Tola Ram vs Janta Charitable Clinic Management Committee

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12.05.18

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The application was contested by the respondent - landlord. The first appellate court on coming to the conclusion that as the requirements of tenant as

prescribed under Section 3 (vii) (b) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 ('the Act') are not fulfilled by the applicant,

inasmuch as, the premises in question being commercial, no averments was made by the applicant that he was carrying on business in the premises

with the deceased, rejected the application.

The present leave to appeal alongwith second appeal has been filed inter-alia with the submissions that the appellate court was not justified in rejecting

the application filed under Order XXII Rule 3 CPC, inasmuch as, it was necessary for the appellate court to hold an inquiry under provisions of Order

XXII Rule 5 CPC and in absence of such an inquiry, passing of the order rejecting the application under Order XXII Rule 3 CPC is not justified and,

therefore, the applicant be granted leave to appeal.

Learned counsel for the respondent supported the order passed by the first appellate court.

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

It is not in dispute that the suit for eviction was filed by the respondent - plaintiff under provisions of the Act.

Section 3 (vii) of the Act defines tenant as under:-

(vii) ""Tenant"" means:-

(a) the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be, payable for any premises to his

landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed

under the provisions of this Act; and

(b) in the event of death of the person as is referred to in sub-clause (a), his surviving spouse, son, daughter and other heir in accordance with the

personal law applicable to him who had been, in the case of premises leased out for residential purposes, ordinarily residing and in the case of

premises purposes, ordinarily carrying on business with him in such premises as member of his family upto his death.

A perusal of the Sub-Clause (b) reveals that in the event of death of the person as referred to in Sub-Clause (a) the surviving spouse, son, daughter

and other heir in accordance with personal law applicable to him, who was ordinarily carrying on business with him in the commercial premises as

member of his family up to his death, is included in the definition of tenant.

The application which has been filed (quoted above) reveals that the applicant except for indicating that Smt. Basanti had no child and that he was

nephew of her deceased husband, claimed impleadment, without indicating himself as tenant in terms of the definition under Section 3 (vii) (b) of the

Act.

Despite the appellate court dismissing the application on account of non-indication in terms of the definition of tenant, no averment whatsoever, has

been made in the application seeking to set-up his status as tenant in the shop in question.

So far as the reliance placed on provisions of Order XXII Rule 5 CPC is concerned, the same applies to circumstances where there is a dispute about

the legal representative of a deceased plaintiff or defendant.

Present is not a case as to whether the applicant was legal representative of the deceased or not, the issue was whether without claiming his status as

a tenant, he could claim his status as legal representative and for lack of any material averment in this regard, the first appellate court was justified in

rejecting the application.

No case for grant of relief as prayed for is made out. The application is, therefore, dismissed. Consequently, the second appeal filed alongwith leave to

appeal also stands rejected.