Allahabad High Court
Smt. Musarrat Jahan Alias Rani vs Additional District Judge And 2 Others on 2 December, 2020
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- WRIT - A No. - 10164 of 2020 Petitioner :- Smt. Musarrat Jahan Alias Rani Respondent :- Additional District Judge And 2 Others Counsel for Petitioner :- Sanjay Agrawal Counsel for Respondent :- Ashish Nigam Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Sanjay Agrawal, learned counsel for the petitioner (claiming to be a tenant) and Sri Sandeep Agrawal, learned counsel holding brief of Sri Ashish Nigam, learned counsel for the respondent-landlord.
2. The challenge raised is to the order dated 19.12.2019 passed by Additional District Judge, Court No.8, Bareilly. Through that order, the application filed by the present petitioner, paper no.13-C, filed under Order I Rule 10 read with Section 151 Civil Procedure Code, 1908, praying to be impleaded as an appellant in pending rent appeal no.9 of 2017 (Mohd. Shariq Vs Anoop Kapoor), has been rejected.
3. Necessary for adjudication of the present writ petition, it may be noted that the husband of the present petitioner late Mohd. Anees Shamsi was the tenant of the disputed shop let out by the respondent-landlord Anoop Kapoor. The said Mohd. Anees Shamsi died on 07.05.2006. Thereafter, proceedings under Section 21(1)(a) of the UP Act No.13 of 1972 were instituted by the respondent-landlord before the prescribed authority. That proceeding was registered as case no.6 of 2016 (Anoop Kapoor Vs Mohd. Shariq). In that, Mohd. Shariq, who is the son of the present petitioner filed appearance and contested the matter. Subsequently, vide order dated 01.04.2017, the release application was allowed in favour of the respondent-landlord. It led to filing of appeal no.9 of 2017 by the said Mohd. Shariq. That appeal is still pending.
4. During pendency of the aforesaid appeal, the present petitioner claiming to be a joint/co-tenant first filed an appeal against the order dated 01.04.2017. It was numbered as appeal no.10 of 2017. The same came to be dismissed by order dated 08.05.2017 on the reasoning that the appellant (present petitioner) was not party to the proceedings before the prescribed authority and therefore she did not have any right to file the appeal.
5. Thereafter the present petitioner appears to have filed an application to be impleaded in the appeal no.9 of 2017, instituted by her son Mohd. Shariq.
6. On one hand, learned counsel for the petitioner relying on Section-3(a)(2) would contend that the tenancy being for non-residential purpose, all heirs of the deceased tenant Mohd. Anees Shamsi became tenants upon his death and therefore, were necessary to be heard in the release application proceedings. Consequently, he claims that the petitioner had both a right to file an appeal and/or to be impleaded as an appellant in the rent appeal no.9 of 2017 filed against the release order. In that regard reliance has been placed on three decision of this Court in Smt. Maya Devi Vs. Prescribed Authority, Moradabad & Others 1991 (1) ARC 284; Rafiqa Begum (Smt.) Vs. Abdul Salam & 4 Others 2015 (3) ARC 637 and another decision in the case in Matters under Article 227 No.3696 of 2018 (Smt. Kishan Kumari Vs. Prescribed Authority, Hathras & 2 Others) decided on 29.05.2018.
7. On the other hand, learned counsel for the respondent-landlord has placed reliance on a line of decisions of this Court following the ratio laid down in Harish Tandon Vs. Addl. District Magistrate, Allahabad, U.P. & Others (1995) 1 SCC 537, to submit that there was no defect in the eviction proceedings, as one of the several joint tenants, namely, Mohd. Shariq had been served notice and had been heard. The other joint tenant/s cannot claim any independent right, and therefore, the learned court below has committed no error in rejecting the appeal and the impleadment application filed by the petitioner. He has further placed reliance on a decision of this Court in Hajra Begum Vs. Mansoor Ali & Others 2013 (2) ALJ 422 wherein after considering the gamut of decisions on the point, a learned Single Judge of this Court repulsed a similar plea set up with respect to non-residential tenancy. Another submission has been advanced by learned counsel for the respondent-landlord that the present petitioner never engaged in the commercial activity either along with her husband, the deceased Mohd. Anees Shamsi or with her son Mohd. Shariq, from the disputed premises. It has therefore been submitted that the present petitioner has no right of tenancy and, in any case, if she succeeded to any right on the death of her husband, she never exercised the same and in fact surrendered those rights in favour of her son Mohd. Shariq. Therefore, the present writ petition is stated to have been instituted only to cause delay in the pending rent appeal no.9 of 2017.
8. Having heard learned counsel for the parties and having perused the record, insofar as the principle to be applied is concerned, there is no doubt that notwithstanding the provision of Section 3(a)(ii) of UP Act No.13 of 1972, it is not the position in law that in case of a non-residential tenancy, all heirs of the deceased tenant must necessarily be impleaded as defendant-respondents before such proceeding may arise or be concluded. The position in that regard had been clarified by the Supreme Court long ago in case of Harish Tandon Vs. Addl. District Magistrate, Allahabad, U.P. & Others (supra). Doubt, if any, that may have survived after the aforesaid decision of the Supreme Court, stands clarified by the decision of the learned Single Judge of this Court in Hajra Begum Vs. Mansoor Ali & Others (supra). In paragraph no.42 of that decision it was observed as under:-
"42. The consensus of judicial precedence thus in the context of joint-tenancy/co-tenancy is that a decree passed against one Joint tenant is binding upon other joint tenants also which means that proceedings by not impleading all joint tenants would not vitiate for this reason alone. If, however, it is shown that joint tenants were actually occupying the building in dispute for non residential purposes by carrying on business therein, then, of course, equitable consideration may intervene and he/she may not be evicted under release order, if not impleaded. Similarly non impleadment of one of the joint tenant shall not make release application, under Act, 1972, non-maintainable or vitiated in law."
9. The position then emerges is that though the first no inherent defect may be claimed by a joint tenant in a proceeding for eviction etc. instituted by the landlord with respect to the joint tenancy of which such tenant claims to be a constituent, solely for reason of non-impleadment of such joint tenant or solely for reason of non-issue of notice to such tenant, at the same time, if such a joint tenant was actually occupying the premises for non-residential purposes, by carrying on a business therein, equitable consideration may intervene and his right of impleadment may hinge on the opinion of the court on the aforesaid issues.
10. The necessary consequence of the ratio laid down by this Court in Hajra Begum Vs. Mansoor Ali & Others (supra) therefore is ? it remains with the Court before whom such a right is claimed by the joint tenant (hitherto not party to the proceedings), to examine whether such heir (of the original tenant) and therefore a joint tenant, was an occupant of the building at the time of death of the original tenant and whether he had been carrying on any commercial activity therefrom. If the answer to the aforesaid two issues would be in the affirmative, the court before whom such application may have been filed would have to then examine more carefully whether any prejudice may be caused to such person, if he is not impleaded. It is at that stage, the plea of collusion between the landlord and the impleaded joint tenant may merit any serious consideration.
11. The right to object to maintainabilityof a proceeding on ground of inherent defect is quite different from the right to contest a proceeding on merits. While the courts have ruled that a joint tenant may not set up an independent right to be served notice of eviction or similar proceeding, the right to contest the proceeding on merits does not hinge on a prior notice having been issued. That right would survive subject to the joint tenant establishing the factum of inheritance to the joint tenancy and engagement in a commercial activity from the tenement, since the death of the original tenant.
12. Thus, such a joint tenant may remain obliged to satisfy the concerned court/authority as to the prejudice being caused to him on account of non impleadment in the proceedings. Though, no hard and fast rule can be laid down in this regard, however as noticed in Hajra Begum Vs. Mansoor Ali & Others (supra) that right may be tested on equitable considerations, in the interest of justice.
13. Perusal of the impugned order reveals that though the parties are at variance whether the present petitioner was in occupation over the disputed premises at the time of the death of original tenant Mohd. Anees Shamsi and they are further in dispute whether the present petitioner had ever engaged in or continues to be engaged in any commercial activity at the premises in dispute, the learned court below has not examined or decided the issue at all. The learned court below has not examined the issues correctly and has simply rejected the impleadment application on the ground that the applicant is at best is a joint tenant and therefore not a necessary party.
14. In view of the above, the order dated 19.12.2019 cannot be sustained. It is accordingly set aside. The matter is remitted to the learned court below to decide the petitioner's impleadment application afresh, keeping in mind the observations made above.
15. Learned counsel for the applicant undertakes to bring on record all evidence that she seeks to rely in support of her application for impleadment within a period of one month from today. Once such evidence is brought on record on or before 8 January, 2021, the respondent-landlord shall have one month thereafter to file any evidence in rebuttal by 12 February, 2021. Once the evidence is complete, the parties may be heard afresh on the impleadment application and fresh decision may be within two months therefrom. The petitioner undertakes not to seek any adjournment till decision of the impleadment application.
16. If the learned court below finds the petitioner to be a necessary and proper party, it may allow the impleadment application. Accordingly, no purpose would be served in setting aside the order rejecting the appeal no.10 of 2017, inasmuch as, if any right to be heard is established by the petitioner, she may be heard in the appeal filed by her son.
17. With the above observations, the writ petition is disposed of.
Order Date :- 2.12.2020 S.Chaurasia