Rajasthan High Court - Jaipur
Smt. Kanchan Devi And Ors. vs Akbar Khan And Ors. on 14 January, 1999
Equivalent citations: 1999(2)WLC60, 1999(1)WLN72
JUDGMENT Mohd. Yamin, J.
1. This revision petition has been preferred against the order of learned Civil Judge (JD) No. 6, Jodhpur dated 20.10.97 by which he dismissed the application of the petitioners under Order 7 Rule 11 CPC.
2. I have heard the learned Counsel for both the parties at length.
3. The controversy is very short. A civil suit for eviction was filed against the petitioners. Originally Shyamlal was the defendant who died during the pendency of the suit and his legal representatives were brought on record. After amendment of the plaint defendants submitted an application under Order 7 Rules 1 CPC that the legal representatives of the defendants were trespassers according to the amended plaint and, therefore, the suit should be dismissed. This application was dismissed by the impugned order. The controversy is whether after the death of original tenant his successors become trespassers and. consequently whether the suit filed under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred as 'the Act') would continue or the plaintiff has to file a separate suit under the general law for eviction of the trespassers.
4. Learned Counsel for the petitioners submitted that separate suit should be filed and the legal representatives who are not tenants cannot be given protection under the Act.
5. On the other hand learned Counsel for the respondents has vehemently opposed this contention.
6. According to the learned Counsel for the petitioners the word 'tenant' has been defined in Section 3 (vii) of the Act which is as allows-
Tenant" means--(a) the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act, and
(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 purpose, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family upto his death.
His contention is that the property in dispute was a commercial premises and the legal representative were not carrying on business with the deceased, therefore, they do not remain tenants and become trespassers.
7. I am afraid this argument cannot be accepted because a full bench judgment of Rajasthan High Court in Smt. Ranjeevani v. Narati Bai RLW 1991 (1) page 222, took care of such a situation. It has been held in the said citation that the surviving spouse, son and daughter are entitled to avail the protection of the Act without their being required to fulfil the conditions under Clause 3(vii)(b) of the said Act. When it is clearly laid down by this full bench judgment that the legal representatives of a deceased tenant are protected by this Act, the order of the learned Civil Judge (JD), No. 6 passed on 20.10.97 does not suffer from any infirmity. It does not call for any interference.
8. Consequently, the revision petition is hereby dismissed. No orders as to costs.