JUDGMENT J.C. Gupta, J.
1. By means of this writ petition the petitioners have prayed for quashing the order dated 18.4.78 passed by the Rent Control and Eviction Officer (R. C. and E. O.| releasing the disputed property in favour of the landlords respondent Nos. 3 to 5, the order dated 9.3.79 rejecting the petitioners' application moved under Section 16 (5) of the U. P. Act No. XIII of 1972 (hereinafter referred to as the Act), and the order dated 14.1.1982 passed by the revisional court dismissing the petitioners' revision.
2. In order to appreciate the controversy involved in the case, it may be relevant to mention a few facts. The subject-matter of dispute is shop No. 33A. Pratappura, Ajmer Road. Agra. Jamuna Prasad the predecessor in interest of the petitioners and the respondent No. 6 was in occupation of the said shop as tenant at a monthly rent of rupees 15. The landlords filed an application dated 12.4.1978 for releasing the shop in question in their favour on the ground that the shop was likely to fall vacant as the tenant Jamuna Prasad was agreeable to vacate the shop. The Rent Control Inspector made an inspection and reported that the intimation of vacancy has been received from the tenant that he intended to vacate the shop in question in a week or so and the need of the landlord was bona fide. The R. C. and E. O. released the shop in favour of the landlords by the order dated 18.4.78 as no objection against notification of the vacancy was received. Jamuna Prasad then filed an application under Section 16 (5) of the Act for cancelling and setting aside the order dated 18.4.78 releasing the shop in question in favour of the landlords, with the allegation that the shop was neither vacant de facto nor dejuro nor it could be deemed to be vacant nor he had any intention to vacate the same and the release order has been obtained on misrepresentation of real facts and by playing fraud. The tenant has been carrying on business of lyre and tube repairs for the last forty years. It was also stated therein that no notice has been served upon him of the proceeding nor he had been afforded any opportunity to contest the proceedings of declaration of vacancy and the release order made in favour of the landlords. According to him the shop in question was not vacant and he had given no intimation of vacancy. The landlords had obtained his signatures on a blank paper on a false pretext that they were applying for issuing a permit of cement for repair of the roof of the shop in question and believing the said statement of the landlord he signed that paper which has been misused by the landlords as intimation of vacancy. In brief, the order releasing the shop in question in favour of the landlords was challenged as being obtained on misrepresentation and fraud and also on the ground that he had been afforded no opportunity of hearing. It further appears that during the pendency of the said application under Section 16 (5) of the Act, Jamuna Prasad, died on 22.10.78. His heirs, the present petitioners and respondent No. 6 moved an application for substitution. To that application the landlords filed objections infer alia alleging that the application was not legally maintainable as there was no provision for bringing them on record to prosecute the review application made by late Jamuna Prasad in such proceedings. The substitution application was rejected by the R. C. and E. O. by the order dated 7.12.78 merely on the ground that under the Act the only provision for substitution is contained in Section 34 (4) of the Act and since the said provisions applied only in the proceedings for eviction and for enhancement of rent, the application for substitution moved in proceedings under Section 16 (5) of the Act was not maintainable. The petitioners then on 14.12.78 moved an application purporting to be under Section 16 (5) of the Act stating therein that after the death of Jamuna Prasad, they are in occupation of the shop in question as legal heirs of the deceased tenant. The release order made in favour of the landlord was challenged on the same grounds as were raised by the deceased tenant Jamuna Prasad, viz., that the said order was obtained by the landlord on fraud and misrepresentation and so called intimation of vacancy was a forged and fictitious document as no such intimation was ever sent by late Jamuna Prasad. On an objection being raised by the landlord about the maintainability of that application, the R. C. and E. O. by the order dated 9.3.1979 rejected the, aforesaid application of the petitioners as barred by time. Aggrieved by the said order, the petitioners preferred revision which has also been dismissed by the revisional court by the order dated 11.2.1982 on the ground that no second review application under Section 16 (5) was legally maintainable.
3. Sri K. M. Dayal, senior advocate appearing for the petitioners raised a number of contentions before this Court. He argued that since in the present case tenancy of late Jamuna Prasad had not been terminated at any point of time, as such after his death the tenancy right devolved upon the legal heirs (petitioners and respondent No. 6) and they became tenants within the meaning of Section 3 (a) of the Act and since they continued to remain in occupation, the application under Section 16 (5) of the Act was maintainable. It has also been argued on behalf of the petitioner that the substitution application moved by the petitioners and respondent No. 6 was rejected by the R.C. and E.O. on untenable grounds and in arty view of the matter as the said order was not open to revision the petitioner could not be made remedyless by saying on one hand that the substitution application was not maintainable and on the other hand by rejecting the petitioners' application of review on the ground of the same being not maintainable.
4. On the other hand, learned counsel for the respondents argued that when the substitution application of the petitioners had been rejected by the R.C. and E.O. the review application became infructuous and would be deemed to have been dismissed and when that order was not challenged in revision fresh application moved by the petitioner under Section 16 (5) of the Act was not maintainable as there is no provision in the Act permitting filing of successive review applications,
5. From the facts narrated above, it is apparent that it was an undisputed fact that late Jamuna Prasad was the tenant in the shop in question. The vacancy was declared on the basis that the said Jamuna Prasad had sent an intimation of vacancy and thereafter the order of release was made. After when the release order was made, late Jamuna Prasad moved an application under Section 16 (5) of the Act alleging that he had never sent any intimation of vacancy and the document purporting to be intimation of vacancy is forged and fabricated one inasmuch as the landlord had obtained his signature on a blank paper on the pretext that an application for obtaining permit of cement for the repairs of the roof was to be moved. He further alleged that he had not been served with any notice of the proceedings regarding declaration of vacancy and the release order made in favour of the landlord was not legally justified. Before the said application under Section 16 (5) of the Act could be finally decided, Jamuna Prasad died. It is also undisputed that the petitioners and respondent No. 6 are the legal heirs of the deceased Jamuna Prasad. They moved an application for bringing them on record to prosecute the review application of the tenant Jamuna Prasad moved under Section 16 (5) of the Act. This application of the petitioners was, however, rejected by the R.C. and E.O. on the ground that neither the Act nor the Rules envisaged substitution of legal heirs in proceedings under Section 16 (5) of the Act. Thereafter the petitioners filed a fresh application challenging the order of declaration of vacancy as well as the release order stating therein that no intimation of vacancy was actually sent by late Jamuna Prasad and the shop was neither actually vacant nor was likely to fall vacant nor could be deemed to be vacant as they were in occupation of the same as tenant within the meaning of Section 3 (a) of the Act. Sri B. D. Mandhyan, learned counsel for the respondents, however, contended that as soon as the shop in question was declared vacant during life time of Jamuna Prasad, the tenancy stood determined and as such tenancy rights could not be devolved on the petitioners on the death of Jamuna Prasad. This submission of the learned counsel for the respondents must be rejected as having no force. Mere declaration of vacancy does not amount to termination of tenancy. A tenant may continue to be in occupation as a tenant yet there could be vacancy either expected or deemed. In such a case though tenancy continues, yet the building may be treated as vacant for the purpose of allotment or release under Section 16 of the Act. Under Section 3 (a) of the Act, the word tenant has been defined to mean a person by whom rent is payable and on the tenant's death, in the case of a non-residential building his heirs. It is thus clear that upon the death of a tenant, all his heirs become joint tenants in relation to a non-residential building. When undisputedly the petitioners and respondent No. 6 are the legal heirs of the deceased Jamuna Prasad, upon his death all became joint tenants of the building in question and thus the right to prosecute the proceedings survived upon them. The general rule is that all rights of action and all demands whatsoever existing in favour of, or against, a person at the time of his death survive to his legal representatives and the only exception is that the rights intimately connected with the individuality of the deceased do not survive. This principle is enacted in Section 306 of the Indian Succession Act.
6. The application for bringing them on record moved in the proceedings pending before the R.C. and E.O. on the application moved under Section 16 (5) of the Act by late Jamuna Prasad, has been rejected by the R.C. and E.O. on the ground that no such application is contemplated under Section 34 (4) of the Act. Section 34 (4) reads as under :
"Where any party to any proceeding for the determination of standard rent of or for eviction from a building dies during the pendency of proceeding, such proceeding may be continued after bringing on record :
(a) in the case of the landlord or tenant, his heirs or legal representatives ;
(b) in the case of unauthorized occupant, any person claiming under him found in occupation of the building."
Sub-clause (g) of Section 34 (1) of the Act contemplates exercise of power in regard to any other matter which may be prescribed. Likewise sub-section (8) of Section 34 contemplates prescription by Rules in regard to such other powers. The expression "such other powers" obviously means what has not already been provided in any of the sub-clauses (a) to (g) of Section 34 (1). Rule 25 has been framed under Section 34 (4} of the Act and it only prescribes the limitation for making an application under sub-section 14) of Section 34. On the basis of the above provision, it was argued by the learned counsel for the respondents that the substitution application is confined under the said provision only to the proceedings for determination of standard rent or for eviction from the building and not to an application moved under Section 16 (5) of the Act. It may be relevant to mention here that late Jamuna Prasad by moving an application under Section 16 (5) of the Act challenged both the orders declaring vacancy and releasing the shop in question in favour of the landlord. It cannot be disputed that in execution of the release order, the tenant was liable to be evicted from the shop in question. By moving the application late Jamuna Prasad was defending his right to continue in occupation of the disputed shop or. In other words, he was defending his eviction which was inevitable unless the order of release was recalled. Therefore, it cannot be said that the proceedings under Section 16.15) of the Act initiated by the sitting tenant did not relate to his eviction. As already stated above, the petitioners became tenants within the meaning of Section 3 (a) of the Act and had a right to defend their occupation by pursuing and prosecuting the application moved by their predecessor in interest late Jamuna Prasad. The substitution application was thus maintainable and the R.C. and E.G. committed a grave error of jurisdiction in rejecting the same.
7. In any view of the matter, when the petitioners after rejection of their application for permitting them to prosecute the review application of late Jamuna Prasad. had moved an application under Section 16 (5) of the Act for recalling the order declaring vacancy and cancelling the order of release made in favour of the landlord, the same could not be rejected by the R.C. and E.O. on the ground of its being barred by time. The time limit as provided in the proviso to sub-section (5) of Section 16 says that no application under the aforesaid clause shall be entertained later than seven days after the eviction of such person. The words "such person" obviously refer to any person claiming to be lawful occupant of the building and not to the landlord. It would thus follow that an application under the aforesaid sub-section will be barred by time if it is moved later than seven days after eviction of the tenant. In the present case undisputedly neither, late Jamuna Prasad nor his legal heirs had been evicted from the shop in question at any point of time. The R.C. and E.O- thus committed a manifest error of law in rejecting the said application as time-barred. The revisional court while dismissing the revision filed by the petitioners took the view that the application moved by the petitioners under Section 16 (5) of the Act was not maintainable as the Act did not contemplate successive review application under Section 16 (5) of the Act. In this connection, it may be relevant to mention that the review application moved by late Jamuna Prasad had not been decided on merits and after the death of Jamuna Prasad, only substitution application moved by the petitioners was rejected as not maintainable. Thereafter the record was consigned. In these circumstances, it cannot be said that the earlier review application moved by late Jamuna Prasad had been decided on merits and as such the later application moved by the petitioner could not be termed as successive review application. The term "consign" came up for consideration in the case of Sheikh Rahim Bux v. Raghunandan Lal, 1966 ALJ 376. In that case, executing court consigned the record, of execution to the record room on the ground that since the decrees sought to be executed were under appeal, the best course was to consign the record to the record room. The Hon'ble Judge who decided the said case expressed the view that the Code did not contemplate the termination of execution proceedings by an order directing that the record be consigned to the record room. Such an order could not be treated as an order under Rule 57. The decree-holder was unable to proceed with the execution by reason of an injunction against him and it was for this reason that the Court consigned the record to the record room. The Court did not pass any order to dismiss the execution. The order consigning the record would not indicate an intention to finally terminate the execution. In the present case I have already expressed above that the petitioners not only as legal heirs of the deceased Jamuna Prasad but also being tenants within the meaning of Section 3 (a) of the Act had a right to defend their occupation by prosecuting the application for review made by late Jamuna Prasad. The R.C. & E.O. thus should have permitted them to prosecute the review application made by late Jamuna Prasad. The argument of learned counsel for the respondents that since the order of the R.C. & E.O. rejecting the substitution application of the petitioners had not been challenged in revision, the same became final long back and could not be challenged in this writ petition must be rejected. It has already been held by me in the case of Vijai Singh v. Vth Addl. District Judge and others, 1998 (2) AWC 1348, that an order rejecting the application of impleadment/substitution is not open to revision either under Section 18 of the Act or Section 115. C.P.C. The R.C. and E.O. Is not a subordinate court of civil jurisdiction to the Court of District Judge, as such Section 115, C.P.C. has no application. Section 18 of the Act permits revisions only against the orders made under Section 16 or 19 of the Act. An order rejecting the substitution application is not an under any of the aforesaid section. Thus, no revision was maintainable against the order of the R.C. and E.O. whereby the substitution application made by the petitioners was rejected and, therefore, the mere rejection of the substitution application could not debar the petitioner from moving a fresh application for cancelling the release order on the ground mentioned therein. Apart from the fact that the right to defend their occupation survived, they acquired independent rights in themselves by virtue of their becoming tenants within the meaning of Section 3 (a) of the Act.
8. The problem can be viewed from another angle. The application of the petitioners to bring them on record to prosecute the application of late Jamuna Prasad under Section 16 (5) of the Act was rejected by the R.C. and E.O. on the ground that no substitution was permissible in such proceedings. Thereafter when the petitioners moved their own application for recalling the order of vacancy and release, the same was rejected as barred by lime and as being not maintainable in law on the ground that no successive review application is maintainable. The resultant effect of the orders passed by the R.C. and E.O. Is that the petitioners have been rendered with no remedy. In P. Ramanathaaiyar's Law Lexicon. 2nd Edition the word "remedy" has been defined as :
"Remedy as a legal term means to recover a debt or enforce a right ; a mode prescribed by law to enforce a duty or redress a wrong ; that which gives relief to the party aggrieved ; the means by which the obligation is effectuated ; the means employed to enforce a right or redress an injury ; the mode of procedure by which the liability of property to the satisfaction of a debt is enforced ; the particular result to obtain when an action is brought ; the action or means given by law for the recovery of a right."
In Tomlins Law Dictionary the word "remedy" (remedium) has been explained to mean the action or means given by Law for the recovery of a right ; and it is a maxim of Law, that whenever the Law giveth any thing, it gives a remedy for the same.
9. It is a cardinal principle of jurisprudence that when law gives a right to a person, it also ensures a remedy for obtaining the same. A person possessing a right in law cannot be made remedyless by any act or omission of Court or an authority exercising quasi-judicial function. In the present case, the petitioners who had stepped in the shoes of late Jamuna Prasad by virtue of their being legal heirs of late Jamuna Prasad acquired rights in themselves to protect their own occupation under the provisions of the Act which has been enacted for the benefit of tenants. It was the case of late Jamuna Prasad as well as of the petitioners that late Jamuna Prasad had not sent any intimation of vacancy on the basis of which shop in question was declared vacant and subsequently the order of release was made without giving him any opportunity of hearing. According to them, the document which was treated to be an intimation of vacancy sent by Jamuna Prasad was a forged and fictitious document. Undisputedly this assertion of late Jamuna Prasad and of the petitioners has not been inquired into by the R.C. and E.G. or the revisional court which has resulted in grave injustice to the petitioners. The R.C. and E.O. should have decided the applications on merits by making an inquiry into the assertions of the late Jamuna Prasad and the petitioners that no intimation of vacancy was sent by late Jamuna Prasad and the order of vacancy was obtained by fraud and on misrepresentation of facts without giving them an opportunity of hearing.
10. For the reasons stated above, this writ petition is allowed. The impugned order dated 7.12.1978 of the R.C. and E.O. rejecting substitution application, the order dated 9.3.1979 rejecting the petitioners' application moved under Section 16 (5) of the Act and the order dated 14.1.1982 passed by the revisional court dismissing the petitioners' revision are set aside. The case is sent back to the R.C. and E.O. for deciding the aforesaid applications of the petitioners in accordance with law and in the light of the observations made above. Since the matter has become very old, the R.C. and E.O. Is directed to decide the matter finally within a period of two months from the dale a certified copy of this order is produced before him.