HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 58 Case :- MATTERS UNDER ARTICLE 227 No. - 2814 of 2015 Petitioner :- Sanjeev Saxena & 2 Others Respondent :- Nitin Paliwal & 3 Others Counsel for Petitioner :- Anshu Chaudhary Hon'ble Manoj Kumar Gupta,J.
1. The present petition has been filed invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution, challenging the order dated 4.2.2015 passed by the Judge Small Causes Court, Etah, whereby the application filed by the petitioners in SCC suit no. 1 of 1996 for being made party to the suit as heirs and legal representatives of the deceased tenant came to be rejected. The order passed by the revisional court dated 8.4.2015 is also under challenge.
2. It appears from the record that SCC suit no.1 of 1996 was instituted by the plaintiff/respondents 1 and 2 against Anand Bihari Lal Saxena for recovery of arrears of rent and for ejectment. He contested the suit by filing a written statement. However, during pendency of the suit, he died. The plaintiff/landlords moved an application for substitution Paper No.133-A, stating that after the death of the tenant, his widow alone is occupying the demised premises and she be substituted in his place. It was further stated in the application that no other heir of the deceased tenant is in possession of the demised premises. The application was allowed and the widow Smt. Indra Saxena was brought on record. Thereafter Smt. Indra Saxena filed an application 142 C for brining on record her son and two daughters (petitioners herein) alleging that they were also in occupation of the demised premises and have inherited the tenancy right after the death of Anand Bihari Lal Saxena. The application was rejected by the Judge Small Causes Court by order dated 25.11.2014. While rejecting the application, the Judge Small Causes placed reliance on the judgement of this Court in the case of Pooja Gupta vs. Pushkar Kumar1 , wherein this Court has held that after the death of the original tenant, his heirs inherit the tenancy as joint tenants. For taking such view, this Court has placed reliance on the judgement of the Supreme Court in the case of Harish Tandon vs. Additional District Magistrate, Allahabad and others2, wherein the Supreme Court has held that the heirs of the deceased tenant succeed to the tenancy as joint tenants. Further reliance has been placed on another judgement of the Supreme Court in case of H.C. Pandey vs. G.C. Paul3 wherein similar view has been taken. Accordingly, it was held that after the death of the original tenant, it was not necessary to implead all his heirs as long as even one of the heirs is already on record. It was found that the widow of the deceased tenant is already on record and is duly contesting the claim of the landlord.
3. It seems that after rejection of the application 142 C, moved by the widow of the deceased tenant, another application 145C came to be filed at the instance of the petitioners who are the son and daughters of the deceased tenant. They have also made a prayer for being impleaded in the suit in place of the deceased tenant as according to them they have inherited the tenancy rights.
4. The Judge Small Causes by order dated 4.2.2015 has rejected the application holding that by previous order dated 25.11.2014, it was held that after the death of the sole tenant, the tenancy devolved to his heirs as joint tenants. For the said reason, application filed by the widow with the same prayer was rejected. The application now filed by the petitioners, it has been observed by the trial court, is virtually with the same prayer and thus, it was also rejected.
5. Aggrieved by the said order, the petitioners filed revision which has been dismissed by the District Judge by order dated 8.4.2015.
6. The only submission made by learned counsel for the petitioners is that the order, rejecting the application 142C by the mother of the petitioners cannot operate as res judicata against the petitioners and the courts below erred in placing reliance on such order, in rejecting the application filed by them.
7. It is not disputed that the mother of the petitioner had in the past, moved application 142C for bringing on record the petitioners herein, as heirs and legal representatives of the deceased tenant. The application was filed for the benefit of the petitioners herein. However, it came to be rejected in view of the legal pronouncement by the Supreme Court in the case of Harish Tandon (supra) and H.C. Pandey (supra), according to which all heirs are to be treated as joint tenants. Doctrine of res judicata comes into operation not only when the parties are identical but even if they are litigating under the same title. The right claimed by the mother of the petitioners in moving application 142C seeking their impleadment was a right which had allegedly devolved on the petitioners consequent to the death of the original tenant. In the application filed by the petitioners for their substitution, the same right has been set up. The petitioners also claim themselves to be joint tenants after the death of their father. Thus, the petitioners herein, when they had filed the application for their impleadment, were litigating under the same title as was their mother when she filed the application 142C. Thus, I do not find any illegality in the orders passed by the courts below rejecting the present application filed by the petitioners for their impleadment by placing reliance on the earlier order dated 25.11.2014.
8. It is noticeable that it has not been the case of the petitioners that their mother who is already a party to the suit, is not contesting the proceedings or is in collusion with the landlord.
9. In this view of the matter, no case is made out for interference in exercise of the supervisory power under Article 227 of the Constitution.
10. The petition lacks merit and is dismissed.
(Manoj Kumar Gupta, J.) Order Date :- 3.7.2015 skv