CR No.1398 of 2011 (O&M) -1- CR No.1399 of 2011 (O&M) ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) CR No.1398 of 2011 (O&M) Date of decision: .05.2011. Om Parkash ...Petitioner Versus Ram Kumar and others ...Respondents (2) CR No.1399 of 2011 (O&M) Date of decision: .05.2011. Om Parkash ...Petitioner Versus Ram Kumar and another ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Puneet Kumar Jindal, Advocate, for the petitioner. Mr. Sudeep Mahajan, Advocate, for the respondents. ***** Rakesh Kumar Jain, J. This order shall dispose of two revision petitions bearing CR No.1398 of 2011 titled as `Om Parkash V. Ram Kumar and others' and CR No.1399 of 2011 titled as `Om Parkash V. Ram Kumar and another' as CR No.1399 of 2011 was ordered by this Court to be heard along with CR No.1398 of 2011 vide its order dated 20.04.2011. In short, the facts of CR No.1398 of 2011 are that Ram Kumar and Kanwal Swaroop (respondent Nos.1 and 2 herein), both sons of late Shri Ved Parkash, filed an eviction petition No.55 of 2003 against Satpal son of Naranjan Dass (respondent No.3 herein) under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”] for his ejectment from shop bearing CR No.1398 of 2011 (O&M) -2- CR No.1399 of 2011 (O&M) ***** No.NK-107, situated in Bazar Nauhrian, Jalandhar [for short “demised premises] which was under the tenancy of respondent No.3 @ `100/- per month. It was alleged that father of respondent No.3 took the demised premises on rent from father of the landlords initially @ `12/- per month. After the death of father of respondent No.3, he became a tenant under the father of the landlords under the same terms and conditions. Later on, father of the landlords also expired and they became the landlords. The rent was enhanced from time to time to the extent of `100/- per month. They filed the eviction petition, inter alia, on the grounds of non-payment of rent @ `100/- w.e.f. 01.01.1996, the demised premises was required for their bona fide necessity, it has become unfit and unsafe for human habitation and also because of nuisance. The respondent No.3 appeared on notice and filed his written statement. He denied the rate of rent but admitted that the demised premises was taken on rent by his father @ `12/- per month. He tendered the rent in Court amounting to `1,140/- and interest of `280/- along with costs as assessed. The landlords filed rejoinder and after the pleadings were over, six issues were framed by the learned Rent Controller on 25.04.2005. Thereafter, respondent No.3 did not turn up to contest the eviction petition and was proceeded against ex-parte. The landlords, in support of their case, examined themselves as PW3 and PW1 respectively, Lalit Shori as PW2 and Devanand as PW4. They also suffered a statement that they do not want to press the grounds of dilapidated condition and source of nuisance. The learned Rent Controller decided issues Nos.1 and 2 together and held that though the rent was assessed @ `100/- per month but the tenant tendered the rent `12/- per month, therefore, the tender was short and hence he was liable to be evicted from the demised premises. Issue No.3 was also decided in favour of the landlords by holding that the demised premises is required for their bona fide necessity. Ultimately, vide order dated 11.10.2007, the learned Rent Controller passed the eviction order and directed the tenant/respondent No.3 to vacate the demised premises within 2 months. When the landlords filed execution of the order of the learned Rent Controller, which became final as it was not challenged further, an application was filed by the present petitioner Om Parkash in which he alleged that his father was doing the CR No.1398 of 2011 (O&M) -3- CR No.1399 of 2011 (O&M) ***** business of `shoe maker' in the demised premises and he was assisting him in it during his life time. He alleged that respondent No.3 was inimical towards him who had got suffered an ex-parte ejectment order to the detriment of his interest. This objection/application was contested by the landlords which has been dismissed by the learned Additional Civil Judge (Senior Division), Jalandhar as an Executing Court vide the impugned order dated 16.02.2011 holding that the petitioner has never been in possession of the demised premises as he failed in Civil Suit No.327 of 2009 which was filed by him against the landlords for injunction. It was also observed that the petitioner has failed to place on record any rent receipt regarding payment of rent by him to the father of the landlords or even electricity bill regarding payment of electricity charges or any documentary evidence in order to prove that he is doing the shoe making business in the demised premises after the death of his father. In this background, the present revision petition has now been preferred by the objector Om Parkash before this Court. The facts of CR No.1399 of 2011 are that Om Parkash filed the Civil Suit No.327 of 2009 for permanent injunction in order to restrain the landlords from taking forcible possession of the demised premises. His suit was hotly contested by the landlords. While deciding issue No.1 with regard to permanent injunction to be granted or not, the Court below had observed that the petitioner Om Parkash had admitted that after the death of his father, he never paid the rent to the defendants (landlords). He also admitted that he was living in the same house but the rooms were different. It was observed that pendency of the eviction petition dated 19.08.2003, which culminated into ejectment of Satpal vide order dated 11.10.2007 Ex.D1, cannot be said to be not in his knowledge as he was living with his brother in the same house. It was also observed that the ejectment petition was filed on 19.08.2003 and it remained pending for 4 years as it was allowed on 11.10.2007 and that Satpal (respondent No.3) had also tendered the rent though @ `12/- per month instead of `100/- per month as claimed by the landlords. In nut shell, the learned Civil Judge (Junior Division), Jalandhar vide its order dated 08.06.2010 dismissed the suit holding that Om Parkash was not in possession of the demised premises CR No.1398 of 2011 (O&M) -4- CR No.1399 of 2011 (O&M) ***** and cannot claim injunction. Against the said judgment and decree, the petitioner Om Parkash filed appeal before the First Appellate Court along with an application for stay which according to the learned counsel for the petitioner has not been decided so far. Thus, this is the cause of action in the present revision petition. While arguing CR No.1398 of 2011, learned counsel for the petitioner has relied upon a decision of the Supreme Court in the case of Textile Association (India) Bombay Unit V. Balmohan Gopal Kurup and another, (1990) 4 Supreme Court Cases 700, a Division Bench of the Calcutta High Court in the case of Jaharlal Saha and others V. Pradip Saha and others, 2006(2) Rent Law Reporter 117 and a Single Bench judgment of the Bombay High Court in the case of Ramesh Shankar Kale V. Madhav Bhimshankar Wadnere, 2001(2) R.C.R. (Rent) 438. Learned counsel for the petitioner has submitted that the tenancy of the non-residential premises is inheritable and after the death of his father, he too inherited the tenancy rights, but the landlords have cleverly impleaded only his brother Satpal (respondent No.3) and did not implead him as a party in the eviction petition and obtained an ex-parte order of eviction on the twin grounds of failure of payment of rent and bona fide necessity. He also submitted that had his brother Satpal been taking care of his interest also and was contesting the eviction petition, then he perhaps would not have been entitled to be impleaded as a party in terms of the judgment of the Supreme Court in the case of Mst. Suryya Begum V. Mohd. Usman, 1991(2) R.C.R. (Rent) 312, but since he was negligent and rather inimical towards the petitioner, therefore, he was a necessary party to have been impleaded in the eviction petition being one of the sons of the deceased tenant. On the contrary, learned counsel for the respondents has submitted that in case where the tenant in occupation of the non-residential premises died leaving behind a number of heirs and only one of the heirs is continuing in occupation of premises and carrying on business, in that circumstance it can be inferred that other heirs had surrendered their tenancy rights and the eviction order passed against the said heir, who was in occupation of the demised premises, cannot be challenged by other heirs at the time of execution. In this CR No.1398 of 2011 (O&M) -5- CR No.1399 of 2011 (O&M) ***** regard, he has relied upon a decision of the Supreme Court in the case of Pushpa Rani V. Bhagwanti Devi and another, 1994(2) Rent Control Reporter 298. He also submitted that all the heirs of Naranjan Dass were tenants in common as the tenancy was not divisible, therefore, if the eviction petition is contested by one of the heirs, it would be deemed to have been contested on behalf of the others as well. In this regard, he has relied upon a decision of the Supreme Court in the case of H.C. Pandey V. G.C.Paul, AIR 1989 Supreme Court 1470 and a Single Bench judgment of this Court in the case of Devinder Sharma and another V. Pritam Kaur and others, 1993(1) RLR 247. Besides this, he has also relied upon a decision of the Supreme Court in the case of Ashok Chintaman Juker V. Kishore Pandurang Mantri, 2001(1) R.C.R. (Rent) 581. I have heard both the learned counsel for the parties and perused the record in respect of CR No.1398 of 2011. The most interesting feature in the facts in hand and the judgments which have been relied upon by both the learned counsel for the parties is about the possession of the petitioner over the demised premises. In Textile Association (India) Bombay Unit's case (supra), relied upon by learned counsel for the petitioner, the claim of the objector was that he was one of the tenants living in the premises at the time of death of his father. The Trial Court had found that he was also one of the tenants who lived along with his father. Similarly, in Ramesh Shankar Kale's case (supra), the petitioner in that case was also residing with the deceased tenant, meaning thereby he was in possession but was not made a party, whereas in Pushpa Rani's case (supra) relied upon by learned counsel for the respondents, only one of the heirs was in occupation of the demised premises and carrying on business and the Supreme Court has, thus, held that the presumption is that the other heirs must have surrendered their rights of tenancy on the principle of implied surrender. In the present case as well, the distinguishable feature is that the petitioner was not found in possession of the demised premises even by the Civil Court especially in a suit for injunction where the Court has to only decide about the possession of the plaintiff/petitioner and has also observed that he had never paid any rent CR No.1398 of 2011 (O&M) -6- CR No.1399 of 2011 (O&M) ***** either to the father of the landlords or to the present landlords. Thus, the question arises as to whether an order of eviction passed against one of the heirs of the deceased tenant, who was in possession of the demised premises, can be called into question in execution by the other heir of the deceased tenant who is not found to be in possession on the ground that he was a necessary party to be impleaded. In my view, the answer to this question is in negative in view of the decision of the Supreme Court in the case of Pushpa Rani's case (supra) which squarely applies to the facts and circumstances of the present case. It has been held in H.C. Pandey's case (supra) and Devinder Sharma and another's case (supra) that the incidence of the tenancy are the same as those enjoyed by the original tenant and a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefore. In other words, the heirs succeed to the tenancy as joint tenants. In the present case, the respondent No.3 contested the eviction petition, filed written statement, tendered rent though at his own rates and after framing of issues he did not appear for the reasons best known to him and the learned Rent Controller, after taking into account the evidence led by the landlords, passed the eviction order. In the impugned order, it has also been found that the petitioner was not in possession of the demised premises, but he is living in the same house along with respondent No.3 though in separate rooms. It has also been observed that the eviction petition has been decided after a period of four years and the petitioner had never paid any rent to the landlords or their father in order to bring a relationship between them. In these circumstances, the only inference can be drawn is that the petitioner cannot claim any independent right of tenancy in the demised premises in terms of the decision of the Supreme Court in the case of Textile Association (India) Bombay Unit (supra) which is apparently distinguishable as in that case the finding was recorded that the said objector/heir was also living in the same premises and had not surrendered his implied tenancy rights. In view of the above discussion, this revision petition is found to be without any merit and as such, the same is hereby dismissed. In respect of CR No.1399 of 2011, the zimni orders have been CR No.1398 of 2011 (O&M) -7- CR No.1399 of 2011 (O&M) ***** produced by the petitioner as Annexure P-4 from which I have found that on 02.11.2010, the lower Court record was received and the case was fixed for 23.11.2010 for arguments and when on 23.11.2010 it was listed for arguments, learned counsel for the petitioner himself sought an adjournment and the case was adjourned to 20.01.2011. On that date, it was not listed and was adjourned to 28.03.2011 for arguments. During the course of hearing, learned counsel for the petitioner has disclosed that on 28.03.2011, the case was again adjourned to 26.07.2011 as it was not listed for arguments. The only prayer made in this revision petition is for the direction to the learned First Appellate Court to decide the application for stay. After hearing learned counsel for the petitioner, I am of the view that there is no fault of the First Appellate Court in this regard, rather the fault is of the learned counsel for the petitioner who did not argue the case on 23.11.2010 and sought an adjournment. Moreover, after adjournment of the case on 28.03.2011 for 26.07.2011, he did not file any application for preponement of hearing and as a matter of fact has tried to keep this case pending before this Court so as to take advantage in the other CR No.1398 of 2011. Had the petitioner been interested in disposal of his application for stay which has been adjourned by the learned First Appellate Court on 28.03.2011 for 26.07.2011, he would have definitely filed an application for preponement which could have been easily granted by the First Appellate Court on the ground that the case has not been listed on 28.03.2011, but the said course was not adopted and in view thereof, no relief can be granted to the petitioner in this case and as such, this revision petition is also hereby dismissed. The net result of the entire discussion is that both the revision petitions are found to be without any merit and as such, the same are hereby dismissed, however, without any order as to costs. A photocopy of this order be placed on the file of another connected case. May , 2011 (Rakesh Kumar Jain ) vinod* Judge