Smt. Pushpa Agrawal vs Omprakash Agrawal and Others

Hon''ble Mr. N.K. Mody, J.—Arguments heard finally. Order dictated in Open Court.

Being aggrieved by the order dated 25-1-2011 passed by I Civil Judge Class II, Gwalior in Civil Suit No. 45-A/2006 whereby application filed by the petitioner under Order I Rule 10, CPC was dismissed, present petition has been filed.

Short facts of the case are that eviction suit was filed by the respondent No. 1 against respondent Nos. 2 and 3 on the grounds u/s 12(1)(a) and (f) of the M.P. Accommodation Control Act alleging that Madanlal Bansal was tenant of respondent No. 1. The suit was contested by the respondent Nos. 2 and 3. During pendency of suit, an application was filed by the petitioner under Order I Rule 10, CPC, wherein it was prayed that being legal representative of deceased/Madanlal Bansal petitioner is also necessary party, therefore, petitioner be added in the array of defendants. The application was opposed and the same was dismissed against which the present petition has been filed.

Learned Counsel for the petitioner submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that since petitioner is the legal representative of deceased/Madanlal Bansal, therefore, petitioner was the necessary party. Learned Counsel placed reliance on a decision in the matter of Kumar Jagdish Chandra Sinha and others Vs. Mrs. Eileen K. Patricia D''Rozarie, wherein Hon''ble Apex Court has held that undisputedly a contractual tenant has an estate or interest in the subject-matter of the tenancy and heritability is an incidence of such tenancy. In the absence of any provision in the Act to the contrary, all the heirs of such a tenant would, therefore, on his death, step in his shoes. The same could not, however, be said about the statutory tenant in view of the law down in Anand Nivas (Private) Ltd. Vs. Anandji Kalyanji Pedhi and Others, , as quoted above and the plain and unambiguous language of Section 2 (h), as it then stood. In other words, the heirs of a statutory tenant had no right to the tenancy as such a right was personal and the Act did not make any provision regarding the manner in which such right was to devolve. Further reliance is placed on a decision in the matter of Textile Association (India) Bombay Unit Vs. Balmohan Gopal Kurup and another, wherein suit filed after the death of the main tenant without impleading respondent No. 1, the son and the suit was decreed exparte and possession was obtained by the landlord Hon''ble Apex Court has held that respondent son was as much a tenant as his mother and brother, hence exparte decree was set aside and possession was restored. On the basis of aforesaid position of law, it is submitted that petition filed by the petitioner be allowed and the impugned order passed by the learned Court below be set aside.

Learned Counsel for the respondent No. 1 submits that petitioner is not a necessary party. It is submitted that petitioner was not in occupation of suit accommodation. Learned Counsel placed reliance on a decision in the matter of Shambhudayal Vs. Suleman, wherein this Court has held that death of tenant heirs inheriting tenancy as tenants in common are joint tenants quo landlord. It was further held that service of notice or one heir sufficient to determine entire tenancy against such person who was in actual possession maintainable without other being made parties. It is submitted that on the basis of aforesaid position of law the petition filed by the petitioner has no substance and the same be dismissed.

After hearing Counsel for both the parties at length and keeping in view the fact that before filing of the suit itself Madanlal Bansal was died and petitioner is also one of the legal representative of deceased Madanlal Bansal, therefore, even if, petitioner is not in possession of the suit property, then too, the petitioner was the proper party. In view of this, petition filed by the petitioner is allowed and the impugned order passed learned Court below is set aside and respondent No. 1 is directed to implead the petitioner as defendant in the array of defendants. Petitioner is permitted to file the written statement and if necessary cross-examine the witnesses examined by the respondent No. 1 only on the ground that petitioner has been impleaded as party. It is made clear that petitioner is not allowed to delay the process in any manner. Learned Court below is directed to conclude the trial within a period of three months. With the aforesaid observations, petition stands disposed of. C.C. as per rules.