondent has argued that late Ram Autar left behind several heirs and it would be very difficult to implead all of them. It has further been argued that one more heir of late Ram Autar has also applied for impleadment. According to the learned counsel for the entire exercise is meant to delay the disposal of the suit. In my opinion for this situation landlord himself is responsible. Ordinarily after the death of the tenant particularly in case of tenancy of non-residential building, all his heirs must be impleaded as tenant in ejectment suit.” 5. Further he has placed reliance upon another judgment in Lalit Kumar v. Neel Kantheshwar and others, 2006(64) ALR 351 and has placed reliance upon para 4 of the said judgment. The same is being quoted below : “4. Learned counsel for the petitioner without disputing the aforesaid proposition has urged that this doctrine cannot apply when a joint tenant applies for impleadment, and he cannot be non-suited on this ground. In support of his contention, he has placed reliance on the judgment of a learned Singh Judge in the case of Gauri Shankar Gupta v. Anita Mishra. Relying upon the judgment of the Hon’ble Apex Court reported in AIR 2001 SC 2251 and AIR 2002 SC 804 learned Single Judge has held that ordinarily after the death of tenants particularly in case of tenancy of non-residential building all the heirs must be impleaded as tenants in ejectment suit. 6. Further learned counsel for petitioner has relied upon a judgment of the Apex Court in Textile Association (India) Bombay Unit v. Balmohan Gopal Kurup and another, (1990) 4 SCC 700 and has placed reliance upon para 4 of the said judgment. The same is being quoted below : “4. Mr. Lalit, counsel for the appellants argued that, the ex parte decree obtained against the joint tenants was equally binding on the respondent. Reference was made in this context to the decisions of this Court in Kanji Manjit v. The Trustees of the port of Bombay, (1962) 3 Supp. The same is being quoted below : “4. Mr. Lalit, counsel for the appellants argued that, the ex parte decree obtained against the joint tenants was equally binding on the respondent. Reference was made in this context to the decisions of this Court in Kanji Manjit v. The Trustees of the port of Bombay, (1962) 3 Supp. SCR 461: AIR 1963 SC 468 and H. C. Pandey v. G. C. Paul, (1989) 3 SCC 77 : AIR 1989 SC 1470 . Both the cases relate to the validity of the notice issued to one of the joint tenants. It was held that the notice issued to one of them would be valid. We do not think that the principle stated in those cases on the facts obtained are relevant to the present case. There is a finding in this case that the respondent was as much a tenant as the mother and the other brother. That being the position the ex parte decree for eviction obtained against his mother and brother without impleading him in that suit has to be set aside. It is not sufficient as the Courts below have said that the decree was not binding upon the respondent. That decree cannot be kept alive against two other tenants and possession of the premises could be exclusively given to the respondent. The respondent cannot be put into exclusive possession of the premises since his mother and brother are also equally entitled to. It seems to us, therefore, the ex parte decree for eviction should be set aside and the petitioner should be impleaded as a party to that suit and it should proceed on merits.” 7. Placing reliance upon aforesaid judgment, learned counsel for petitioner submits that Court has taken a view that, in case, he is not impleaded as party and decree has been passed against him, decree will not be binding on him. Learned counsel for petitioner submits that principle will not be applicable when a joint tenant applies for impleadment and he cannot be non-suited on this ground. Learned counsel for petitioner submits that principle will not be applicable when a joint tenant applies for impleadment and he cannot be non-suited on this ground. The learned counsel for petitioner further made a submission that this Court has taken a view that if during pendency of application or suit if the joint tenant makes an application for impleadment, he is entitled to be impleaded and Court below cannot reject the application on the ground that one tenant is party to the proceeding, therefore, he is not entitled to be impleaded. A view has been taken that ordinarily after the death of tenants all the heirs must be impleaded as tenant in ejectment suit. In such situation, learned counsel for petitioner submits that he is entitled to be impleaded and application filed by petitioner has wrongly been rejected. 8. I have considered the submissions made on behalf of petitioner and have perused the judgments cited by learned counsel for petitioner. This Court has taken a view that in such circumstances if during pendency of application or suit, an application is filed by one of the heir, then he is entitled to be impleaded as a party. Under the general law after the death of tenant his heirs inherit the tenancy even under U.P. Act No. 13 of 1972, in case of non-residential building all the heirs of the tenant inherit the tenancy by virtue of the definition of tenant given under Section 3(a) of the Act. In AIR 1995 SC 676 and AIR 2001 SC 2251 , it has been held that after death of tenant, all his heirs inherited the tenancy jointly and decree passed against one or some of them is binding on non-implemented joint tenants also. However, this doctrine cannot be pressed into service when during pendency of suit, a person claiming to be heir applies for impleadment. In Textiles Association (India) (Supra), the Apex Court while considering the claim of a joint tenant who inherited the tenancy, on his application, set aside the decree and directed that petitioner should be impleaded as a party to that suit and it should proceed on merits. This was a case in which the building in dispute was a residential. It was not a non-residential building. 9. This was a case in which the building in dispute was a residential. It was not a non-residential building. 9. In view of aforesaid fact, I am also of opinion that petitioner was entitled to be impleaded as party because he made an application during pendency of the suit to be impleaded. 10. It is also to be noted that, in case, notices are issued and counter affidavit is invited, then matter will unnecessarily be kept pending before this Court and ultimate result of this writ petition will be the same, therefore, in such circumstances, without inviting counter affidavit, as this Court is convinced that the order of authority below is not proper, therefore, the writ petition is allowed. The order dated 26.10.2009 is quashed and the trial Court is directed to implead petitioner as one of the party and to proceed with the suit expeditiously on merits. 11. No order as to costs. ————