Shree Vrajnathji Shree Vrajray Maharajshree vs Pratapbhai Babulal Vyas

Gita Gopi, J

Shree Vrajrayjee Valabhiya Vaishnav Haveli and Asarva Bethak Trust and its trustees are the petitioners before this Court. Petitioner no.2 of the suit died on 16.7.2013. Being a trustee, the cause title required no amendment as heirs of the trustees would not be a necessary and proper party to the suit.

The petitioner-trust through the trustee had stated that immovable property situated in Asara area in city of Ahmedabad having municipal census no.1083 and its having different parts of 1083. The petitioner – trust has given 1083 to its tenant Keshavlal Shankarlal Patel and respondents no.2 to 9 are the heirs of the deceased Keshavlal Patel, on his demise. Respondent no.2 had parted with possession of tenanted premises in favour of Umiyashankar Ambalal Bhatt & Co. who also parted with other portion of the tenanted premises in favour of a proprietary concern namely Arma Traders, Gayatri Traders and had also parted with the possession of the tenanted property in question in favour of Prataplal Babulal Vyas who is joined as respondent no.1 in the matter.

Mr. M.J. Shelat, learned advocate for the petitioners submitted that on the death of the original tenant Keshavlal, the question that would arise in HRP Suit no.6 of 2000 as to the heirs of the tenant to be decided under Section 5(11)(c) of the Gujarat Rents, Hotel and Lodging House Rates Control Act and according to the provision in relation to premises let for business, trade or storage, any member of tenant’s family carrying on business, trade or storage with the tenant in the said premises at the time of the death of the tenant as may continue, after his death, to carry on the business, trade or storage as the case may be in the said premises and as may be decided in default of agreement by the court and thus, Mr. Shelat submitted that only the heirs of the original tenant would be the family members and no other person. Mr. Shelat submitted that respondent no.1 herein had given an application Exh.49 on 29.6.2016 to join him in the matter as an heir and states that such application was moved in Misc. Application no.30 of 2009 which was application for ascertainment of the heir of the original tenant which would fall under Section 5(11)(C) of the Rent Act and accordingly, a prayer was made to let the plaintiff make suitable amendment in the cause title.

Mr. Shelat submitted that the application Exh.49 by the third party was in the said application for Order 1 Rule 10(2) and Section 151 of the CPC and the learned Judge without considering the main application of the plaintiff had passed the order of joining Pratap Vyas as in the Civil Misc. Application no.30 of 2009 which was for making an inquiry about the heirs of the tenant who would be the family members of his premise. Mr. Shelat submitted that the applicant is not related to the original tenant nor is a family member and therefore, in Civil Misc. Application no.30 of 2009, he would not be a necessary and proper party and therefore, submitted that the petitioner’s application under Order 1 Rule 10 of the CPC was itself not maintainable and the order passed by the learned Judge though had observed that the main application was under Section 5(11)(c) of the Act had passed the order of joining the third party in the matter which itself erroneous on the face of the record.

The record suggests that the original legal heirs of the family members of the deceased tenant are on record and they themselves by filing a reply at Exh.52 had objected to the said application of the third party and inspite of that, the learned Judge has passed the order of joining third party in an application moved under Section 5(11)(c) of the Act. Mr. Shelat has also referred to the order dated 17.7.2023 passed in Special Civil Application no. 10664 of 2016, which was not entertained, where such order of the Small Causes Court in application below Exh.19 in Civil Misc. Application no.30 of 2009 came to be rejected having considered Section 5(11)(c) of the Act. The learned Judge has rightly refused to join the petitioners of that application in the proceedings since the petitioners were not the heirs as legal representatives of the deceased.

Though the order below Exh.19 dated 7.4.2016 was passed in Civil Misc. Application no.30 of 2009 by the court and the petitioners of that application were not permitted to be joined in the proceedings as were not considered as legal heirs under Section 5(11)(c) of the Act, the learned Judge should have considered the said order and the reasons given therein and therefore, ought not to have allowed the application Exh.49 in Civil Misc. Application no.30 of 2009. The learned Judge has erred in even interpreting the provision of Section 5(11)(c) of the Act where only the members of the tenant’s family can make a claim to be considered as tenant of the suit property if such member was carrying on business, trade or storage with the original tenant in the said premises at the time of the death. The order impugned is bad in law, erroneous and perverse. Hence, Special Civil Application is allowed and the order dated 19.6.2017 passed below Exh.49 in Civil Misc. Application no.30 of 2009 stands quashed and set aside.