Court No. - 26
Case :- MATTERS UNDER ARTICLE 227 No. - 3696 of 2018 Petitioner :- Smt. Kishan Kumari Respondent :- Prescribed Authority, Hathras And 2 Others Counsel for Petitioner :- Arvind Kumar Tiwari
Hon'ble Mrs. Sangeeta Chandra,J.
This petition has been filed by the petitioner challenging the order dated 6.10.2017 passed by the court of Civil Judge (Senior Division) Hathras in P.A. Case No.17 of 2010, Padam Kumar Vs. Narrotam Das and others.
Learned counsel for the petitioner has submitted that respondent No.2 landlord filed an application under Section 21(1) of U.P. Act No.13 of 1972 before the Prescribed Authority registered as P.A. Case No.17 of 2010. The need set up by respondent No.2 was for settling his son in business over the property in dispute. Before such release application was filed a notice was issued on 5.12.2016 by respondent No.2 demanding Rs.10,000/- plus tax. This notice was issued to the petitioner also as legal heir and representative of the erstwhile tenant Late Ram Prakash. The petitioner is a widow and was residing with her father and was taking part in the business run from the aforesaid shop. However, the petitioner was not made party in the release application thereafter by the landlord. Written statement was filed by her brother saying that he alone was conducting the business of Halwai from the shop in question and not admitting the petitioner to be in any way involved in conducting of such business nor objecting to the non impleadment of the petitioner. It has been alleged that the petitioner's brother Narrottam Das was in collusion with the landlord. When the petitioner came to know about the pendency of the release application, she filed an application under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure and with Section 34 of U.P. Act No.13 of 1997. This application dated 18.1.2017 has been rejected on 6.10.2017 by the Prescribed Authority on the ground that it has been filed malafidely only to delay the proceeding in the release application and also on the ground that being a married daughter the petitioner was not a legal heir and therefore not entitled to be impleaded in the said release application as a respondent. Further observation has been made on the basis of judgment rendered in Smt. Malini Agrawal Vs. Rent Control and Eviction Officer, Allahabad, 2000 (3) AWC 2566 that a married daughter does not come within the definition of family under Section 3(g) of U.P. Act No.13 of 1972.
Learned counsel for the petitioner has submitted that the judgment relied upon by the Prescribed Authority is distinguishable on facts and has produced a copy of the said judgment in Smt. Malini Agrawal (supra) before this Court.
It is apparent from the bare perusal of the said judgment that it was with respect to a residential building where father of Smt. Malini Agrawal used to reside alone after the death of his wife. This Court after perusing the statements on oath by the Late father of the petitioner in the objections filed before the Rent Control and Eviction Officer came to conclusion that the father of the petitioner had been residing all alone in the said premises and his daughter was married and came to visit her father along with her husband from time to time. This Court relied upon the definition of family under Section 3(g) of U.P. Act No.13 of 1972 and found that at the time when the application for declaration of vacancy and release was filed by the landlord, the petitioner was married and was living with her husband. She was neither unmarried nor widowed nor divorced nor judicially separated daughter and was thus, not entitled to normally reside with her father, the tenant of the said residential premises. This Court, therefore, dismissed the petition filed by the daughter, Smt. Malini Agrawal.
Learned counsel for the petitioner has placed reliance on a judgment rendered by this Court in Chandan Rai Garg Vs. Prescribed Authority and others, 2010 (78) ALR 878 wherein judgments of the Supreme Court and of this Court have been relied upon by a Coordinate Bench to hold that with respect to commercial property all legal heirs and representatives ought to be impleaded as respondents as all of them inherited the tenancy. Additionally learned counsel for the petitioner has submitted copies of Money orders issued in the name of Kishan Kumari of rent of Rs.5,000/- made out in favour of the landlord showing that she had also been paying rent from time to time to the landlord.
Having heard learned counsel for the petitioner and having perused the impugned order it appears that the fact that the petitioner was a widow and thus, normally residing with her father has been overlooked by the learned trial court. The Prescribed Authority has also misread and misapplied the judgment rendered in Smt. Malti Agrawal (supra). The impugned order dated 6.10.2017 is set aside. Matter is remanded back to the Prescribed Authority, Civil Judge (Senior Division) Hathras to reconsider the petitioner's application, Paper No.82Ga afresh and pass appropriate orders in accordance with law within a period of two months from the date a certified copy of this order is produced before it.
Petition is disposed of accordingly.
Order Date :- 29.5.2018 T. Sinha