Heard Sri Q.M. Haque learned counsel for the petitioners and Ms. Deepti Gupta learned counsel for the opposite parties.
This is a petition filed under Article 227 of the Constitution of India assailing the order passed by the revisional court below on 19.3.2021 whereby the application i.e. 30Ka/2 for substitution of the legal heirs of one of the respondents in the revision who was defendant no. 6 in the miscellaneous case filed under Section 21(1)(a) of the U.P. Act No. 13 of 1972(hereinafter referred to as the Act) has been allowed under Order 22 Rule 4 C.P.C.
Facts in brief are that a Misc. Case No.1/2016 for eviction of tenants under Section 21(1)(a) of the Act was filed before the court below impleading six defendants. The defendant no. 1 was the original tenant whereas the defendant nos. 2 to 6 were the legal heirs of the deceased original joint tenant Samiullah who was the real brother of the defendant no. 1. The tenancy originally was admittedly joint. Thus, all the co-defendants were joint tenants of the shop in dispute. A written statement jointly filed on 5.2.2016 by all the defendants is also on record. Thereafter, an application for amendment i.e. Ka-3 was filed by the plaintiffs. In response to this application, all the defendants are stated to have filed their objections jointly on 7.3.2018 as is evident from paragraph 7 of the present petition. The amendment application came to be rejected by order dated 16.10.2018 which is contained as anneuxre 6 but at the relevant point of time one of the defendants namely defendant no. 6(Smt. Ammunnisa) had died.
The petitioners have mentioned the date of death of the defendant no. 6 as 1.1.2018 in paragraph 10 of the petition and the same date is mentioned in paragraph 4 of the objections filed against the substitution application preferred by the landlords at the revisional stage under Order 22 Rule 4 C.P.C. The substitution application filed by the landlord in the revision arisen out of order dated 16.10.2018 also mentions the date of death of defendant no. 6 as 1.1.2018.
In the light of the facts on record, if the date of death of the defendant no. 6(Ammunnisa) mentioned as 1.1.2018 is taken to be correct, the objections filed against the amendment application jointly on behalf of the defendants on 7.3.2018 emerges to be false. Thus, the legal heirs of the defendant no. 6 in the objections filed against the application for amendment cannot be presumed to have been represented by any of the defendant nos. 1 to 5 unless authorized.
The amendment application was also rejected after the death of the defendant no. 6 meaning thereby that the proceedings under Section 21(1)(a) were continued contrary to the mandate of Section 34(4) of the Act, which is extracted below :-
"34(4) Where any party to any proceeding for the determination of standard rent of or for eviction from a building dies during the pendency of the proceeding, such proceeding May be continued after bringing on the record:
(a) in the case of the landlord or tenant, his heir or; legal representatives;
(b) in the case of an unauthorised occupant, any person claiming under him or found in occupation of the building"
Bare reading of the aforesaid provision makes it clear that the proceedings under the Act can be continued only after bringing on record the legal heirs or legal representatives of the deceased landlord or tenant. Even if it is assumed that the defendants were joint tenants but upon the death of any of them, the heirs would inherit the tenancy in their individual capacity, thefore, the proceedings were liable to be continued either by bringing the legal representatives of the deceased tenant on record or by substituting the legal heirs in the plaint. Thus, the continuity of proceedings upon the death of defendant no. 6 after 1.1.2018 from a close scrutiny of the record, is clearly vitiated for having proceeded against a dead person whose legal representatives/legal heirs were not brought on record. In the result, the proceedings under Section 21(1)(a) of the Act could not be continued. The position of law is supported under a judgment reported in 1984 LCD pg. 68(Ajeet Gupta versus Smt. Mukteshwari Nigam and others).
Once the proceedings under Section 21(1)(a) of the Act could not continue, the order passed by the court below rejecting the amendment application on 16.10.2018 was inconsequential and any proceeding arising therefrom i.e. the revision in the present case was equally non-maintainable and that too by impleading a dead person as opposite party. The substitution application which even otherwise was not maintainable under Order 22 Rule 4 C.P.C. in the revision was erroneously entertained by the revisional court. Hence, the order passed on the substitution application impugned herein this petition is equally bad in the eye of law.
It may be relevant to note that the consequence of abatement does not follow as a result of death of the landlord or a tenant in the proceedings instituted under the Rent Control Act. Therefore, the overriding effect of the Act by virtue of Section 38 to the extent of inconsistency with CPC makes the application of Section 34(4) of the Act as indispensable, therefore, bringing on record the legal representatives or the legal heirs of the deceased party for continuity of the proceeding becomes a pre-requisite.
The thirty days period of limitation stipulated under Rule 25 of the Rules applicable in this behalf is statutorily prescribed and for this purpose the provisions of Limitation Act are open to be taken aid of in the event of delay.
Having regard to the facts and circumstances of the present case, this Court is of the considered opinion that not only that the order rejecting the amendment application filed by the plaintiffs in Misc. Case No. 1 of 2016 by order dated 16.10.2018 is non-est but the consequential proceedings of Revision No. 83 of 2018 are also bad in the eye of law being non-maintainable. The proceedings after the death of defendant no. 6 ought not to have proceeded without bringing on record her legal representative/legal heirs.
It is thus open to the plaintiffs to make an appropriate application for bringing on record the legal heirs/legal representatives of the defendant no. 6 in the pending proceeding under Section 21(1)(a) of the Act i.e. in Misc. Case No. 1 of 2016 and if any such application is filed within one month from the date of uploading this order, the competent court shall consider the said application and pass necessary order after affording opportunity to both the parties. The amendment application shall also be treated to be pending for the aforesaid reasons and opportunity to file objections may be granted afresh so that all the parties may have an opportunity of filing their objections and setting out their defence. The amendment application as well as the proceedings pending under Section 21(1)(a) of the Act may be brought to its logical conclusion expeditiously. The order dated 16.10.2018 along-with the consequential proceedings before the revisional court are hereby set aside/quashed.
The petition is accordingly disposed of.
Order Date :- 28.7.2021 Kanhaiya