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2015 DIGILAW 3302 (ALL)

Rafiqa Begum v. Abdul Salam

2015-10-16

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal,J. Heard Shri Manish Tandon, learned counsel for the petitioner and Iqbal Ahmad appearing for respondent no. 1 and 2. 2. The release application has been filed for release of non residential accommodation namely one shop at the ground floor of premises No. 98/50-A Beconganj, Kanpur, impleading Naushad Ali, Shadaab Ali and Saif Ali as sons of late Ishrad Ali. It is stated in paragraph 2 of the release application that the father of the opposite parties was doing the business of selling 'Desighee' in the shop in question. After his death, opposite parties are carrying on the readymade business and at present are keeping the shop in question under the lock and key. The need has been set up for sons of the landlord. 3. In the release application, an impleadment application paper No. 51 was filed by widow Smt. Rafiqa Begum wife of late Ishrad Ali Khan. The assertion is that she has intentionally not been impleaded in the release application so as to oust her, and came to know about this fact only in the year 2013. 4. The Court below has rejected the impleadment application only on the plea taken by the respondent-landlord that the applicant being one of the co-tenants in the joint tenancy is not a necessary or proper party. 5. Counter affidavit has been filed to the impleadment application stating therein that after the death of the original tenant all the heirs of the tenant became joint tenant. If one of the co-tenant has not been impleaded, the release application can be maintained. 6. Learned counsel for the petitioner urged that the applicant has a reasonable apprehension that her son may enter into a clandestine arrangement with the respondent-landlord and she may be thrown out without being heard. 7. On the other hand, learned counsel for the respondent vehemently opposed the petition on the ground that no such plea has been taken in the impleadment application the release proceedings can continue without impleading the widow Smt. Rafiqa Begum. 8. Reliance has been placed upon judgment of Supreme Court in Smt. Ran Devi Vs. Bhole Nath 1991 (1) ARC 543 SC; and of this Court in Vivek Gupta Vs. Shri Piyush Chandra Srivastava 2003 (2) ARC 313 ; Gauri Shankar Gupta Vs. Anita Mishra and another reported in 2004 (1) ARC 200 9. 8. Reliance has been placed upon judgment of Supreme Court in Smt. Ran Devi Vs. Bhole Nath 1991 (1) ARC 543 SC; and of this Court in Vivek Gupta Vs. Shri Piyush Chandra Srivastava 2003 (2) ARC 313 ; Gauri Shankar Gupta Vs. Anita Mishra and another reported in 2004 (1) ARC 200 9. Heard learned counsel for the parties and perused the record. There is no dispute about the fact that in case of non residential building, all the heirs of the original tenant become joint tenant. The petitioner is one of the tenant and is placed at number one in the order of heirs of the original tenant, in the personal laws. It would therefore be apt to go through the definition clause " under Section 3 (a) of U.P. Act No. 13 of 1972 which is reproduced as under: - 10. In this Act, unless the context otherwise requires,- (a) "tenant", in relation to a building, means a person by whom its rent is payable, and on the tenant's death- (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; (2) in the case of non-residential building, his heirs; 10. Order 1 Rule 10 (2) CPC provides that the Court may at any stage of the proceeding either upon or without application of either party, may implead a person whose presence is necessary to adjudicate or settle all the question to be involved in the suit. In the opinion of the Court, the petitioner may not be necessary party but she is a proper party to the release proceeding.The apprehension raised by the widow of the original tenant cannot be said to be unfounded. 11. This apart, it is well-settled principle that the Court should make all endevour to bring all the necessary and proper parties on record. 12. In the totality of the facts and circumstances of the instant case, this Court of the view that the judgments relied upon by the learned counsel for the respondents are not applicable in the facts and circumstances of the case. 13. The order dated 29.10.2013 rejecting the impleadment application of the petitioner is set aside. The impleadment application paper no. 51 is hereby allowed. Smt. Rafiqa Begum wife of late Ishrad Ali be impleaded as opposite party in rent case no. 13. The order dated 29.10.2013 rejecting the impleadment application of the petitioner is set aside. The impleadment application paper no. 51 is hereby allowed. Smt. Rafiqa Begum wife of late Ishrad Ali be impleaded as opposite party in rent case no. 36 of 2010. 14. Shri Manish Tandon, learned counsel for the petitioner submits that the petitioner undertakes to file written statement on or before 03.11.2015. 15. The Prescribed Authority is hereby directed to proceed with the matter and make an endevour to decide the release application as expeditiously as possible preferably within a period of four months without granting any unnecessary adjournment to either of the parties. it is further provided that in case the petitioner seeks any unnecessary adjournment, a heavy cost of Rs. 2,000/- shall be imposed upon her for each of such adjournment. 16. With the above direction, the writ petition is allowed.