JUDGMENT Sanjay Misra, J.
1. Heard Sri R. B. Singhal, learned Counsel for the petitioners and Sri B. D. Mandhyan, learned senior advocate assisted by Sri M. M. Tripathi, learned Counsel for the contesting respondents.
2. This writ petition is directed against the judgment and order dated 10.9.1985, passed in Revision No. 221 of 1980 by the Court of IVth Additional District Judge, Bulandshahr. The facts giving rise to the instant petition are that predecessor in interest of the petitioners being landlord of the building wherein shop in dispute is situated sought permission under Section 3 of U. P. Act No. 3 of 1947 from the District Magistrate to sue the tenants for eviction. The shop it was alleged was required by the landlord. The said application was allowed by the Sub-Divisional Magistrate by an order dated 24.6.1971. Predecessor in interest of the respondent tenant filed a revision against the aforesaid order and the said revision was dismissed on 17.9.1971 by the Commissioner, Meerut Division, Meerut. Armed with the permission granted to the Predecessor in interest of the-petitioners, they filed a Suit No. 554 of 1971 for eviction of the tenant. The said suit was decreed on 11.2.1980. During the pendency of these proceedings the original tenant namely Radhey Lal had died and was substituted by his son Madan Lal who also died and subsequently the heirs of Madan Lal were brought on record. Against the decree passed in Suit No. 554 of 1971 a Revision No. 33 of 1980 was filed by only one of the heir of Madan Lal, namely Rakesh Kumar. His other heirs including his widow Smt. Vidyawati did not file any revision. The said revision was dismissed on 22.9.1980, against which a Writ Petition No. 8447 of 1980 was filed by Rakesh Kumar which too was summarily dismissed by this Court vide order, dated 22.12.1980. The proceedings for eviction of the tenants thus attained finality and execution was filed by the petitioners for eviction of the tenants on the basis of the aforesaid decree. Present respondents No. 2 and 3 namely Smt. Guddoo and Naresh Kumar filed their objection under Section 47 of the Civil Procedure Code which was registered as Miscellaneous Execution Case No. 127 of 1980. The objection of the respondents was rejected by the Court of Munsif vide order dated 8.12.1980. Consequently the respondents filed Revision No. 221 of 1980 which has been allowed by the Impugned order dated 10.9.1985. The petitioners who are landlords have challenged the aforesaid order.
3. The learned Counsel for the respondents Sri B. D. Mandhyan has submitted that the impugned order is in accordance with law inasmuch as by virtue of provisions of Order XXXII, Civil Procedure Code, the Court was required to appoint guardian or a next friend to the minors (Smt. Guddoo and Naresh Kumar) who had been impleaded as parties in the suit. His contention is that the respondent Nos. 2 and 3 namely Smt. Guddoo and Naresh Kumar were minors at the time when the decree was passed and the Court having failed to appoint a guardian or next friend the said decree could not be said to be binding upon them. His contention is that the Scheme of Order XXXII, Civil Procedure Code is very clear and it is for the purpose of the minors interest to be lawfully represented by a proper person in a particular action. He therefore, contends that it was necessary under law that the interest of the aforesaid minors ought to have been protected by appointing a guardian or next friend whose interest would not in any manner be distinguishable from that of the minor.
4. Learned Counsel for the petitioners on the other hand contended that in proceedings under the U. P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972, tenancy is not inherited by the heirs as a tenancy in common but it is a co-tenancy and the heirs of the tenant cannot be treated to be independent tenants in their own rights. Upon the death of the original tenant his heirs and legal representatives inherit the tenancy as a co-tenants. For the aforesaid proposition he has placed reliance on a decision pronounced in the case of Harish Tandon v. Additional District Magistrate, Allahabad and Ors. 1995 (1) ARC 220 : 1995 (1) AWC 106 (SC). He has placed reliance on paragraph Nos. 23, 24 and 25 of the said decision. The said paragraphs are quoted hereunder:
23. The attention of the learned Judges constituting the Bench in the case of H. C. Pandey v. G.C. Paul (supra) was not drawn to the view expressed in the case of Mohd. Azeem v. District Judge, Aligarh (supra), There appears to be an apparent conflict between the two judgments. It was on that account that the present appeal was referred to a Bench of three Judges. According to us, it is difficult to hold that after the death of original tenant his heirs become tenant in common and each one of the heirs shall be deemed to be independent tenant in his own right. This can be examined with reference to Section 20(2) which contains the grounds on which a tenant can be evicted. Clause (a) of Section 20(2) says that if the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand, then that shall be a ground on which the landlord can institute a suit for eviction. Take a case where the original tenant who was paying the rent dies leaving behind four sons. It need not be pointed out that after the death of the original tenant, his heirs must be paying the rent jointly through one of his sons. Now if there is a default as provided in Clause (a) of Sub-section (2) of Section 20 in respect of the payment of rent, each of the sons will take a stand that he has not committed such default and it is only the other sons who have failed to pay the rent. If the concept of heirs becoming Independent tenants is to be Introduced, there should be a provision under the Act to the effect that each of the heirs shall pay the proportionate rent and in default thereto heir or heirs alone shall be liable to be evicted. There is no scope for such division of liability to pay the rent which was being paid by the original tenant, among the heirs as against the landlord what the heirs do inter se is their concern. Similarly so far as ground (b) of Sub-section (2) of Section 20, which says that if the tenant has wilfully caused or permitted to be caused substantial damage to the building, then the tenant shall be liable to be evicted; again, if one of the sons of the original deceased tenant wilfully causes substantial damage to the building, the landlord cannot get possession of the premises from the heirs of the deceased tenant since the damage was not caused by all of them. Same will be the position in respect of Clause (c) which is another ground for eviction, i.e., the tenant has without the permission in writing of the landlord made or permitted to be made, any such construction or structural alteration in the building which is likely to diminish its value or utility or to disfigure it. Even if the said ground is established by the landlord he cannot get possession of the building in which construction or structural alterations have been made diminishing its value and utility, unless he establishes that all the heirs of deceased tenant has done so. Clause (d) of Sub-section (2) of Section 20 prescribes another ground for eviction that if the tenant has without the consent in writing of the landlord, used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes; the landlord cannot get possession of the building unless he establishes the said ground individually against all the heirs. We are of the view that if it is held that after the death of the original tenant, each of his heirs becomes independent tenant, then as a corollary it has also to be held that after the death of the original tenant, the otherwise single tenancy stands split up into several tenancies and the landlord can get possession of the building only if he establishes one or the other ground mentioned in Sub-section (2) of Section 20 against each of the heirs of original tenant. One of the well-settled rules of interpretation of statute is that it should be interpreted in a manner which does not lead to an absurd situation.
24. It appears to us in the case of H. C. Pandey v. C.C. Paul (supra) it was rightly said by this Court that after the death of the original tenant, subject to any provision to the contrary, the tenancy rights devolve on the heirs of the deceased tenants jointly. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor and the heirs succeed to the tenancy as joint tenants.
25. In the case of Smt. Gian Devi Anand v. Jeevan Kumar and Ors. 1985 SCFBRC 229 (SC), the Constitution Bench of this Court in connection with Delhi Rent Control Act, 1958, said:
The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the deceased tenants and all the rights and obligations of the deceased tenants including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant. As the protection afforded by the Rent Act to a tenant after determination of the tenancy and to his heirs on the death of such tenant is a creation of the Act for the benefit of the tenant, it is open to the Legislature which provides for such protection to make appropriate provisions in the Act with regard to the nature and extent of the benefit and protection to be enjoyed and the manner in which the same is to be enjoyed. If the Legislature makes any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in a specified manner by any particular class of heirs of the deceased tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfilment of the condition in the manner and to the extent stipulated in the Act.
5. In the present case, it is quite apparent from the order of the revisional court that notices of the suit were served upon the parties including the heirs of Madan Lal by publication. It is not a case where notices were not served. The only ground upon which the revisional court has allowed the objection of the respondents is that a guardian was not appointed for the minors (respondents No. 2 and 3) therefore, the said respondents remained unheard and the decree passed against them cannot be executed. The aforesaid view taken by the revisional court is erroneous, according to this Court. in a proceeding under the U. P. Act No. 13 of 1972, rights of the co-tenants are not distinguishable. On the death of the original tenant his heirs do not become tenants in common or independent tenants on their own separate rights. The heirs became co-tenants and the tenancy remains single. It is not split into as many heirs as the original tenant had left behind. Nor the premises under tenancy can be said to have been split in between the various heirs. In the present case deceased Madan Lal had inherited the tenancy from Radhey Lal, and Madan Lal's heirs were all brought on record and would be co-tenants in case, they were normally residing with the tenant in the building at the time of the death of the tenant. Therefore, the respondent Nos. 2 and 3 being the son and daughter of Madan Lal would be co-tenants with the other heirs of Madan Lal or with those heirs who were normally residing in the building with Madan Lal at the time of his death. The rights of tenancy of such of the heirs was not independent of each other. They did not have their own individual independent right of tenancy to the exclusion of the other heirs who were co-tenants. The tenancy remained single. Since the elder heir of Madan Lal namely Rakesh Kumar (respondent No. 4 herein) had contested the proceedings on the strength of his status as a co-tenant it cannot be held that the rights of the respondents No. 2 and 3 (sister and brother of respondent No. 4) were separate and were required to be protected Independently by appointing a guardian or next friend whose interest was not adverse to them.
6. Order XXXII, Rule 3, Civil Procedure Code provides that where the defendant is a minor, the Court shall appoint a proper person to be the guardian for the suit for such minor. Rule 4 states that the interest of such person should not be adverse to that of the minor. Rule 3A clarifies that where the next friend of the minor has an adverse interest to that of the minor and the minor is prejudiced by reason of such adverse interest, the decree passed in the former suit can be set aside. The contention of Sri Mandhyan is based upon the aforesaid scheme of Order XXXII, Civil Procedure Code. The interest of the minor is the paramount consideration. In case the interest of the minor is not separable in law from that of his co-defendants an inference cannot be drawn that the co-defendants had an adverse interest to that of the minor. In the present case, the rights of the heirs of Madan Lal who inherited the tenancy under the Act were not independent on their own separate rights. The tenancy rights were not separable in between co-tenants. Therefore, since the proceedings were contested by the major co-tenant it cannot be said that the respondents No. 2 and 3 who were minors at that time are not bound by the decree.
7. The tenancy was inherited by the heirs of Madan Lal as co-tenant. It is settled law that the order passed against one co-tenant is binding upon the other co-tenant and such a decree would bind all the co-tenant. The law has been laid down by the Hon'ble Supreme Court in the case of Ashok Chintaman Juker and Ors. v. Kishore Pandurang Mantri and Anr. of the aforesaid Judgment is quoted hereunder:
16. In the case on hand, as noted earlier, on the death of the original tenant Chintaman the rent bills in respect of the premises in question were issued in the name of his elder son Kesrinath and on his death the rent bills were issued in the name of his widow Smt. Kishori Kesrinath Juker. It is not the case of the appellant No. 1 that there was any division of the premises in question or that rent was being paid to the landlord separately by him. Indeed the appellant No. 1 took the plea that he was paying the rent through Smt. Kishori Kesrinath Juker. Thus, the tenancy being one, all the members of the family of the original tenant residing with him at the time of his death, succeeded to the tenancy together. In the circumstances the conclusion is inescapable that Smt. Kishori Kesrinath Juker who was impleaded as a tenant in the suit filed by the landlord represented all the tenants and the decree passed in the suit is binding on all the members of the family covered by the tenancy. In the circumstances the decree passed in terms of the compromise entered between the landlord and Smt. Kishori Kesrinath Juker can neither be said to be invalid nor in-executable against any person who claims to be a member of the family residing with the original tenant and therefore, a tenant as defined in Section 5 (11) (c). The position that follows is that the appellants have no right to resist on the ground that the decree is not binding on them. Further, the trial court and the appellate court concurrently held that the appellant No. 1 has not been residing in the premises since 1962, i.e.. when his elder brother Kesrinath was alive. Therefore, when the suit was filed in the year 1992 there was no necessity for the landlord to implead appellant No. 1 or members of his family in the suit since he (landlord) had no cause of action for seeking a decree of recovery of possession from them. In that view of the matter, the decree under execution does not suffer from any illegality or infirmity. Viewed from any angle, the appellants have no justification on the facts as well as law to resist execution of the decree for possession of the premises by the landlord. The Executing Court rightly rejected the objection filed by the appellants against execution of the decree and the appellate court and the High Court rightly confirmed the said order. This appeal being devoid of merit is dismissed with costs which is assessed at Rs. 10,000.
8. For the reasons stated above the writ petition succeeds and is allowed. The order dated 10.9.1985, passed in Revision No. 221 of 1980 is quashed. No order is passed as to costs.
9. Learned Counsel appearing on behalf of respondents No. 2 and 3 namely Smt. Guddoo alias Lata Sharma and Sri Naresh Kumar has lastly contended that he may be granted some time to vacate the premises which consists of a shop on the ground floor and balakhana on the first floor situate in Deputy Ganj, Boora Bazar, district Bulandshahr. Learned Counsel for the petitioner fairly consented to the aforesaid request and on agreement of the learned Counsel for the parties, respondents are granted eight months time from today to vacate the premises in question and handover peaceful possession to the petitioners. To such effect respondents No. 2 and 3 may file undertaking before the trial court failing which the time as granted above shall deem to have not been granted.