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Madhya Pradesh High Court · body

2012 DIGILAW 177 (MP)

Pushpa Agrawal v. Omprakash Agrawal

2012-02-08

N.K.MODY

body2012
ORDER 1. Being aggrieved by the order dated 25.1.2011 passed by I Civil Judge, Class-II. Gwalior in civil suit No. 45-A/2006 whereby application filed by the petitioner under Order I Rule 10 CPC was dismissed. present petition has been filed. 2. Short facts of the case are that eviction suit was filed by the respondent No.1 against respondents No.2 and 3 on the grounds under section 12 (1) (a) and (f) of the M.P. Accommodation Control Act alleging that Madanlal Bansal was tenant of respondent No.1. The suit was contested by the respondents No.2 and 3. During pendency of suit an application was filed by the petitioner under Order 1 Rule 10 CPC wherein it was prayed that being legal representative of deceased/Madanlal Bansal petitioner is also necessary party, therefore, petitioner be added in the array of defendants. The application was opposed and the same was dismissed against which the present petition has been filed. 3. Learned counsel for the petitioner submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be setaside. It is submitted that since petitioner is the legal representative of deceased/Madanlal Bansal, therefore, petitioner was the necessary party. Learned counsel placed reliance on a decision in the matter of Kumar Jagdish Chandra Sinha v. Mrs. Eileen Patricia D'rozarie 1994 STPL (LE) 18818 SC wherein Hon'ble Apex Court has held that undisputedly a contractual tenant has an estate or interest in the subject-matter of the tenancy and heritability is an incidence of such tenancy. In the absence of any provision in the Act to the contrary, all the heirs of such a tenant would therefore, on his death, step in his shoes. The same could not however be said about the statutory tenant in view of the law down in Anand Nivas (P) Ltd. ( AIR 1965 SC 414 ) (supra) as quoted above and the plain and unambiguous language of S. 2 (h), as it then stood. In other words, the heirs of a statutory tenant had no right to the tenancy as such a right was personal and the Act did not make any provision regarding the manner in which such right was to devolve. In other words, the heirs of a statutory tenant had no right to the tenancy as such a right was personal and the Act did not make any provision regarding the manner in which such right was to devolve. Further reliance is placed on a decision in the matter of Taxtile Association (India) Bombay Unit v. Balmohan Gopal Kurup 1990 STPL (LE) 15802 SC wherein suit filed after the death of the main tenant without impleading respondent No.1, the son and the suit was decreed ex-parte and possession was obtained by the landlord Hon'ble Apex Court has held that respondent son was as much a tenant as his mother and brother, hence ex-parte decree was set-aside and possession was restored. On the basis of aforesaid position oflaw. it is submitted that petition filed by the petitioner be allowed and the impugned order passed by the learned Court below be set-aside. 4. Learned counsel for the respondent No.1 submits that petitioner is not a necessary party. It is submitted that petitioner was not in occupation of suit accommodation. Learned counsel placed reliance on a decision in the matter of Shambhudayal v. Suleman 1978 JLJ 398 = 1978 MPLJ 541 wherein this Court has held that death of tenant heirs inheriting tenancy as tenants in common are joint tenants qua landlord. It was further held that service of notice or one heirs sufficient to determine entire tenancy against such person who was in actual possession maintainabe without other being made parties.It is submitted that on the basis of aforesaid position of law the petition filed by the petitioner has no substance and the same be dismissed. 5. After hearing counsel for both the parties at length and keeping in view the fact that before filing of the suit itself Madanlal Bansal had died and petitioner is also one of the legal representative of deceased Madanlal Bansal, therefore, even if, petitioner is not in possession of the suit property, then too, the petitioner was the proper party. In view of this, petition filed by the petitioner is allowed and the impugned order passed by learned Court below is set-aside and respoandent No.1 is directed to implead the petitioner as defendant in the array of defendants. In view of this, petition filed by the petitioner is allowed and the impugned order passed by learned Court below is set-aside and respoandent No.1 is directed to implead the petitioner as defendant in the array of defendants. Petitioner is permitted to file the written statement and if necessary cross-examine the witnesses examined by the respondent No.1 only on the ground that petitioner has been impleaded as party. It is made clear that petitioner is not allowed to delay the process in any manner. Learned Court below is directed to conclude the trial within a period of three months. 6. With the aforesaid observations, petition stands disposed of. D.D. Bansal for petitioner, Aniket Naik for respondent No.1.