1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Writ Petition No.3193 of 2009 Kisanchand s/o Choithram Kewalramani, Aged about 72 years, Occupation Business, Business at Krishna Cloth Centre, Opp. Keteshwar Temple, Jagnath Road, Gandhibagh, Nagpur, R/o Block No.9, Sant Bahuram Road, Behind Dipak Medical, Jaripatka, Nagpur. ... Petitioner Versus Smt. Sitabai wd/o Narayanji Atkar, Aged about 86 years, Occupation Household, Resident of Opp. Keteshwar Temple, Jagnath Road, Gandhibagh, Nagpur, (Expired), through Smt. Indubai w/o Namdeorao Shende, Aged about 72 years, Occupation Housewife, R/o Keteshwar Temple, Jagnath Road, Gandhibagh, Nagpur, (Entitlement under challenge). ... Respondent Shri A. Shelat, Advocate for Petitioner. CORAM : R.C. Chavan, J. DATE : 4th August, 2009 2 Oral Order : 1. This petition by the tenant is directed against the order passed by the learned District Judge-10, Nagpur, rejecting the tenant’s appeal under Section 26 of the Provincial Small Causes Court Act, as also the application for converting the appeal into revision. 2. The landlord died during the pendency of the proceedings for ejectment of the tenant under the Rent Control Act. The landlord’s daughter applied for being brought as legal representative of deceased-landlord on record. This application was opposed by the tenant. The learned Judge of the Small Cause Court, Nagpur, however, allowed the application and directed necessary amendments in the plaint. This was challenged by the tenant by preferring Misc.Civil Appeal No.376 of 2008, which, as already recounted, was disposed of by the learned District Judge, Nagpur, by his impugned order. 3. I have heard the learned counsel for the petitioner. 4. The learned counsel for the petitioner first submitted that under Section 26-A of the Provincial Small Cause Courts Act, an appeal shall lie from a decree or order made by the Court of Small Cause exercising jurisdiction under Section 26 of the Act to the District Court. Therefore, he submitted that every order of the Court of Small Cause is appelable. 3 5. Now this contention of the learned counsel for the petitioner would open a flood-gate of appeals to the District Court, since even an order rejecting the adjournment or granting the adjournment would be challenged before the District Court. The word ‘order’ in sub-section (1) of Section 26-A of the Provincial Small Cause Courts Act has to be read as referring to an order from which an appeal lies under Order 43 of the Code of Civil Procedure and this order permitting the legal representative to be brought on record is not one which could have been challenged under Order 43 of the Code of Civil Procedure. If it could not have challenged by filing an appeal against an order, there is absolutely no warrant in interfering with such an order in a small cause suit, which is required to be disposed of with greater expedition, since in such a suit, the issues involved are few. 6. The learned counsel for the petitioner next submitted that sub-section (4) of Section 26-A of the Provincial Small Cause Courts Act permits a District Judge to call for the case for satisfying himself that a decree or an order was properly made and pass such orders with respect thereto as he thinks fit. Thus, this sub-section entitles a District Judge to exercise revisional jurisdiction. Now when under the Code of Civil Procedure itself the revisions against interlocutory orders have been barred, permitting such revision in a small cause suit would be improper. In any case, there is nothing wrong in the learned District 4 judge’s refusal to treat the appeal as revision. 7. The learned counsel for the petitioner had a very ingenuous submission as regards the entitlement of legal representative of the deceased-landlord to be impleaded in the suit itself. Relying on a judgment of the Supreme Court in M/s. Knhiya Singh Santok Singh and others v. Kartar Singh, reported at 2009 SAR (Civil) 412, the learned counsel submitted that substitution of legal representatives of the parties in rent suits has to be decided with reference to the provisions in the Rent Act and, therefore, unless the plaintiff can show that he fits in the definition of ‘landlord’ under the relevant Rent Act or the defendant fits in the definition of ‘tenant’ under the relevant Rent Act, such substitution cannot taken place. The judgment relied on by the learned counsel for the petitioner dealt with the question of substitution of legal representatives of the tenant. In that context, the Court referred to the question of applicability of the provisions of Rajasthan Rent Act. Now it has to be seen that the provisions as to the legal representatives of deceased-tenant are different from those of deceased-landlord. Sub-section (4) of Section 7 of the Maharashtra Rent Control Act defines ‘legal representative’ as one defined in the Code of Civil Procedure. As far as the tenant is concerned, there is a specific provision when a tenant dies. This is contained in clause (d) of sub-section (15) of Section 7 of the Maharashtra Rent Control Act, which reads as under : 5 “(d) in relation to any premises, when the tenant dies, whether the death occurred before or after the commencement of this Act, any member of the tenant’s family, who, -- (i) where they are let for residence, is residing, or (ii) where they are let for education, business, trade or storage, is using the premises for any such purpose, with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenant, as may be decided, in the absence of agreement, by the Court.” It would be seen that any heir of the tenant is not entitled to be impleaded as tenant. It is specified that if any member of the tenant’s family, who is actually residing in the premises or using the premises for business purposes with the tenant at the time of tenant’s death, or, in absence of such member, any heir of the deceased-tenant, as may be decided, or in absence of agreement, by the Court, is entitled to be impleaded as tenant. This has to be contrasted with the definition of ‘landlord’ in sub-section (3) of Section 7 of the Maharashtra Rent Control Act, which entitles impleadment of any person, who is for the time being receiving or received the rent. Now, there can be no doubt that upon the death of the landlord, his daughter would be entitled to receive the rent, since 6 she would inherit the ownership of the property. 8. The learned counsel for the petitioner submitted that the application at Exhibit 10 before the Small Cause Court does not spell out that the legal representative of deceased-landlord was entitled to receive rent. Now this contention is not permissible. The applicant had categorically stated that there was no other representative of the deceased-landlord and, therefore, wanted to get her name substituted in place of deceased-landlord. In this case, the tenant could not show that there is someone else, who could receive the rent. Such application could not have been resisted by the tenant. 9. In view of this, the impugned order does not call for interference. The petition is, therefore, dismissed. Judge. Pdl.