ASHA GUPTA Vs. SIPRA DUTTA

JUDGEMENT

(1.) THIS appeal from appellate decree at the instance of two of the substituted heirs and legal representatives of the sole deceased defendant tenant arises out of a suit for eviction admittedly governed by the provisions of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act ). The tenant defendant having died pending the suit, the plaintiff landlord brought on record by substitution well within the time prescribed by law, such of his heirs and legal representatives as were ordinarily residing with the tenant defendant at the time of his death. The plaintiff landlord however left out two of the sons and two of the daughters of the deceased tenant defendant not so residing with him at the time of his death. The heirs and legal representatives so substituted made all attempts to delay the proceeding in various manners and on the expiry of 90 days from the date of death of the tenant defendant raised an objection that some of the heirs and legal representatives of the deceased tenant defendant having been left out and the time for substituting them having expired, the suit has abated not only against them but as a whole. The objection so raised prevailed with the learned Subordinate judge in the trial court who by his order dated October 3, 1972, disposed of the suit by recording abatement of the suit as a whole.

(2.) THE plaintiff landlord preferred an appeal. The learned Judge in the court of appeal below on March 14, 1973, set aside the decision of the trial court in terms of the judgment delivered by him and remanded the suit for trial. He held that on the provisions of the said Act such of the heirs and legal representatives of the tenant defendant as were not ordinarily residing with the tenant defendant at the time of his death and as such were left out from substitution, are not necessary parties to the suit and were not required to be brought on record by substitution at all. So he held that the suit had not abated and the substitution as effected by the plaintiff landlord is sufficient and is in accordance with law. The learned judge held as such in view of the amended definition of the tenant as in section 2 (h) of the said Act on its 1965 amendment.

(3.) TWO of the substituted heirs and legal representatives have now preferred the above second appeal to this court disputing the correctness of the decision of the lower appellate court.