Smt. Shameem vs Maszid Nikhattu Shah

Anjani Kumar Mishra, J.—Heard learned counsel for the petitioner and Shri J.P. Singh, who has filed caveat on behalf of the first respondent.

This petition under Article 227 of the Constitution of India arises out of a suit for arrears of rent, eviction and mesne profits filed by the first respondent, regarding shop no. 98/136, Bekanganj, Kanpur Nagar.

During the pendency of the suit, the tenant of the shop in question, namely Mohd. Ayyub died. An application was filed to bring on record his heirs namely his sons and unmarried daughters. This substitution was allowed.

An impleadment application was filed by the petitioners under Order 1, Rule 10 CPC for being impleaded as defendants in the suit. The petitioner - applicants are the married daughters of the deceased - tenant.

The impleadment application was rejected by the trial Court on 22.01.2016 and this order has been affirmed upon dismissal of the revision filed by the petitioners vide order dated 06.09.2016. It is these two orders dated 22.01.2016 and 06.09.2016, which are impugned in this petition.

The contention of learned counsel for the petitioner is that the impleadment application has wrongly been rejected. He submits that in view of Section 3(a) 2 of U.P. Act No. 13 of 1972 and since the accommodation in question is commercial, all the heirs of the deceased - tenant would be deemed to be tenants and, therefore, the applicants were also liable to be impleaded in the suit as defendants.

Reliance has been placed upon the judgment in the case of Rafiqa Begum v. Abdul Salam and 4 Ors, 2015 (3) ARC 637 in support of the contention raised.

Counsel appearing for the caveator - respondent has supported the impugned order.

He has submitted that the writ petition is devoid of merits and deserves summary dismissal.

I have considered the submissions made by learned counsel for the parties and have perused the record.

It would be relevant to reiterate that the instant petition arises out of a SCC suit. The accommodation in question, a shop is alleged to be Waqf property. Although the allegation that the property in question is a Waqf property has been denied in the written statement filed in the suit, yet this question is yet to be decided. In any case, the allegation in the suit is that the property in question Waqf property, the provisions of U.P. Act No. 13 of 1972 are not applicable to it.

The case of the petitioners is primarily based upon the definition of a tenant as contained in Section 3(a) 2 of U.P. Act No. 13 of 1972, which in the case of non - residential buildings includes all the heirs of deceased - tenant.

Since prima facie the provisions of U.P. Act No. 13 of 1972 are not attracted in the instant case, the reliance upon Section 3(a)2 is misconceived.

Even if the argument raised is accepted, the impugned order, which reject the impleadment application of the petitioners on the ground that they are married daughters of the deceased-tenant cannot be faulted with.

Section 3 (g) of U.P. Act No. 13 of 1972, defines the world ''family'' and provides that in relation to a landlord or tenant of a building, family means the spouse, male lineal descendants, parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her.

Even this definition of a ''family'' does not, include a married daughter, which the petitioners admittedly are.

Accordingly, this Court finds that the Courts below have committed no illegality in dismissing the impleadment application filed by the petitioner and the orders call for no interference.

Besides, on admitted facts, the status of the petitioners is that of joint tenants and it is settled law that one joint tenant is competent to represent the other joint tenants.

Lastly, reliance upon the judgment cited on behalf of petitioners is entirely misplaced. The Court, in the judgment cited, was dealing with a case arising out a release application under Section 21 (1) (a) of U.P. Act No. 13 of 1972. The judgment therefore has no application in the facts of the instant case, which arises out of a SCC suit and pertains to property to which U.P. Act No. 13 of 1972, prima facie does not apply.-

In view of the above discussion, the writ petition fails and is dismissed.