Harish Chand and Others vs Kirpa Ram

D.V. Sehgal, J.—The facts giving rise to the present revision petition have been set out elaborately in the Full Bench judgment dated 19.12.1985. (Reported as (1986) 89 P.L.R. 164) and need not be restated here All that is required to be added is that on the death of Om Parkash tenant, the application for brining on record his legal representatives which was filed before the Appellate Authority, Faridabad was by two sets of the applicants who are the Petitioners herein. Petitioners No. 4 to 6 are the son, nephew and widow of Babu Ram brother of the deceased. The claim that they along with the deceased constituted partnership styled as Bhagwan Dass, Om Parkash and their firm was the tenant of the shop in dispute. Their contention was that on the death of Om Parkash, they as the remaining partners constitute the partnership and therefore, are the tenants in the premises. This claim was repelled by the learned Appellate Authority. It rightly observed that Om Parkash was a tenant in his individual capacity and even if in the course of tenancy, he inducted any one as a partner in the business, the firm thus constituted was not the tenant. The learned Counsel for the Petitioners has advisedly not pressed the claim on behalf of Petitioners No. 4 to 6 for bringing them on record as the Appellants in place of Om Parkash in their capacity as partners with him. This claim, therefore, need not be adjudicated.

In the Full Bench judgment it has been held that the conditions and order of inheritance of tenants which find place in Section 2(h) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the Haryana Act) read with schedule appended thereto, are limited in their application to a residential building. The tenancy in respect of a ''non-residential building'', in the event of the death of the tenant, devolves on the heirs of the deceased tenant in accordance with the general law of succession applicable to the tenant and the heirs who step into the shoes of the deceased-tenant and they continue to enjoy the protection afforded by the Haryana Act. In view of the law thus laid down, the other set of applicants, that is, Petitioners No. l to 3 who are sons of the deceased-tenant and have the right to inherit his estate, enjoy the protection afforded by the Haryana Act and are, therefore, entitled to be brought on the record as his legal representatives.

The learned Counsel for the Respondent raised before me the following two points:-

(i) That only an heir who has been carrying on business with the deceased-tenant in the shop in dispute can be brought on the record as his legal representative and not the remaining heirs;

(ii) That the heir who claims that he has been carrying on business with the deceased-tenant has to prove it by leading evidence before he, is allowed to be brought on record as legal representative.

In my view, none of the above two contentions is tenable in view of the law laid down in the judgment aforementioned to the effect that in respect of a ''non-residential building, in the event of the death of the tenant, tenancy devolves on the heirs of the deceased-tenant in accordance with the general law of succession and not in accordance with Section 2(h) of the Haryana Act, read with the schedule appended thereto.

Consequently, this revision petition is allowed. The judgment dated 22.9.1983 of the learned Appellate Authority, Faridabad is set aside. The appeal filed by Om Parkash tenant which was pending before it is restored and Petitioners No. 1 to 3. namely Harish Chander, Pardip Kumar and Ashok Kumar sons of Om Parkash (deceased) are allowed to be brought on record as his legal representatives to prosecute the same. The appeal shall now be decided by it on merits in accordance with law. I, however, leave the parties to bear their own costs.

The parties through their counsel are directed to appear before the Appellate Authority on 23rd February, 1987.