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2012 DIGILAW 2870 (ALL)

Musharraf Ali v. Shahnawaj Begum and Ors.

2012-12-11

SIBGHAT ULLAH KHAN

body2012
Sibghat Ullah Khan, J.— Heard Sri W.H.Khan learned senior counsel assisted by Sri J.H. Khan learned counsel for the petitioner and Sri M.A. Qadeer, learned senior counsel assisted by Sri M.H. Qadeer, learned counsel for respondent who have appeared through caveat. 2. Petitioner is tenant. Respondent filed suit for eviction against him in the form of S.C.C.Suit no. 8/99, which was decreed. Against that decree petitioner has filed S.C.C.Revision No. 16 of 2008. 3. In the revision, petitioner filed application for amendment of written statement seeking to add the following two pleas therein. 1. Notice is bad in law as through one notice tenancy of two shops separately let out to the same tenant has been terminated, which could not be done. 2. Original tenant had died and all his heirs had not been given notice and had not been impleaded as defendants in the suit. However remaining legal representatives of the deceased tenant got themselves impleaded in the suit. 4. As far as the first amendment is concerned lower revisional Court has categorically held that the said plea is already covered by para 13 of written statement, in which it has been pleaded that notice is null and void. It is therefore quite clear by the finding of lower revisional Court that it will consider this point at the final hearing of the revision. As far as second point is concerned Hon'ble Supreme Court in Harish Tandon Vs. A.D.M. AIR 1995 S.C. 676 :1995(1) ARC220and A.C. Juker Vs. K.P. Mantri, AIR 2001, SC 2251 has held that after the death of tenant his heirs inherit tenancy jointly and notice to one or some joint tenants is sufficient and non impleadment of one or more of the joint tenants is not fatal. 5. Learned counsel for the landlord respondents states that the matter is being delayed inspite of order dated 21.08.2012 passed in writ petition No. 56469 of 2008. The revisional Court earlier granted conditional stay order imposing condition of payment Rs. 1,000/- per month as rent. The said stay order granted by revisional Court is modified and it is directed that eviction of the petitioner during pendency of revision shall remain stayed provided that with effect from December 2012 onwards he deposits rent at the rate of Rs.2,000/-per month by 7th of each succeeding month. 1,000/- per month as rent. The said stay order granted by revisional Court is modified and it is directed that eviction of the petitioner during pendency of revision shall remain stayed provided that with effect from December 2012 onwards he deposits rent at the rate of Rs.2,000/-per month by 7th of each succeeding month. In case of two defaults stay order shall stand automatically vacated. Revision shall be decided very expeditiously, preferably on the next date. 6. By way of abundant precaution it is directed that the plea of invalidity of notice, on the ground that two separate tenancies can not be terminated by one notice, will be open to the petitioner-tenant to be argued before the lower revisional Court. 7. Writ petition is disposed of, accordingly. Petition disposed of. _____________