Devi Dayal and Another vs Surinder Mohan Sharma

N.K. Kapoor, J.—This revision is against the order of the appellate authority reversing the order of the Rent Controller and ordering eviction of the petitioner in terms of Section 13 of the Act.

The respondent-landlord filed an eviction application against Daya Chand @ Devi Dayal (now deceased) on the ground that he is in arrears of rent as well that the premises in dispute is required for his residence and for residence of his family members.

The respondent put in appearance, filed written statement controverting the various material averments made by the landlord in his petition.

On the pleading of the parties, following issues were framed:-

1) Whether there is a relationship of landlord and tenant between the parties? OPA.

2) Whether the tender of rent made by the respondent is valid? OPR.

3) Whether the petitioner requires the demised premises for his own residence? OPA.

4) Whether the petitioner is entitled to eviction of the respondent? OPA.

5) Relief.

Under issue No.1 it was held that respondent is the landlord of the premises in question and the present petitioner is occupying the same as tenant under him. Issue No.2 was decided against the landlord holding that arrears of rent as claimed alongwith the interest and cost as assessed by the Court was tendered by the tenant in Court on the first date of hearing and so there was nothing due against the tenant. Under Issue No.3 it was held that the landlord has failed to prove the element of need and so this issue was decided against the landlord. Issue No. 4 was also decided against the landlord. Resultantly, the application for eviction was dismissed.

Before the appellate authority challenge was made to the finding of the trial Court in respect of issue No. 3 i.e. whether the petitioner requires the demised premises for his own residence?''. The appellate authority re-examined the matter, found substance in the plea raised by the appellant and so reversed the finding of the Rent Controller. Resultantly, the appeal was accepted thereby directing the respondent to vacate the premises in dispute and hand over its vacant possession to the landlord within a period of two months from the date of order.

The revision petition was admitted on 11.12.1992 and the dispossession of the petitioner was stayed. During the pendency of the revision petition the petitioner expired. Respondent landlord filed an application under Order 22 Rule 1 read with Section 151 CPC for dismissing of the revision petition as having abated. In this application it was stated that the erstwhile tenant has not left behind any wife or children and so the right to continue the petition does not survive. It was further stated that the property is lying vacant and that one Kapoor Chand son of Shri Phagoo Mal who tried to take possession of the property has, however, been restrained from doing so by the order of the civil Court and since the landlord-applicant cannot take possession of the property in view of the stay order passed by this Court, thus prayed that the revision petition be dismissed having abated.

On notice issued by this Court, reply has been filed by Surinder Kumar Sayal, who claims himself to be Legal representative of deceased Devi Dayal on the basis of a registered will executed in his favour and has controverted the various averments made in the application filed by the landlord. He has stated that he has been already permitted to be brought on record vide order 26.4.1995 (subject) to all just exceptions) and so the question of abatment of revision petition does not arise and so the same merits dismissal. Since, no notice was issued while permitting the petitioner''s application to be brought on record as legal representatives of Devi Dayal it was thought appropriate to decide the revision petition finally and so the petition was ordered to be listed for final disposal.

The learned counsel for the petitioner-tenant argued that eviction of the tenant was ordered on account of the personal need which as per facts of the case is wholly an erroneous finding recorded by the lower appellate authority. According to the counsel, landlord is working with HMT, Pinjore and is a resident of Manimajra whereas the property in dispute is situated at Rajpura, district Patiala and thus the question of need of the landlord does not arise as Rajpura is a place almost 50 kms. away from Pinjore - a place where he works and so the finding of the appellate authority deserves to be set aside. On the ground of locus standi of the present petitioner to prosecute the revision petition the counsel argued that he has succeeded on the basis of a registered will and so has a right to prosecute the same. Otherwise too, he is one of the Class II heirs being sister''s son of the deceased tenant. Since it has been settled that the tenancy rights are heritable, petitioner being one of his heirs has a right to prosecute the revision petition and in case succeeds, to remain in occupation of the property on the same terms and conditions as applicable to the erstwhile tenant.

Learned counsel for the respondent on the other hand argued that there is ample evidence on record to suggest that the landlord bonafidely required the premises in dispute. All his relations are permanently residing at Rajpura. The landlord does not own or possess any other house in the urban area of Rajpura nor he has vacated any such house in this area. Infact, he intends permanently to reside at Rajpura and look after his ailing mother who has special affection with him and it is precisely for this reason that landlord purchased the property at Rajpura. Thus, this is not a case of mere wish rather it is the need of the landlord to occupy the residential accommodation in question. Even the plea of the person who has been permitted to be brought on record in place of deceased-tenant, of course, subject to all just exceptions that he has succeeded to the tenancy rights of the erstwhile tenant on the basis of the will is wholly misconceived. Admittedly, the tenant has died leaving behind neither widow nor an issue, male or female. Petitioner is thus not an heir in the accepted sense of the terms. The limited right which has been conferred upon such heirs of tenant of a statutory tenant to retain possession of the property is infact intended to protect those persons who infact had been residing with the deceased or looking after his business (in case of commercial building) and was never intended that total strangers could set up a claim based on a testamentary disposition-the will. This Court in Shankutla Sondhi v. Narinder Kumar Sharma 1990(8) PLR 690, held that tenancy right cannot be bequeathed in favour of a person who is not an heir. Moreover, in the present case the person who has set up a claim on the basis of a will is a resident of Nabha - a place far away from Rajpura and so in the context of the present case it cannot be inferred that he has a desire to occupy the same. Thus, for this reason too the revision petition deserves to be dismissed.

I have heard the learned counsel for the parties, perused the order of the Rent Controller as well as of the appellate authority. Broad facts have been briefly noticed. The controversy whether tenancy rights are heritable already stands settled by the apex Court in Damadilal and Others Vs. Parashram and Others, , wherein it has been held that even the tenancy rights of a statutory tenant are I heritable. Apex Court reconsidered the matter in Bhavarlal Labhchand Shah Vs. Kanaiyalal Nathalal Intawala, , construing the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, and held that the tenant of a non-residential premises continuing in occupation after the contractual period is over cannot bequeath his right of occupancy by will in favour of a person who was not a member of his family carrying on business at the time of his death. However, the Court left open the question whether the statutory tenancy which is personal to the tenant can be bequeathed at all under a will in favour of anybody. In the context of the present case Devi Dayal had a personal right to retain the possession of the tenanted premises and could only be evicted in terms of Section 13 of the Act. Members of his family who had been residing with him too were protected on account of the statutory provisions as well as the judicial pronouncements of the Courts. A beneficial construction has been placed upon the definition of a tenant so as to encompass within the definition of a tenant such persons who had been residing with him or helping him of carrying out such business activities and no further, Examined in the context of the present case Devi Dayal was residing at Rajpura whereas the person who has set up a claim to retain possession of the tenanted premises is neither a ''heir'' nor residing at Rajpura. Otherwise too, it has been amply proved on record that respondent-landlord does not own or possess any other residential accommodation at Rajpura where his family members are permanently residing and it is precisely for this reason that he thought of purchasing the property to settle permanently there. Thus, the landlord has been able to prima-facie prove his need to possess the premises in dispute. Order of the appellate authority based on appreciation of evidence is not vitiated in any manner. Resultantly, finding no merit in the revision petition the same is dismissed.

Parties shall bear their own costs.