Rajasthan High Court - Jaipur
Govind Narayan vs Bodh Raj And Ors. on 5 January, 1998
Equivalent citations: 1998(1)WLN205
JUDGMENT Shiv Kumar Sharma, J.
1. Instant revision, impugns the order dated Feb. 28, 1996 of the learned Additional District Judge No. 1, Alwar whereby the application filed by the legal representatives of deceased tenant for bringing them on record was allowed and they were ordered to be impleaded as appellants in the appeal.
2. Learned court of Munsif Alwar on April 11, 1986, decreed the suit for eviction instituted by the plaintiff petitioner (for short the land lord) and the defendant tenant Bodh Raj (for short the tenant) was directed to vacate the shop in dispute. The tenant preferred appeal assailing the judgment and decree of the trial court. During the pendency of appeal the tenant Bodh Raj expired on April 12, 1988. His legal representatives filed an application on July, 11, 1988 for bringing them on record as appellants. The land lord contested the application on the ground that none of the legal representatives were working with deceased Bodh Raj during his life time in the disputed commercial premises and therefore in view of Section 3(vii)(b) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short the Act) the application deserved to be dismissed.
3. Learned appellate court took seven and half years time to decide the said application.
4. Before adverting to the rival contentions it will be useful to refer Section 3(vii)(b) of the Act which recites thus-
3 (vii) "tenant" means:
(a)....
(b) in the event of death of the person as is referred to in sub Clause (a), his surviving spouse, son, daughter, and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purposes ordinarily residing and in the case of premises leased out for commercial purposes, ordinarily carrying on business with him In such premises as member of his family upto his death.
(Emphasis Supplied)
5. In Smt. Ram Jeevan and Ors. v. Smt. Narati Bai (RLR 1989 (2) p. 308) the question which was referred to Full Bench, was, "whether after the death of the tenant his widow and children are entitled to retain the premises for the purposes of carrying on the business which is being carried on by the tenant in the said premises.
Full Bench of this Court answered the reference as under:
(1) Under Clause (b) of the definition of tenant contained in Sub-section (vii) of Section 3 of the Act, the surviving spouse, son, daughter of the deceased tenant is entitled to the protection of the Act without his being required to fulfil the conditions laid down in the latter part of the Clause (b) and, therefore, the widow and children of the deceased tenant can avail the protection or the Act, in relation to the premises let out for business and commercial purposes and they can carry on the business of the husband and father in the said premises.
(2) The decisions of the court construing Clause (b) of the definition of tenant contained in Sub-section (vii) of Section 3 of the Act wherein it has been held that the surviving spouse, son, daughter can avail the protection of the Act only if they fulfil the conditions laid down in the latter part of Clause (b) do not lay down the correct law and the surviving spouse, son and daughter are entitled to avail the protection of the Act without their being required to fulfil these conditions.
6. Mr. Prakash Chand Jain learned Counsel appearing for the land lord canvassed that ratio of Ramjeevan's case (supra) was wrongly relied upon by Court below. The dictum of the Supreme Court in Tara Chand v. Ram Prasad was applicable in the case on hand. The provisions of Transfer of Property Act were not applicable and the right to defend the action especially in appeal could have been only claimed by the person who was carrying on business in the disputed commercial premises with the deceased tenant at the time of his death. As none of the legal representatives were carrying on business with the deceased tenant, they could not have been impleaded in the appeal.
7. I am unable to pursuade myself to agree with the aforesaid arguments of the learned Counsel. In Tara Chand v. Ram Prasad (supra) a shop was let out to tenant Smt. Anandi for a period of 11 months. After expiry of the said period the lease was terminated by the land lord by a notice under Section 106 of the T.P. Act but she remained in possession and continued to carry Kirana business in the shop. She died in September 1966. The action for ejectment was initiated by the land lord on the premise that on the death of tenant, her legal representative had no right to continue in occupation of the demised premises. The trial court dismissed the suit on the ground that Smt. Anandi paid and the landlord accepted the rent after determination of lease. So she was a tenant holding over. During the pendency of appeal the Act was amended through Rajasthan Premises (Control of Rent and Eviction) Ordinance 26 of 1975 which was replaced by Act 14 of 1976. Consequently, the legal representatives of Smt. Anandi amended the written statement contending that they have been jointly carrying on the business in the demised premises alongwith Smt. Anandi and therefore were entitled to the continuance of the tenancy. The appellate Court confirmed the decree of the trial court. The High Court held that as the legal representatives of Smt. Anandi had not carried on the business with her during her life time as family business they were not entitled the benefit of the amended definition of the tenant. Accordingly decreed the suit.
In para 12 of the said Judgment, their Lordships of the Supreme Court propounded thus:
Under Hindu Succession Act the heirs of the deceased tenant are entitled to succeed, not only to his business but also to his tenancy rights under the Rent Act which protects the heirs from the ejectment except in accordance with that Act. Therefore despite the termination of the tenancy the tenancy rights are heritable and the heirs of the tenant are entitled to enjoy the protection of the Act.
In para 16 of the judgment it was held that the Amendment Act being prospective in operation did not apply in the facts of that case and did not have the effect of divesting vested rights in the lease hold held by the tenant. The appeal of the legal representative was therefore allowed.
(Emphasis Supplied)
8. Learned court below has rightly placed reliance on Ramyeevan's case (supra) and I see no jurisdictional error in the impugned order. If the order is allowed to stand it would not occasion failure of justice. It will not be out of place to mention that the land lord himself in another suit instituted by him against tenant Bodh Raj under Section 6 of the Act for fixation of standard rent in the court of Civil Judge (Junior Division) Alwar, moved an application for impleading the sons and widow of deceased tenant and they were impleaded as such.
9. In the result the revision fails and is hereby dismissed. However, looking to the fact that appeal is pending since 1986 I direct learned appellate court to decide the same within two months from the date of receipt of this order. Interim order passed by this Court on may 3, 1996 stands vacated. Costs easy.