Rajasthan High Court - Jodhpur
Tola Ram vs Janta Charitable Clinic ... on 22 February, 2021
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civ. Leave To Appeal No. 16/2019
Tola Ram S/o Shri Mal Chand, Aged About 69 Years, R/o Nohar,
District Hanumangarh.
----Appellant
Versus
1. Janta Charitable Clinic Management Committee, Through
Its Secretary, Janta Charitable Clinic Management
Committee, Nohar, District Hanumangarh.
2. Lrs Of Smt. Basanti W/o Late Sohan Lal, R/o Nohar ,
Tehsil Nohar, Dist. Hanumangarh (Deceased)
----Respondents
For Appellant(s) : Mr. Niranjan Lal Joshi.
Ms. Kirti Pareek.
For Respondent(s) : Mr. R.K. Bohra.
HON'BLE MR. JUSTICE ARUN BHANSALI
Order
22/02/2021
This leave to appeal has been filed by the applicant,
alongwith S.B. Civil Second Appeal, aggrieved against order dated
04.09.2019 passed by Additional District Judge No.2, Nohar,
Hanumangarh, whereby, the application filed by the
applicant/appellant under Order XXII Rule 3 CPC for being
impleaded as appellant in place of Smt. Basanti has been rejected.
The suit was filed by respondent - plaintiff for eviction,
arrears of rent against one Sohan Lal.
During pendency of the suit Sohan Lal died and his wife Smt.
Basanti was impleaded as his legal representative.
The suit came to be decreed by the trial court by judgment
and decree dated 20.04.2015.
Feeling aggrieved, Smt. Basanti filed first appeal. During
pendency of the first appeal Smt. Basanti died.
The applicant filed application under Order XXII Rule 3 CPC
with the following averments:-
(2 of 4) [CLA-16/2019]
"Jheku th]
mijksDr vuokuh vihy
dh vihykFkhZ clUrh nsoh dk LoxZokl
fnukad 12-05-18 dks gks pqdk gSA clUrh
nsoh dh dksbZ larku ugha gS izkFkhZ] clUrh
nsoh ds e`rd ifr dk Hkfrtk gS] rFkk
clUrh nsoh ds ifr ds vU; dksbZ HkkbZ ugha
gSA blfy, izkFkhZ gh e`rdk clUrh nsoh dk
fudVre dkuwuh okfjl gS vkSj e`rdk
vihykFkhZ clUrh nsoh ds LFkku ij i{kdkj
cuus dk vf/kdkjh gSA izkFkZuk&i= vUnj
fe;kn gSA
vr% izkFkZuk&i= izLrqr
dj fuosnu gS fd izkFkhZ dks vihykFkhZ
clUrh nsoh ds LFkku ij i{kdkj cukdj
vihy dh dk;Zokgh tkjh j[ks tkus dk
vkns"k Qjek;k tkosA"
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.
(3 of 4) [CLA-16/2019]
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.
(4 of 4) [CLA-16/2019]
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.
(ARUN BHANSALI),J
48-pradeep/-
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