IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 2041 of 2009. 1. Smt. Mridula Chaube, W/O Sh. Prasann Kumar Chaube, R/O P.O. Box No. 4627, Weatherfort Building, Near Mall of Emirates,s Dubai (U.A.E.), presently residing at 34/7, Pleasant Valley, Dhak Patti, Rajpur, Dehradun. 2. Smt. Neena Raina W/O Commandant T.N.Raina, D/O Late Smt. Snehlata & Sh. Radhey Shyam Kukreti, R/O 4/5, United India Colony, 6, Cross Street, Flat No. 3B, Codambakkam, Chennai- 600024, presently residing at 28, Darshani Gate District Dehradun. … Petitioners. Vs. 1. Smt. Shshila Mittal, W/O Sh. Shanti Swaroop Mittal, R/O 160, Khurbura Mohalla, Dehradun. 2. Sh. Anand Kukreti, S/O Late Sh. Radhey Shyam Kukreti, R/O 28-Darshani Gate, Dehradun, another address Plot No. 36 (New No. 66/36/1) Lakhibagh, Dehradun, District Dehradun. …Respondents. . Mr.Ramji Srivastava, Advocate, learned counsel for the petitioners. Mr. Dharmendra Barthwal, Advocate, learned counsel for the respondents. Date December 08, 2009. Hon’ble B.S.Verma, J. Heard learned counsel for the parties and perused the record. Learned counsel for the respondents has submitted that the writ petition be disposed of finally at the admission stage without inviting counter affidavit. By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the impugned judgment and order dated 24-11-2009 ( Annexure-8 to the petition) passed by learned District Judge, Dehradun in Civil Revision No. 80 of 2009 Sri Sushila Mittal Vs. Sri Anand Kukreti and others. The petitioners have also sought a writ of mandamus directing the trial court to allow the petitioners to be impleaded as parties in the proceedings of Original Suit No. 206 of 2004. 2 Brief facts giving rise to the present writ petition are that Original Suit No. 206 of 2004 Smt. Sushila Mittal Vs. Anand Kukreti was filed by the respondent no.1 in capacity of landlady of the disputed premises against the respondent no.2 Anand Kukreti (defendant) for ejectment of the tenant from the disputed premises as well as for recovery of arrears of rent as mentioned in the plaint. During the pendency of the suit, an application (paper no. 93-C) was moved by Smt. Mridula Chaube and Smt. Neena Raina (petitioners in this petition) under Order 1, Rule 10(2) read with Section 151 of the CPC to implead them in the suit on the ground that they are also joint tenants of the disputed premises through their late mother Smt. Snehlata Kukreti, who was the actual tenant. This fact is not disputed that earlier Smt. Snehlata Kukreti, the mother of Anand Kukreti was the tenant after the death of her husband late Rahey Shyam Kukreti. Objections were filed by the plaintiff-respondent no.1 (paper no. 97-C2) and in the objections, plea was raised that the tenancy of the defendant is based on a contract. The learned trial court-I Additional Civil Judge (Junior Division) Dehradun vide order dated 13-10-2009, allowed the application for impleadment subject to payment of costs of Rs. 600/-. Aggrieved by the said order, plaintiff-respondent no.1 preferred a revision bearing Civil Revision No. 80 of 2009 before the learned District Judge, which was ultimately allowed by the revisional court vide order dated 24-11-2009 and the impleadment application filed by the petitioners has been rejected. Having heard learned counsel for the parties and after perusal of the record including the order impugned, I find that this fact is not disputed that the original tenant of the disputed premises was late Sri Radhey Shyam Kukreti and after his death Smt. Snethlata 3 Kukreti had occupied the premises in question as tenant. After the death of Snehlata Kukreti, the respondent no. 2 Anand Kukreti continued to be a tenant. According to the petitioners, the accommodation in question is a commercial one. This was not a residential accommodation at the time of death of Snehlata Kukreti. The applicant-petitioners are joint tenants and both were not impleaded at the time of filing of the suit for ejectment by the landlady Sushila Mittal. It has been contended by the learned counsel for the petitioners that the finding recorded by the learned District Judge is perverse holding that the tenancy between the plaintiff-landlady and the defendant-respondent no. 2 is contractual without any cogent evidence on record. By a perusal of the order impugned dated 24-11-2009 it is obvious that no such agreement was filed either before the trial court i.e. Additional Civil Judge (Junior Division) or the revisional court to show that the tenancy was contractual between the landlady and Anand Kukreti. This fact is also not disputed that earlier Smt. Snehlata Kukreeti was the tenant in the premises in question and the respondent no.2 Anand Kukreti had occupied the premises in question after her death. The learned counsel appearing for the respondent-plaintiff has argued that the status of the legal heirs of the original tenant after the death of such tenant becomes that of joint tenants. Learned counsel for the plaintiff-respondent no.1 further argued that there is no such pleading in the application for impleadment that the sitting tenant is in collusion with the landlady, therefore, in the case at hand the impleadment application ought to have been rejected and the same has been rightly rejected by the learned revisional court. In support of his contention, learned counsel has placed reliance in the case of Pankaj 4 Bhatt Vs. Prescribed Authority and others [2008(1) Uttaranchal Cases 249]. Learned counsel for the respondent no.1-plaintiff further argued that the petitioners-applicants, though they are heirs of the original tenant, but they cannot be termed as co-tenants because after their marriage they are living outside the State. Learned counsel for the respondent no. 1 has placed reliance upon the case of Smt. Sudha Vs. Manoj Kumar and another [2009(2) U.D., 398] wherein this Court has affirmed the finding of the Prescribed Authority in dismissing the application of the petitioner for her impleadment as co-tenant. In that case also, the applicant-petitioner Smt. Sudha was the married daughter of the original tenant, who was residing at another place. Even otherwise, I am of the view that if a proceeding is drawn against one of the joint tenants, it is presumed that the interest of other joint tenants is represented by the contesting joint tenant. In the case of Smt. Pooja Gupta Vs. Pushkar Kumar and another [2008(72) ALR, 762 (Allahabad High court)], it has been held by the Allahabad High Court that after the death of original tenant, tenancy rights devolve on the heirs jointly and any action of joint tenant binds other joint tenants if not impleaded. Learned counsel for the petitioners has contended that the respondent no.1 filed the civil suit for ejectment of respondent no.2 in collusion with the defendant-respondent no.2. This argument of the learned counsel for the petitioners is not tenable for the simple reason that no such pleading had been taken by the petitioners in their application under Order 1, Rule 10(2) read with Section 151 C.P.C. (copy Annexure-4 to the petition) that the suit has been filed by the plaintiff in collusion with the defendant-respondent no.2, rather they have contended that they are joint-tenants. They have specifically stated in para 7 that they are residing out of Dehradun. 5 For what has been stated above, I find no perversity in the impugned order passed by the learned revisional court insofar as the impleadment application of the petitioners (paper no. 93-C) has been rejected. However, so far as the finding of the revisional court that the tenancy between the plaintiff and the respondent no. 2 is contractual is concerned, I am of the considered view that this finding is neither based on the pleadings of the plaint nor on any iota of evidence before the trial court. It appears that the plaintiff while resisting the impleadment application moved under Order 1, Rule 10(2) of the C.P.C. by the petitioners stated in her objection that the tenancy is contractual, but no such pleading has been made by the plaintiff- respondent no. 1 and even no such plea has been raised in the written statement filed by the respondent no.2. Consequently, the finding of contractual tenancy between the plaintiff and the defendant recorded by the revisional court is perverse and not tenable in the eye of law. The writ petition is liable to be allowed partly. The writ petition is partly allowed. The finding of the revisional court holding that the case of the plaintiff is based on the contractual tenancy with the sitting tenant-defendant is set aside. Rest of the judgment passed by the revisional court is maintained insofar as it deals with the dismissal of the impleadment application of the petitioners. Costs easy. (B.S.Verma,J.) RCP 6