Bishan Sarup vs Khushi Ram and Another

V.S. Aggarwal, J.—The present revision petition has been filed by Bishan Sarup, hereinafter described as "the petitioner" directed against the judgment of the learned Appellate Authority, Rohtak, dated 23.11.1981. By virtue of the impugned judgment, the Appellate Authority had set aside the order passed by the Rent Controller, Rohtak, and instead dismissed the petition for eviction.

The relevant facts are that the petitioner had filed an application for eviction against Jai Narain, predecessor-in-interest of the respondents. The said application for eviction had been filed on various grounds which are not relevant to be mentioned for disposal of the present revision petition. The petition was contested and on 12.8.1980 the learned Rent Controller had passed an order of eviction against the respondents. Aggrieved by the same, an appeal was filed by Khushi Ram, respondent No. 1. The Appellate Authority relying upon the decisions of this Court in the case of Ganpat Ladha Vs. Sashikant Vishnu Shinde, , and in the case of Om Parkash v. Smt. Kailash Wati and Ors., 1981 Rent Control Journal 143, held that Jai Narain was a statutory tenant. The rights of the tenancy were not heritable. The tenancy came to an end on the death of Jai Narain on 6.6.1978. Thus, the Rent Controller had no jurisdiction to pass the order of eviction. On this short ground the appeal was allowed and instead eviction application was dismissed. Hence, the present revision petition.

This question came up for consideration before the Supreme Court in the case of Damadilal and Others Vs. Parashram and Others, . The decision was under the M.P. Accommodation Control Act, 1961, but the Supreme Court was concerned as to whether the statutory tenancy would be heritable or not? The answer was in the affirmative. In paragraph 12 of the judgment, Supreme Court held as under:-

"... The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists. The incidents of such tenancy and a contractual tenancy must therefore be the same unless any provision of the Act conveyed a contrary intention. That under this Act such a tenant retains an interest in the premises, not merely a personal right of occupation, will also appear from Section 14 which contains provisions restricting the tenant''s power of subletting ..."

Thereupon, the conclusions were drawn as under: -

"The concept of statutory tenancy under the English Rent Acts and under the Indian statutes like the one we are concerned with in this appeal rests on different foundations. It must therefore be held that the predecessors-in-interest of the present respondents had a heritable interest in the premises and consequently the respondents had the right to prosecute the appeal in the High Court. Mr. Gupta''s first submission thus fails."

However, a different view was expressed in the case of Ganpat Ladha Vs. Sashikant Vishnu Shinde, . The Supreme Court was considering the same controversy while it arose under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. It was held that the provision applies only to residential premises and not to business premises. In other words, for business premises the conclusion was that the rights were not heritable. The decision so rendered was overruled by the Supreme Court in the case of Smt. Gian Devi Anand v. Jeevan Kumar and Ors., (1985) 87 P.L.R 143 (S.C). The Supreme Court while construing the provisions of the Delhi Rent Control Act, 1958, was directly concerned with the question as to whether the rights of a . statutory tenancy were heritable or not. The answer given by the Supreme Court was in the affirmative. In paragraph 36 of the judgment, Supreme Court returned the following findings:-

"Accordingly, we hold that if the Rent Act in question defines a tenant in substance to mean a tenant who continues to remain in possession even after the termination of the contractual tenancy till a decree for eviction against him is passed, the tenant even after the determination of the tenancy continues to have an estate or interest in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant....."

Not only this, the Supreme Court in the case of (1995) 111 (3) PLR 760 (SC) , was directly concerned with the controversy as to whether the statutory tenancy in a shop leaves any heritable right or not? The answer was in the affirmative. The Supreme Court while overruling the decision in the case of Daljit Singh v. Gurmukh Dass, 1981(2) RCR 246, held that such rights were heritable. In paragraph 6 of the judgment, following findings were arrived at:-

"There is no provision in the Haryana Act which excludes the heritability of the interest of the tenant in non-residential premises. The view of the Punjab and Haryana High Court in Daljit Singh v. Gurmukh Dass 1981(2) RC.R. 246 on which reliance has been placed by the District Judge, that under the Haryana Act only the statutory tenancy in respect of residential premises is heritable and the statutory tenancy in respect of, non-residential premises is not heritable, is, therefore, no longer good law in view of the decision of this Court in Gian Devi Anand case. On that view of the matter the appellant, being the son of Asha Ram, must be treated to have inherited the rights of Asha Ram as a statutory tenant in the shop and he could be evicted from the said premises only in accordance with the provisions of the Haryana Act. The suit which was filed by the respondent does not indicate that it was based on any of the grounds for eviction mentioned in the Haryana Act. The decree for possession passed in the said suit cannot, therefore, be upheld."

The answer, thus, is clearly provided by the decision of the Supreme Court and it, thus, follows that the rights of the tenancy were heritable. Keeping in view the said authoritative pronouncement, it must follow that the judgment of the Appeltate Authority cannot be sustained. It must be held that the tenancy rights were heritable and the petition for eviction could continue.

For these reasons, the revision petition is allowed and the impugned judgment is set aside. It is directed that the Appellate Authority will hear the parties and pass a fresh order on the merits of the matter. The parties are directed to appear before the learned Appellate Authority, Rohtak, on 17.8.1999.