MOHD KASAM Vs. GHASI LAL

JUDGEMENT

(1.) FACTS giving rise to this second appeal under Section 100 C. P. C. briefly narrated are that respondent plaintiff filed a civil suit against the original tenant Mohd. Adam Kureshi, on 1. 8. 1975, for eviction and arrears of rent with the averments that the tenant committed default in payment of rent from 1. 2. 1973 and the suit shop was required by the plaintiff. The defendant in his written statement while admitting his tenancy denied the ground of eviction. Issues were framed and after recording the evidence of the parties, decree of eviction vide judgement dated 10. 9. 1997 was passed on the ground that requirement of plaintiff was reasonable and bonafide and comparative hardship would be caused to the plaintiff in case decree of eviction is not passed.

(2.) FIRST regular Appeal No. 40/97, filed by the original Mohd. Adam Kureshi was dismissed by learned Additional District Judge No. 1, Kota, vide impugned judgment dated 8. 7. 2002, on the ground that the appellant-tenant died during the pendency of appeal on 18. 12. 2001 and his legal heirs being not tenant, under the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as the `act') are not entitled to any relief and thus this appeal was dismissed as abated. Hence, this second appeal by sons and daughters of the original tenant as his legal-heirs.

(3.) THE next submission with regard to enquiry has also got no force. According to Order XXII Rule 5 C. P. C. enquiry as envisaged that where a question arises as to whether any person is or is not the legal representative of the deceased plaintiff or a deceased defendant such question shall be determined by the Court. It is also provided that where such question arises before an Appellate Court that Court may, before determining the question, direct any subordinate court to try the question and to return the records together with evidence. Learned counsel for the appellants relied upon Mahendra Kumar vs. Lalchand & Anr. (5), wherein it was held that Court was required to determine the question of legal representative, under order XXII Rule 5 C. P. C. in a case where such dispute arises. In the instant case question of any such enquiry never arose as the first appellate court categorically held that neither the appellants averred in their application filed under Order XXII Rule 4 C. P. C. that all or any of them were ordinarily carrying on business with their father in the suit shop as member of his family upto his death, nor the original tenant pleaded any such fact in his written statement, rather the original tenant in his statement stated otherwise and thus the present appellants were not the tenants under the Act. I have gone through the record. THE written statement was filed in February 1976 and there is no such pleading that he is doing business alongwith any of his family members. Rather in additional para 2 of the written statement it was specifically pleaded that the defendant himself carries on his business for his livelihood in the suit shop. THE statement of the original tenant was recorded on 6. 5. 1994. While admitting himself as tenant for the last 28 to 30 years, it was deposed by him that he was carrying on his business in the suit shop for his livelihood. In cross-examination, on 5. 7. 1995, he pleaded that all his four sons were carrying on their separate business. All of them have got nine shops, out of nine shops, seven are on rent and in remaining two shops his sons carried on their business. It was further stated by him that he resides separately from his sons. No such plea was taken in first appeal filed by the original tenant that all his sons are carrying on their business with him in the suit shop and the most important aspect is that there is no such averments made by the present appellants in their application to implead them his legal heirs. In view of these facts, there was no question of conducting any enquiry on this point as to whether all the appellants or any of them were carrying on their business in the suit shop alongwith their father as member of his family upto his death. Thus the findings of the learned first appellate court can not be said to be perverse and no substantial question of law is involved in this appeal. Hence this second appeal is dismissed at the admission stage alongwith second stay application. .