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SMT. RAJ KUMARI AND OTHERS versus A.D.J. COURT NO. 7 MUZAFFAR NAGAR AND OTHERS

High Court of Judicature at Allahabad

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Smt. Raj Kumari And Others v. A.D.J. Court No. 7 Muzaffar Nagar And Others - WRIT - A No. 62755 of 2006 [2006] RD-AH 20506 (4 December 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Rakesh Tiwari, J

Heard counsel for the parties and perused the record.

This is tenant's petition challenging the validity and correctness of judgments dated 22.5.2004 (Annexure 1 to the writ petition) passed by the Prescribed Authority and 25.9.2006 (Annexure 4 to the writ petition) passed by Additional District Judge, Court no. 7 in case no. 92 of 2006.

Briefly stated, the facts of the case are that Late Mitrasen, father of the petitioner was tenant of the shop, in dispute on a monthly rent of Rs.100/- .  The respondent no. 2- landlord filed release application- P.A. Case no. 29 of 2001 under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''the Act no. XIII of 1972') for release of the shop, in dispute in his favour, which was allowed by the Prescribed Authority vide judgment and decree dated 22.5.2004.

Aggrieved by the judgment and decree dated 22.5.2004 passed by the Prescribed Authority, brother of the petitioners preferred Rent Control Appeal No. 10 of 2004 under Section 22 of the Act no. XIII of 1972.

During the pendency of appeal, the petitioners moved an impleadment application dated 8.4.2005 on the ground that they are the heirs of the deceased Mitrason, the original tenant. The appeal as well as the application dated 8.4.2005 were rejected vide order dated 21.5.2005.

The case of the petitioners is that during the pendency of aforesaid appeal, the petitioners also filed an appeal together with an application for condonation of delay.  This appeal was also dismissed vide judgment and order dated 25.9.2006 on the ground that the appeal filed by S/Sri Mitrasen, Ashok Kumar and others had already been dismissed and their application for impleadment, in the said appeal, had also been rejected.

Aggrieved, the petitioners have invoked the writ jurisdiction by means of the present writ petition.

Counsel for the petitioners contended that there is no limitation for moving application under Order XXII Rule 10 of the Code of Civil Procedure in view of the fact that the petitioners are legal heirs of original tenant; that the petitioners are covered under Section 3-A(2) of the Act no. XIII of 1972, Section 2(ii)  of the Code of Civil Procedure read with Section 8 of the Hindu Succession Act, 1956 as the building is commercial; that impleadment of the petitioners is necessary under Order X Rule 2(a)(b) of the Code of Civil Procedure and that a litigant should be made to suffer on account of mistake of his counsel as has been held in G. Ramegowda Vs.The Special Land Acquisition Officer, Bangalore - AIR 1988 SC-897; Iqbal Ahmad V. Smt. Shamim Akhtar and others-1987(1) ARC-20; Smt. Gian Devi Anand v. Jeevan Kumar and others-AIR 1986=5 SC-796 and Textile Association (India) Bombay Unit Vs. Balmohan Gopal Kurup and another- AIR 1990 SC-2053.

Counsel for the petitioner also contended that one of the sister's son is working the shop, in dispute, hence the sister has interest in the shop.

Counsel for the respondents contended that the case of the petitioners before the Courts below was that their sister was also the heir of original tenant as such, they be impleaded as necessary party but their case was rejected by the Courts below holding that there was no necessity to implead the sister.

There is no conflict about the law laid down in the aforesaid decision, relied upon by counsel for the petitioners. But, the facts and circumstances of the instant case are distinguishable as in the instant case, Prescribed Authority had passed decree against the original tenant and admittedly, there was no impleadment application of the present petitioners. It was only during the pendency of the appeal that the petitioners moved belated impleadment appliation and the appeal of the original tenant as well as the impleadment appliation were dismissed.  From perusal of judgments of the Courts below, it is apparent that the case of the petitioners that they have not been impleaded, was rejected on the ground that the petitioners adopted a delaying tactics. Law in this regard is settled by Hon'ble the Apex Court and this Court that it is not necessary for the landlord to implead each and every member of the tenant.  

Furthermore, the petitioners before this Court are married daughters of the original tenant.  It is neither their case that they had been normally residing with their father at the time of his death nor they have any share in the shop, in dispute, which has been succeeded by the male lineanl descendants of the original tenant.  The building, in dispute, is a shop. ''Family' has been defined in Section 3(g) of Act No. XIII of 1972 as under:-

"3(g) ''family' in relation to a londlord or tenant of a building, means, his or her

(i) spouse,

(ii) male lineal descendants,

(iii) such parents, grant-parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male-lineal descendant, as may have been normally residing with him or her."

In view of the above definition of ''family', this Court in Chandra Pal Sharma Madhu V. Second Additional District Judge and others- 1974 HVD Allahabad (1)-57 has held that brothers and sisters are not covered under the definition of ''family' as defined in Section 3(g) of U.P. Act No. XIII of 1972.  The expression ''member of family' is, therefore, to be used in a sense that it is consistant with the aforesaid definition and there is no scope of interpreting this expression in a different manner.

Coounsel for the petitioners has failed to show that the married daughters had any share in the shop, in dispute, or  were normally living with their father.  From the arrary of parties, it is clear that all are living separately with their husbands.

The other contention of counsel for the petitioner that since son of one of the sisters is also working in the shop has no force as it does not give her any right as the claim of the petitioners is that the tenancy had devolved upon them on the death of the original tenant being married daughters.  This contention is devoid of any merit for the reason that son of the sister is not a male lineal descendant of the original tenant and in any case, daghter was not atenant in the shop, hence there was no question of tenancy being devolved upon her.

For the reasons stated above, the writ petition fails and is dismissed..  The petitioner-tenants will vacate the disputed accommodation and hand-over its peaceful possession to the respondent-landlords within a month from today and make payment of arrears of rent, if any, within the same period.  In case, they fail to comply with this direction, they will be liable to be evicted by coercive process, in accordance with law, with the aid of local Police and the arrears of rent shall be recoverable as arrears of land revenue.  No order as to costs.

Dated 4.12.2006

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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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