ZAHIR HUSSAIN Vs. ARUNA

JUDGEMENT

(1.) THE second appellant in R.C.A.No.43 of 1994 on the file of Rent Control Appellate Authority/Subordinate Judge's Court, Tuticorin, has filed these two revision petitions aggrieved against the orders passed in I.A.No.47 of 1999, dated 12.9.2001.

(2.) THE case in brief for disposal of both the revision petitions is as follows:- THE respondents herein as landlords filed R.C.O.P.No.22 of 1993 against one Mohammed Ibrahim and the present petitioner Zahir Hussain for eviction on the ground of demolition and reconstruction under section 14(1) (b) of Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as 'THE Act'). THE rent control petition was allowed granting one month time to the tenants to vacate the property. Aggrieved against this, the tenants preferred R.C.A.No.43 of 1994 on the file of Sub Court, Tuticorin and during the pendency of the appeal, it appears that the 1st appellant named Mohammed Ibrahim died on 8.2.1997 and therefore, the 2nd appellant filed a memo that his father passed away on 8.2.1997 and he was running the business even during the time of his father and as such, he may be recorded as the legal heir of the 1st appellant. However, the landlords filed I.A.No.47 of 1999 under Order 22, Rule 9 of Civil Procedure Code alleging, that the 2nd appellant had no statutory tenancy right and he has no right to continue the appeal after the death of the 1st appellant. When the 1st appellant was sick and bedridden only, the 2nd appellant was running the business. Now, the landlords learnt that due to arrangement in the family and the division of business between the legal heirs of the deceased 1st appellant, the 2nd appellant was allotted another shop by name "Mumbai Stove Marketing" in door No.25A, West Car Street, Tuticorin. He had also obtained separate R.C. number in his name and he has gone out of the premises in question, which is now being run by other sons of the deceased. But they were not assisting their father during his lifetime and hence, they are not entitled to statutory tenancy right. THE landlords therefore sought dismissal of the appeal as abated on the death of the 1st appellant. This application was resisted by the 2nd appellant alleging that he was carrying on business along with the father, the 1st appellant even during his lifetime and also denied the alleged family arrangement. Similarly, the landlords also filed objections relating to the memo filed by the 2nd appellant. P.W.1 and R.W.1 were examined and Exs.A-1 to A-5 and Exs.B-1 to B-5 were marked. After hearing the parties, the learned Subordinate Judge allowed I.A.No.47 of 1999 and consequently R.C.A.No.43 of 1994 was also dismissed as abated and aggrieved against this, the 2nd appellant has come forward with the present revision petitions.

(3.) IT is necessary to state that the 2nd appellant was already a party in the rent control petition filed by the landlords. There is a clear averment in the petition itself that the 2nd appellant alone was looking after the business. Now, the learned counsel for the respondents would contend that at the time of the filing of the rent control petition, no doubt, the 2nd appellant was looking after the business along with his father as he was sick and bedridden. There is no averment in the main rent control petition that the 2nd appellant was assisting the father only because of his illness. The respondents / landlords having made the 2nd appellant as one of the parties in the rent control petition, now cannot contend that the 2nd appellant ceased to be a tenant in the eye of law on the ground of some alleged family arrangement in the family after the death of the 1st appellant. In fact, no record has been filed on the side of the respondents to prove the alleged family arrangement. The respondents, no doubt, filed some letters said to have been written by other sons of the 1st appellant and they have been made use of to dismiss the appeal as abated. In my view, the order passed by the court below dismissing the appeal as abated and allowing I.A.No.47 of 1999 are not proper and correct.