Allahabad High Court
Kamaluddin vs Prescribed Authority /Addl Civil Judge ... on 27 September, 2023
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:62621 Court No. - 19 Case :- MATTERS UNDER ARTICLE 227 No. - 4859 of 2023 Petitioner :- Kamaluddin Respondent :- Prescribed Authority /Addl Civil Judge (S.D.) Court No.21 Lko. And 7 Others Counsel for Petitioner :- Umesh Chandra Saxena,Diwakar Pratap Singh Rathore,Santosh Kumar Maurya Counsel for Respondent :- Abdul Khabeer Hon'ble Jaspreet Singh,J.
Heard Sri Mohd. Arif Khan, learned Senior Counsel along with Sri U.C. Saxena, learned counsel for the petitioner as well as Sri Aftab Ahmad, learned counsel for the private respondent no. 2 on caveat.
The instant petition has been preferred under Article 227 of the Constitution of India assailing the order dated 25.07.2023 whereby the Prescribed Authority (exercising the powers under U.P. Act 13 of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "U.P. Act 13 of 1972) upon an application made by the petitioner bearing Paper No. C-38 seeking impleadment of all the legal heirs of the deceased tenant has been rejected.
The submission of learned Senior Counsel for the petitioner is that the private respondent No. 2 has instituted a petition under Section 21 (1) (a) of the U.P. Act 13 of the U.P. Act 13 of 1972 registered as P.A. Case No. 58 of 2018. Initially, one Sri Kamaluddin (the petitioner herein) was the sole impleaded opposite party. In paragraph 4 of the release application, it was clearly stated by the land-lady/private respondent no. 2 herein that earlier Late Moinudeen, father of the petitioner was a tenant and he is said to have died in the year 1996 leaving behind his legal heirs and only Kamaluddin was impleaded as sole respondent.
While filing the written statement, the petitioner herein, in paragraph 4 stated that Sri Moinudeen, the father of the opposite party who was the erstwhile tenant had died in the year 2004 and not in the year 1996 as stated by the applicant. In paragraph 23 of the written statement, the names of the other legal heirs of Moinudeen were also mentioned indicating that there were seven sons and two daughters of Late Moinudeen.
The record would further indicate that at one point of time, two of the legal heirs of Moinuddeen namely Nihaluddin and Ms. Rana Warsi had moved an application seeking their impleadment in the release application and the said application was allowed by the Prescribed Authority by means of order dated 19.12.2022, as a result, the other two legal heirs of Moinuddeen were also impleaded. Thereafter the petitioner made an application that since the other legal heirs, three out of seven have already been impleaded, it would be in the fitness of things that the other legal heirs which have been left, though, the names have already been indicated in the said application yet the applicant has not impleaded them, consequently, they may be permitted to be impleaded. This application dated 10.04.2023 has been rejected and in this fashion, the petitioner has approached this Court.
The submission of learned Senior Counsel for the petitioner is that in terms of Section 3 (a) of the U.P. Act 13 of 1972, the word 'tenant' has been defined. It further creates a distinction that in so far as the residential premises are concerned only such legal heirs who normally resided with the original tenant are covered in the definition of tenant, however, where the premises is of commercial in nature, then all the legal heirs would be the tenants.
It is thus submitted that in view thereof it was incumbent upon the Prescribed Authority to have permitted the legal heirs of the deceased tenant to be impleaded and the application of the petitioner ought to have been granted, however, the same was rejected by the Prescribed Authority on the ground that the application has been moved by the present petitioner and not by the other heirs of Late Moinuddeen and moreover since the applicant before the Prescribed Authority had a right to implead any or all of the legal heirs, it could not affect the petition, consequently, the application was rejected.
Sri Aftab Ahmad, learned counsel appearing for the private respondent no. 2 refuting the submissions states that the proceedings under U.P. Act 13 of 1972 is of summary in nature. The applicant has already impleaded one of the legal heirs and thereafter upon an application made by two other such heirs of Late Moinudeen, they have also been impleaded as a party. The attempt of the petitioner is to delay the proceedings and even otherwise since upon the death of the original tenant, all his legal heirs would be treated as joint tenants, consequently, it will not have any effect on the merits of the matter and moreover the order is interlocutary in nature does not decide the rights of any of the parties, consequently, the petition is not maintainable. In support his submissions, Sri Aftab Ahmad has relied upon a decision of the Apex Court in Suresh Kumar Kohli Vs. Rakesh Jain; AIR 2018 SC 2708.
Sri Mohd. Arif, learned Senior Counsel refuting the aforesaid submission states that the decision cited by learned counsel for the respondents is distinguished on two counts; that it relates to the Delhi Rent Control Act which has no applicability in the instant case as it arises out of the U.P. Act 13 of 1972. The other ground for distinguishing the aforesaid decision is that in the said case it was not known to the landlord who were the legal heirs, however, in the instant case, the petitioner in his written statement at the first occasion had disclosed the names of all the legal heirs and therefore this plea is not available with the respondents.
This Court has considered the rival submissions and also perused the material on record.
The facts which are undisputed are that the applicant who had filed the release application is the private respondent no. 2 herein is the owner-landlord. It is also not disputed that Sri Moinudeen was the erstwhile tenant. Upon his death, the rights of tenancy would devolve on his legal heirs. There is also no dispute to the fact that in terms of Section 3 (a) of the U.P. Act 13 of 1972 which defines the word 'tenant' in so far as the commercial premises is concerned includes all his legal heirs.
Another fact which is not disputed that amongst the seven names given by the petitioner as the legal heirs of Moinudeen, three are already on record.
In the aforesaid backdrop the legal proposition that emerges is that upon the death of the original tenant, his legal heirs would inherit the tenancy as joint tenants and the occupation of one is occupation of all.
The decision of the Apex Court in Suresh Kumar Kohli (supra) notices the aforesaid proposition and paragraph 20 of the said decision is reproduced as under:-
"20. We are of the view that in the light of H.C. Pandey (AIR 1989 SC 1470) (supra), the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenant is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint Tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the Tenants on this count must fail."
Though, the said decision of the Apex Court emerges from the Delhi Rent Control Act but the fact remains that the legal propostion still remains the same and the effect that the heirs of Late Moinudeen would be joint tenants and the occupation of one amounts to occupation of all, hence, where the other heirs have not come forward to to get themselves impleaded it is not necessary for the Prescribed Authority to have allowed the application at the behest of the petitioner herein who was already impleaded and was in the capacity of joint tenants.
In view of the aforesaid, this Court is not inclined to interfere in the impugned order which is interlocutory in nature and does not decide nor affect the merits of the case or the rights of the parties and leaving the issue of non-joinder of the parties to be considered by the Prescribed Authority on its own merits at the time of final hearing. This Court is not inclined to entertain the aforesaid petition. Accordingly, this petition has no merit and is accordingly dismissed.
Order Date :- 27.9.2023 Asheesh