Ajay Kumar & Anr. vs Arif Mustafa Khan & Ors.

This petition has been ''filed for setting aside the judgment and order dated 1272007 passed by the learned Additional District Judge, Court No. 2, Bulandshahr in Misc. Case No. 34 of 2007 by which the application filed by the petitioners under Rule 32 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as the ''Rules'') was rejected.

The landlord Amir Mustafa Khan had filed an application under Section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the ''Act'') for release of the shop in dispute as the shop was bona fide required for establishing his son Mustafa Khan who wanted to do business as he was unemployed. It was stated that the shop had been given on rent to Radhey Kishan who died in 1990 after which his two sons, Ram Autar and Hari Mohan, who had been arrayed as defendants started doing business from the shop in dispute. Subsequently, the daughters of Radhey Kishan were also impleaded as defendant Nos. 3 to 5. The Prescribed Authority by the order dated 6111995 rejected the application.

Feeling aggrieved, Amir Mustafa Khan filed Rent Control Appeal No. 23 of 1995 under Section 22 of the Act. During the pendency of the Appeal, Amir Mustafa Khan died and his heirs and legal representatives were brought on record as appellant Nos. 1/1 to 1/10. They have been arrayed as respondents 1st set in the present petition. During the pendency of the Appeal Ram Autar (respondent No. 1) also died and he was substituted by the heirs and legal representatives who were arrayed as respondent Nos. 1/1 to 1/5. Respondent Nos. 1/1 to 1/5 and the other respondent Nos. 2, 3, 4 and 5 in the Appeal have been arrayed as respondents IInd set in this petition.

The Appeal was ultimately allowed by the judgment and order dated 29102004. It was held that the need of the landlord was bona fide and genuine as he had no other shop except the disputed one from where his son could be established in business. It was also held that the tenants, on the other hand, had got a shop at New Mandi being shop No. 13C from where they were carrying on food grains business on Commission Agency and the need of the disputed shop had come to an end and they will not suffer greater .hardship if they were asked to vacate. Respondent Nos. 1/1 to 1/5 and Hari Mohan filed Writ Petition No. 47336 of 2004 for quashing the aforesaid order passed by the Appellate Court. The writ petition was dismissed by a detailed judgment and order dated 1932007 and the relevant portion of the judgment is quoted below:

"A landlord cannot be compelled to carry on business in rented premises. While considering the question of bona fide need of the landlord, the Appellate Court has rightly observed in this regard that it is not the business of tenant to point out as to where the landlord should open a shop.

The findings recorded by the Appellate Court on the question of bona fide need is well considered finding based on the material on record and it cannot be said that the said finding is vitiated or has been recorded without taking into consideration the relevant material on record. The observation made by the Prescribed Authority that the landlord has got numerous houses and shops is perverse and is based of misreading of evidence. Unless, the finding of bona fide need is vitiated it cannot be interfered within a writ petition.

The Appellate Court has rightly taken into account that the petitionertenants admittedly have got a shop at New Mandi wherein they are carrying on business while the landlord has got none. They have failed to take any step to get an alternative accommodation and as such finding of comparative hardship that the landlord shall suffer greater hardship, in case release application is allowed, has been rightly recorded against the tenantpetitioners.

Time to vacate up to 31st July 2007 is granted subject to the condition that the petitioners shall file an undertaking on affidavit before the Prescribed Authority that they will vacate the disputed premises on or before that date and will hand over its vacant, peaceful possession without creating a third party interest, to the respondentslandlord on or before 3172007. The petitioner shall also deposit the entire arrears of rent for the period upto 31st July 2007 within a period of one month from today. In case of default of compliance of either of the conditions stipulated above, the time granted by the Court shall stand vacated and it shall be open to the landlords to execute the release order forthwith.

The writ petition is dismissed with cost of Rs. 2000/, payable by the petitioners to the contesting respondentlandlords."

After the dismissal of the aforesaid writ petition by the judgment and order dated 1932007, the present petitioners filed an application on 442007 under Rule 32 of the Rules for setting aside the ex parte judgment and order dated 29102004. The said application which was registered as Misc. Case No. 34 of 2007 was accompanied by an application under Section 5 of the Limitation Act. It was stated in the application filed under Rule 32 of the Rules that the applicant No. 1 was the son of late Ram Autar but after the death of Ram Autar, the other five sons had been substituted in the Appeal but applicant No. 1 Ajay Kumar and the widow Omwati had not been substituted in the Appeal. It was, therefore, stated that the judgment and order was ex parte and, therefore, deserved to be set aside. The application under Section 5 of the Limitation Act was allowed on 1272007 but Misc. Case No. 34 of 2007 was dismissed by a detailed separate order dated 1272007. This petition has been filed for setting aside the aforesaid order dated 1272007 passed by the learned Additional District Judge, Court No. 2, Bulandshahr in Misc. Case No. 34 of 2007. 6. Learned counsel for the petitioners Sri Some Narayan Mishra contended that it was incumbent upon the appellants to have substituted the petitioners also as heirs and legal representatives of the deceased respondent No. 1 Ram Autar since they were joint tenants and, therefore, the application filed by them under Order 32 of the Rules for setting aside the ex parte judgment and order dated 29102004 was liable to be allowed but the Court below committed an illegality in rejecting the application. In support of his contention that the petitioners were joint tenants, he placed reliance upon the decision of this Court in Gauri Shankar Gupta v. Anita Mishra and another, 2004 (1) ARC 200, Kamla Prasad and others v. The District Judge, Allahabad and others, 2006 (1) ARC 753 : (2006 (3) ALJ 529. Kishore Seth v. Satish Chandra Nigam and others 2005 (2) ARC 58, and upon the decisions of the Supreme Court in Textile Association (India) Bombay Unit v. Bal Mohan Gopal Kurup and others (1990) 4 SCC 700 : (AIR 1990 SC 2053). Harish Tandon v. Additional District Magistrate, Allahabad, U. P. and others, (1995) 1 SCC 537 : (1995 All LJ 350) and Ashok Chintaman Juker and others v. Kishore Pandurang Mantri and others, (2001) 5 SCC 1: (AIR 2001 SC 2251).He further contended that the landlord deliberately did not substitute them also as heirs of deceased Ram Autar, and that the other heirs of deceased Ram Autar also did not intimate the Court about this fact since they had a dispute with the applicants and in support of his contention, he has placed reliance upon the decision of the Supreme Court in Shkuntala Vasant Pahadi and others v. Purushottam Vasant Pethe and others (2007)3, SCC 123.

Sri Satish Mandhyan, learned counsel appearing for the respondentsIst set, however, submitted that after the death of Ram Autar the tenancy rights devolved on the heirs of the deceased tenant jointly and, therefore, nonimpleadment of the petitioners was of no effect as an order passed against one of the joint tenant is binding upon the other joint tenants. In support of his contention, he has placed reliance upon the decision of the Supreme Court in Harish Tandon : (1995 All LJ 350)(supra) and upon the decisions of this Court in Shikhar Chandra v. Additional District Judge/Special Judge (E.G. Act), Jhansi and others 2005 (3) ARC, 437 and Smt. Usha Rani v. Prescribed Authority, Roorkee and others, 1998 (34) ALR 202: (1999 All LJ 1492).He further submitted that the plea of collusion taken up by the petitioners in their application cannot be accepted as not only it was absolutely vague but was also not supported by any evidence and in support of his contention, he has placed reliance upon the decision of the Supreme Court in Shkuntala Vasant Pahadi and others (supra). He also emphasised that the application under Rule 32 of the Rules was filed by the petitioners immediately after the dismissal of the writ petition filed by the other joint tenants.

The first question that is required to be examined in this petition is whether upon the death of Ram Autar, who had been impleaded as defendant No. 1 in the release application, his heirs inherit the tenancy as joint tenants and whether the order is binding on the joint tenants who had not been impleaded.

As noticed above, the landlord Amir Mustafa Khan had let out the shop to Radhey Kishan in 1990 and upon his death, his two sons Ram Autar and Hari Mohan did the business from this shop. These two sons Ram Autar and Hari Mohan had been impleaded as defendant Nos. 1 and 2 in the release application. Subsequently, the three daughters of Radhey Kishan were also impleaded as defendant Nos. 3 to 5 in the said application. The defendants contested the release application and it was rejected by the Prescribed Authority. The landlord Arif Mustafa Khan then filed an Appeal under Section 22 of the Act. During the pendency of the Appeal, Amir Mustafa Khan died and was substituted by his heirs and legal representatives who have been arrayed as respondents 1st set in the present petition. During the pendency of the Appeal, respondent No. 1 Ram Autar also died. His five sons were substituted as heirs and legal representatives. The Appeal was allowed and the writ petition that had been filed in this Court by Hari Mohan and the five sons of Ram Autar was dismissed by a detailed judgment and order dated 1932007. It is after the dismissal of the said writ petition that an application under Rule 32 of the Rules was filed by the sixth son and widow of Ram Autar. It was stated that the applicants had no knowledge of the Rent Appeal and for the first time on 2632007/2932007 they acquired knowledge of the Appeal when Arif Mustafa gave threats.

Accordingly, the application was filed on 442007 for setting aside the judgment and order dated 29102004. In paragraph 6 of the application, it was stated that the applicants were also joint tenants but the respondent 1st set (the heirs of the landlord Amir Mustafa Khan) did not deliberately substitute them and the other heirs of Ram Autar also did not bring this fact to the notice of the Court on account of some dispute which they had with them.

A three Bench decision of the Supreme Court in Harish Tandon : (1995 All LJ 350) (supra) resolved the dispute between the earlier two Bench decisions in Mohd. Azeem v. District Judge, Aligarh and others, (1985) 2 SCC 550: (1985 All LJ 643) and H. C. Pandey v. G. C. Paul (1989) 3 SCC 77 : (1989 All LJ 692)and observed that the heirs of the deceased tenant succeed to the tenancy as joint tenants. In Mohd. Azeem (supra) the Supreme Court had observed that the definition of tenant in the Act did not warrant the view that all the heirs will become a body of tenants to give rise to the concept of joint tenancy. In H. C. Pandey (supra), the Supreme Court observed that the heirs succeed to the tenancy as joint tenants. It is on account of the aforesaid conflict between the two judgments that a Bench of three Judges was constituted. The Supreme Court elaborately examined the provisions of the Act and concluded:

"it was rightly said by this Court that after the death of the original tenant, subject to any provision to the contrary, the tenancy rights devolved on the heirs of the deceased tenants jointly. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor and the heirs succeed to the tenancy as joint tenant."

In Kishore Seth (supra) relied upon by the learned counsel for the respondents, this Court observed:

"I have considered the rival submissions made on behalf of the parties and gave 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 twobrothers inherited the tenancy and they became joint tenants. It is now well settled 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 therefor. 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)."

In Shikhar Chandra (supra) this Court again relied upon the decision of the Supreme Court in Harish Tandon (supra) and observed that orders passed against a joint tenant is binding upon the other joint tenants:

"Lower Appellate Court also based its judgment on the fact that all the heirs of tenant who had died had not been impleaded. In view of Supreme Court authority reported in Harish Tandon v. Addl. District Magistrate, 1995 SCFBRC 123 :1995 (1) ARC 22 : (1995 All LJ 350) and A. C. Juker v. K. P. Mantri, AIR 2001 SC 2251, all the heirs of the deceased tenant inherit the tenancy as joint tenants and orders passed against one of the joint tenants is binding upon the other joint tenants."

In Smt. Usha Rani: (1999 All LJ 1492) (supra), this Court also made similar observations:

.........The law is now well settled that after the death of original tenant, his heirs/legal representatives become only joint tenants and not tenantincommon. In this connection reference may be had to the case of Harish Tandon v. Addl. District Judge, Allahabad and others, 1995 (25) ALR 184 : (1995 All LJ 350)(SC) wherein it was held by the Apex Court that after the death of the tenant, his heirs/legal representatives become only joint tenants and they do not inherit the tenancy rights as tenantsincommon. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable. The heirs/legal representatives, therefore, succeed to the tenancy as joint tenants. The result is that any action of any of the joint tenants binds the others.

In the case of Mohd. Parvez and others v. VIIth Addl. Chief Metropolitan Magistrate/Prescribed Authority, Kanpur and others, 1996 (1) ARC 439 : (1996 All LJ 1169) it was held that there is a presumption that a joint tenant represents the interest of all other joint tenants. In Smt. Anju Sharma v. Suresh Chand Jain and others, 1993 (21) ALR 158 : (1993 All LJ 469) after the death of original tenant, suit for ejectment was filed against some of his heirs without impleading all the heirs. The decree for eviction was challenged by those who were not impleaded. Still in the circumstances it was held that the decree passed was binding on all the joint tenants, including those who were not impleaded. In the case of Sunil Kumar v. Special Judge, Jaunpur and others, 1994 (24) ALR 22: (1995 All LJ 1191) it was held that a person is not entitled for impleadment and contest the matter in appeal, if the matter was fully represented by some of the other jointtenants before the trial court."(Emphasis supplied)*

It is, therefore, clear that after the death of the original tenant, the tenancy rights devolve on the heirs jointly and any action of the joint tenant(s) binds the other joint tenant(s) even if they have not been imp leaded. There is a presumption in law that a joint tenant represents the interest of all the other joint tenant(s) and a decree against a joint tenant would be binding on all the joint tenants even if they have not been impleaded.

(*Not found in certified copy.....Ed.)

Learned counsel for the petitioners had, however, placed reliance upon the decision of this Court in Gauri Shankar Gupta (supra) wherein this Court observed:

"Under the general law after the death of the tenant all his heirs inherit the tenancy. Even under U. P. Act No. 13 of 1992, in case of nonresidential building all the heirs of the tenant inherit the tenancy by virtue of definition of tenant given under Section 3(a) of the Act. Even though the Supreme Court in, AIR 1995 SC 676: (1995 All LJ 350) and AIR 2001 SC 2251, has held that after the death of the tenant all his heirs inherit the tenancy jointly and decree passed against one or some of them is binding on nonimpleaded joint tenants also, however, this doctrine cannot be pressed in to service when during the pendency of the suit a person claiming to be the joint tenant applies for impleadment. In AIR 2001 SC 2251 (supra) itself an earlier authority of three Hon''ble Judges reported in, AIR 1990 SC 2053, has been referred to in which a decree for eviction was setaside on the application of nonimpleaded joint tenant." In the aforesaid decision, this Court observed that under the general law and even under the Act after the death of the tenant all his heirs inherit the tenancy jointly in case of nonresidential building and the decree passed against one or some of them is binding on the nonimpleaded joint tenants also but this doctrine cannot be pressed into the service when during the pendency of the suit a joint tenant applies for impleadment. This decision is, therefore, of no benefit to the petitioners. The decision in the case of Textile Association (India) Bombay Unit (supra) was taken into consideration by the Supreme Court in Ashok Chintaman Juker and others (supra) and even otherwise did not relate to the definition of a tenant in case of nonresidential building under the Act which definition was elaborately examined by the Supreme Court in the case of Harish Tandon (supra).

In the present case, out of the two sons and three daughters of Radha Kishan who was the original tenant, one son and four daughters are alive and were the respondents in the Appeal. Ram Autar respondent No. 1 had died but the five sons of Ram Autar had been substituted. The decree passed in the Appeal, in view of the aforesaid discussion, is, therefore, binding upon the petitioners.

The next contention of the learned counsel for the petitioners is that the landlord had deliberately not substituted the sixth son and widow of Ram Autar and in view of the dispute between the petitioners and the remaining heirs of Hari Mohan also did not point out this fact to the Appellate Court.

It was for the petitioners to have proved this fact by leading evidence because mere making of an averment does not suffice. The petitioners, however, did not lead any evidence before the Appellate Court in support of the averments made in paragraph 6 of the application filed by them under Rule 32 of the Rules and indeed the Appellate Court has also recorded a categorical finding that the applicants could not prove this fact. Even before this Court, except for this bald statement, learned counsel for the petitioners has not placed any material which may support the aforesaid contention. The Supreme Court in Shkuntala Vasant Pahadi (supra) clearly observed that the heir of a tenant who has not been substituted has to prove collusion or mala fide in order to succeed. The same view was expressed by this Court in Kamla Prasad and others, (2006 (3) ALJ 529) (supra) and Mohammad Parvez and others (1996 All LJ 1169) (supra). In Smt. Usha Rani, (199 All LJ 1492)(supra) this Court observed that the joint tenants who had been impleaded in the release application had contested the matter upto this Court and lost and had also taken time to vacate the premises in question on their filing an undertaking and, therefore, the application filed for restoration by the other joint tenants for setting aside the order had been moved mala fide simply with a view to deny the landlord his right to obtain possession of the premises. The relevant observation is quoted below:

"In view of the above settled position of law and specially having regard to the fact that the other joint tenants who were impleaded along with the petitioner in the release application had contested the matter upto this Court and lost from every Court and also obtained an order from this Court for time to vacate the premises in question on their filing an undertaking, the present application for restoration appears to have been moved mala fide simply with a view to deny the landlord of his right to obtain possession of the premises in question, which incidentally happens to be a shop. There is no allegation that other joint tenants who had contested the matter, had colluded with the landlord. The present application for restoration per se appears to be an abuse of process of Court."

In the present case, as noticed above, the other joint tenants had contested the Appeal and had also filed a writ petition in this Court raising all possible objections. This Court had elaborately dealt with the issues raised with regard to bona fide need and comparative hardship and had also granted time to the petitioners therein to vacate the disputed premises. This petition was dismissed on 1932007 and immediately thereafter on 442007, the present petitioners filed the application under Rule 32 of the Rules for setting aside the judgment and order dated 29102004 passed by the Appellate Court. It is, therefore, apparent that the application under Rule 32 of the Rules had been moved with a mala fide purpose for a fresh hearing of the Appeal in order to deny the landlord the fruits of the decree. There is no infirmity in the finding recorded by the Court below. The plea about collusion, therefore, cannot be accepted.

Thus, none of the submissions advanced by the learned counsel for the petitioners have any force. The writ petition is, accordingly, dismissed. Interim order stands vacated.

After the judgment had been pronounced, Sri Some Narayan Mishra, learned counsel appearing for the petitioners stated that some time may be given to the petitioners to handover peaceful possession of the shop to the landlord.

In view of the aforesaid, the petitioners shall not be ejected from the premises in dispute for a period of one month from today provided the petitioners give the following undertaking before the Court below within one week from today :

That the petitioner shall deposit the amount awarded within a period of two weeks from today before the Judge Small Cause Courts in case it has already not been deposited.

That the petitioners shall pay damages of Rs. 500/ to the landlord within two weeks from today.

That the petitioners shall not induct any other person in the shop.

That the petitioners shall handover peaceful possession of the shop to the landlord on or before the expiry of one month.

It is made clear that in the event the petitioners fail to give the undertaking within the aforesaid period or fail to comply with any of the terms of the undertaking, then in that case, it will be open to the landlord to get the decree executed.