PUSHPA AGRAWAL Vs. OMPRAKASH AGARWAL

JUDGEMENT

(1.) Arguments heard finally. Order dictated in Open Court.

(2.) Learned Counsel for the petitioner submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that since petitioner is the legal representative of deceased/Madanlal Bansal, therefore, petitioner was the necessary party. Learned Counsel placed reliance on a decision in the matter of Kumar Jagdish Chandra Sinha Vs. Mrs. Eileen Patricia D rozarie, 1995 1 SCC 164, wherein Hon'ble Apex Court has held that undisputedly a contractual tenant has an estate or interest in the subject-matter of the tenancy and heritability is an incidence of such tenancy. In the absence of any provision in the Act to the contrary, all the heirs of such a tenant would, therefore, on his death, step in his shoes. The same could not, however, be said about the statutory tenant in view of the law down in Anand Nivas (P) Ltd., 1965 AIR(SC) 414 as quoted above and the plain and unambiguous language of Section 2 (h), as it then stood. In other words, the heirs of a statutory tenant had no right to the tenancy as such a right was personal and the Act did not make any provision regarding the manner in which such right was to devolve. Further reliance is placed on a decision in the matter of Textile Association (India) Bombay Unit Vs. Balmohan Gopal Kurup, 1990 4 SCC 700, wherein suit filed after the death of the main tenant without impleading respondent No. 1, the son and the suit was decreed exparte and possession was obtained by the landlord Hon'ble Apex Court has held that respondent son was as much a tenant as his mother and brother, hence exparte decree was set aside and possession was restored. On the basis of aforesaid position of law, it is submitted that petition filed by the petitioner be allowed and the impugned order passed by the learned Court below be set aside.

(3.) Learned Counsel for the respondent No. 1 submits that petitioner is not a necessary party. It is submitted that petitioner was not in occupation of suit accommodation. Learned Counsel placed reliance on a decision in the matter of Shambhudayal Vs. Suleman, 1978 MPLJ 541, wherein this Court has held that death of tenant heirs inheriting tenancy as tenants in common are joint tenants quo landlord. It was further held that service of notice or one heir sufficient to determine entire tenancy against such person who was in actual possession maintainable without other being made parties. It is submitted that on the basis of aforesaid position of law the petition filed by the petitioner has no substance and the same be dismissed.