Allahabad High Court
Kishore Seth vs Satish Chandra Nigam And Ors. on 24 March, 2005
Equivalent citations: 2005(3)AWC2480
Author: Mukteshwar Prasad
Bench: Mukteshwar Prasad
JUDGMENT Mukteshwar Prasad, J.
1. This is tenant's petition under Article 226 of the Constitution of India. The petitioner has prayed for issuing a writ of certiorari quashing the order dated 12.9.2002, passed by the respondent No. 4 in Rent Appeal No. 27 of 2002 (Annexure-1) and judgment and order dated 3.2.2001, passed by the respondent No. 5 in Rent Case No. 45 of 2000 (Annexure- 2 to the writ petition.
2. Counter and rejoinder- affidavits have been exchanged between the parties and are on record.
3. With the consent of the learned counsel for the parties, this petition is being disposed of finally at this stage.
4. The dispute relates to House No. 18/41-42 Kursawan, Kanpur, owned by respondent No. 1. Admittedly, respondent No. 1 let out the disputed house having three stories to Ram Das, father of the petitioner on a monthly rent of Rs. 200 excluding taxes. The landlord had one small room, latrine and bathroom on the ground floor and one room, kitchen and bathroom at first floor in his possession. The landlord was a teacher in a local intermediate college and had retired. The remaining portion of the house was in possession of original tenant Ram Das who expired and tenancy was inherited by his three sons Kishore Seth (petitioner), Om Prakash Seth and Ashok Seth. An application for release of a portion of the accommodation in possession of tenant was filed by the landlord under Section 21 (1) (a) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act') on the ground that accommodation in possession of the landlord was too short to accommodate his all members of family. It was also alleged that the petitioner had been living in Lal Bungala, Kanpur and was occupying a residential accommodation. It is noteworthy that no relief in respect of the portion in possession of the petitioner was sought in the application.
5. The respondent Nos. 2 and 3 filed a joint written statement admitting themselves to be the tenants of respondent No. 1, but the need of the landlord was not bona fide and application was liable to be dismissed. The parties filed their affidavits.
6. After having heard learned counsel for the parties, and considering the entire material on record, learned prescribed authority- found that accommodation in possession of the landlord was inadequate to meet his requirement and as such, the application was allowed.
7. The respondent Nos. 2 and 3 filed no appeal against the judgment and order passed by the prescribed authority.
8. The petitioner filed a miscellaneous appeal in the Court of District Judge, Kanpur Nagar along with an application for condonation of delay in filing the appeal. The appellate court rejected the application for condonation of delay and appeal was dismissed on the ground that it was barred by time.
9. A Writ Petition No. 7242 of 2002 was filed by the petitioner in this Court, which was allowed on 20.2.2002 and appellate authority was directed to decide the appeal on merits treating the same to be within time.
10. The petitioner filed Rent Appeal No. 27 of 2002, which was dismissed on 12.9.2002 and order passed by the prescribed authority was affirmed. Hence this petition.
11. I have heard Sri Kushal Kant, learned counsel for the tenant- petitioner and Sri S. D. Singh, learned counsel for landlord-respondent No. 1. I have also gone through the material on record carefully.
12. Learned counsel for the petitioner has assailed the impugned order mainly on the grounds that admittedly, late Ram Das Seth was the original tenant in the premises in dispute and after his death, his three sons, Kishore Seth (petitioner), Om Prakash Seth and Ashok Seth inherited the tenancy. The petitioner was admittedly occupying some portion of the premises on the ground floor as well on the first floor. However, he was not made a party in the release application along with his two brothers and the prescribed authority allowed the application for release and committed error of law. According to the learned counsel for the petitioner, the impugned judgment passed by the appellate court under Section 22 of the Act is not binding on the petitioner on the ground that he was not a party to the original proceedings and impugned judgment is liable to be set aside. According to him, the appellate court also committed error of law in dismissing the appeal of the petitioner on the ground that the order passed was binding upon the petitioner also being one of the joint tenants.
13. Reliance was placed by learned counsel for the petitioner on two decisions of Supreme Court in H. C. Pandey v. G. C. Paul, , Textile Association (India) Bombay Unit v. Balmohan Gopal Kurup and another, and a decision of this Court in Rajendra Kumar Nigam v. District Judge, Kanpur Nagar, 2001 (2) AWC 1544 : 2001 All CJ 877.
14. On the other hand, learned counsel for the respondent has supported the impugned judgment and contended with vehemence that it is well-settled now that after death of the original tenant, his legal representatives inherited the tenancy as joint tenants and not as tenants-in common. The tenancy rights devolved on the heirs of deceased tenant. It is single tenancy, which devolves on the heirs. There is no division of premises or of rent payable and that is the position as between the landlord and heirs of deceased tenant. It was, therefore, submitted that all the three sons of late Ram Das became joint tenants of the accommodation in dispute after death of their father and notice to one of the joint tenants was a valid notice and similarly the impleadment of one or two of them in the application for release was sufficient and order passed by the prescribed authority which was subsequently confirmed by the appellate court also, is binding on the petitioner also. In support of his contention, he placed reliance on a decision of Supreme Court in Harish Tandon v. Additional District Judge, Allahabad, . It was also submitted on behalf of respondent that landlord sought part release of the premises in tenancy, which is permissible under the law and the portion in possession of the petitioner has not been released and as such, the petitioner has, in fact, no grievance.
15. Reliance has been placed by the learned counsel for respondent on the following decisions :
(1) Ashok Chintaman Juker v. Kishore Plandurang Manti, 2001 AIR SCW 2251. (2) Sandeep Bhatia v. Vth Additional District Judge, Bijnor and others, (2000) 2 ARC 474. (3) Prabhakar Gaur v. XIIIth Additional District Judge, Kanpur Nagar and others, (2002) 2 ARC 467. (3) Vivek Kumar v. P. C. Srivastava, (2003) 2 JCLR 903.
16. I have considered the rival submissions made on behalf of the parties and have gone through all the decisions relied upon by them. It is admitted between the parties that late Ram Das, father of the petitioner, was original tenant and after his death, petitioner and his two brothers inherited the tenancy and they became joint-tenants. It is now wellsettled that heirs to the original tenant succeed single tenancy and in such cases, there is neither division of the premises in dispute nor the rent payable there for. The position in this regard is well-settled by several decisions of Supreme Court including decision in Harish Tandon case (supra) and H. C. Pandey case (supra). The contention of learned counsel for the landlord-respondent finds full support from two judgments of this Court also in Sandeep Bhatia case (supra) and Prabhakar Gaur case (supra). I further find that it was clearly held in Sandeep Bhatia case that notice to one of the joint tenants was sufficient and suit against one of the joint tenants was also good. In Prabhakar Gaur case, it was clearly held that if the release application was filed against one of the joint tenants and shop is released, other joint tenants would have no independent right to claim tenancy in the shop.
17. Learned counsel for the petitioner has drawn my attention to the judgment of the Apex Court in Textile Association case (supra) in which ex parte decree was set aside on the ground that the respondent was not impleaded as party to the suit. It may be mentioned that Apex Court took into consideration Textiles Association case in Ashok Chintarman Juker case (supra) (para 15).
18. For the aforesaid reasons. I find that the order of release passed in favour of the landlord-respondent became final, not only against respondent Nos. 2 and 3 but it became final against the petitioner also. In my opinion, the appeal filed under Section 22 of the Act, was nothing but an abuse of process of Court. He has got no right to get the release order re-opened, which became final. I see no ground to interfere with the judgment impugned in this petition.
19. In the result, the petition fails and is hereby dismissed. However, there will be no order as to costs.
20. The stay order dated 19.9.2002, passed by this Court is vacated.