VIJAY KUMAR KHAMBATE Vs. VINAY KUMAR AGGARWAL

JUDGEMENT

(1.) The respondent filed an eviction petition under Section 22(d) of the Rent Control Act,1958 (hereinafter referred to as the 'said Act') against the father of the petitioner who was the tenant in the suit property. The petition was at the stage of petitioner's evidence when late Sh.P.S.Khambate passed away on 26.03.2003 and thus an application was filed by the respondent seeking impleadment of the present petitioner as a legal representative which was allowed on 16.09.2005. The application filed by the respondent was under the provisions of Order 22 Rule 4 of the Code of Civil Procedure r/w Section 2(l)(iii) of the said Act. The said provisions reads as under: "(l) 'tenant' means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable, and includes - i)a sub-tenant; ii)any person continuing in possession after the termination of his tenancy; and iii)in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and conditions specified, respectively, in Explanation I and Explanation II to this clause, such of the aforesaid person's a) spouse b) son or daughter, or, where there are both son and daughter, both or them, c)parents, d) daughter in law, being the widow of his pre-deceased son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include, - A) any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be re-opened under the proviso to section 3 of the Delhi rent Control(amendment) Act, 1976 (18 of 1976) B) any person to whom a licence, as defined by secation52 of the Indian Easements Act, 1882 (5 of 1982) has been granted. Explanation I ? The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows. a) firstly, his surviving spouse; b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family up to the date of his death. c) thirdly, his parents, if there is no surviving spouse,son or daughter of the deceased person, or if such surviving spouse, son or daughter or any of them, did not ordinarily live in the premises as a member of the family of the of the deceased person up to the date of his death; and d) fourthly, his daughter in law, being the widow of his pre- deceased son, if there is no surviving spouse, son, daughter or parents, or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death. Explanation II ? If a person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and , on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished. Explanation III ? For the removal of doubts, it is hereby declared that - a) where, by reason of Explanation II, the right of any successor to continue in possession after the termination of the tenancy becomes extinguished, such extinguishment shall not affect t he right of any other successor of the same category to continue in possession after the termination of the tenancy; but if there is no other successor of the same category, the right to continue in possession after the termination of the tenancy shall not, on such extinguishment, pass on to any other successor, specified in any lower category or categories, as the case may be; b) the right of every successor, referred to in Explanation I to continue in possession after the termination of the tenancy, shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs; m) ?urban area? has the same meaning as in the Delhi Municipal Corporation Act, 1957 (emphasis supplied)

(2.) The Additional Rent Controller while allowing the application for impleadment on 16.09.2005 also passed an eviction order on the same date against the petitioner-herein on account of the fact that the petitioner was not a person financially dependent on his late father at the at the time of his death. The said premises were let out for residential purposes and the tenancy of late Sh.P.S.Khambate had been terminated vide the notice dated 21.09.1999. Thus the petitioner had acquired the right to continue in possession for limited period of only one year. The defences thus available to late Sh. P.S.Khambate were held as not available to the petitioner herein.

(3.) The submission of the learned counsel for the petitioner is that the Additional Rent Controller failed to appreciate that the period of one year from the date of demise of the tenant had already expired and thus the petitioner had ceased to be a tenant after the said time. Thus there was no relationship of landlord and tenant and thus no order of eviction could have been passed against the petitioner. It may be noticed that the petitioner had also taken the additional plea that the contractual tenancy of late Sh. P.M.Khambate had not been terminated and thus the petitioner had become a lawful tenant by inheritance. Learned counsel further contends that since purpose of letting was not mentioned, the letting could be both for residential and commercial purposes.