1 CWP No.7324.2005 Hund Raj Vs. Judge, Rent Tribunal, Kota & Others IN THE HIGH COURT OF JJDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Civil Writ Petition No.7324 of 2005. Hund Raj son of Shri Bheek Chand Versus The Judge, Rent Tribunal, Kota and Others Date of Order :::: 30/07/2009 Hon'ble Mr. Justice Dalip Singh Mr. Shailesh Prakash Sharma, Counsel for the Petitioner Mr. Ajay Tantia, Counsel for the Respondents Per Court : Heard learned counsel for the parties. This writ petition has been filed by the plaintiff- landlord against the order dated 24.08.2005 (Annexure-6) by which the application filed by the respondents, who are the sons of Shri Bajrang Lal, the erstwhile tenant, who died during the pendency of the proceedings, under Order 9 Rule 13 of the Code of Civil Procedure, 1908 has been allowed and the learned trial Court has permitted that the names are to be substituted in place of deceased defendant-tenant Shri Bajrang Lal. 2 CWP No.7324.2005 Hund Raj Vs. Judge, Rent Tribunal, Kota & Others Facts, in brief relevant for consideration of this petition are that a suit was filed by the plaintiff-petitioner for eviction and arrears of rent in which after the service upon the defendant, which is disputed, the learned trial Court passed an ex-parte decree on 23.01.2004 for eviction as well as arrears of rent. In pursuance of the aforesaid decree the possession of the premises came to be delivered to the landlord in execution on 25.05.2004, as is evident from Annexure-2, the proceedings, which have been filed before this Court. As per the aforesaid proceedings before the Nazir, who went to execute the decree the tenant judgment debtor Bajrang Lal not only handed-over the possession, but also deposited the decreetal amount towards the arrears of rent etc., amounting to Rs.6,720/-. Soon thereafter the tenant-defendant Bajrang Lal moved an application under Order 9 Rule 13, C.P.C. for setting aside the ex-parte decree contending therein that the service of the summon has not been affected on him and he came to know about the passing of the decree dated 23.01.2004 only on 25.05.2004 when the proceedings for 3 CWP No.7324.2005 Hund Raj Vs. Judge, Rent Tribunal, Kota & Others execution of the decree took place and possession was taken from him in execution of the decree. During the pendency of the application under Order 9 Rule 13, C.P.C., the tenant-defendant Bajrang Lal died on 17.06.2005 and as such an application for substitution on behalf of the legal representatives of the deceased, including the respondent Nos.2 and 3 and other heirs came to be filed on 18.07.2005. The present order has been passed allowing the said application to the extent that the respondent Nos.2 and 3, who are the sons of the deceased Bajrang Lal have been substituted in place of deceased Bajrang Lal in the proceedings under Order 9 Rule 13, C.P.C. for setting aside the ex-parte decree for eviction and arrears of rent dated 23.01.2004. The submission of the learned counsel for the petitioner is that the provisions of Section 2 Clause (i) (ii) & (b) of the Act of 2001, relating to the definition of tenant which are applicable in so far as the proceedings governed by the Rajasthan Rent Control Act, 2001 are concerned, defines the tenant, wherein it has been provided that in the case of death of the tenant in a commercial premises surviving spouse, son, daughter, mother and father, who had been 4 CWP No.7324.2005 Hund Raj Vs. Judge, Rent Tribunal, Kota & Others carrying business with him in such premises as member of his family up-to his death. The said clause reads as under : (b) in case of premises let out for commercial or business purposes, his surviving spouse, son, daughter, mother and father who had been ordinarily carrying on business with him in such premises as member of his family upto his death; and It is submitted by the learned counsel for the petitioner that so far as the present case is concerned, it is not in dispute that the deceased-tenant was not in possession of the premises on the date of his death and, therefore, the applicant, including the respondents were not carrying on business in the premises as member of his family up-to his death (emphasis supplied). Learned counsel laid great stress on the word up- to-his death and contended that in the facts and circumstances of the present case the applicants, who admittedly were not in possession of the premises would not be said to be carrying on business in the premises up-to the death of the deceased tenant Bajrang Lal. 5 CWP No.7324.2005 Hund Raj Vs. Judge, Rent Tribunal, Kota & Others Learned counsel for the respondents, on the other hand, contended that while it is true that the possession of the premises was not with the deceased Bajrang Lal tenant. However, in the facts and circumstances of the present case it should be construed that the present petitioner, who had been carrying on business on the premises, along with their father, who is said to be carrying on business in the premises, possession of which had been taken from the deceased tenant in execution of the decree prior to his death. It is submitted that the word up-to-his death should be construed liberally in the matter. I have given my thoughtful consideration to the aforesaid submissions and I am unable to accept the plea of the learned counsel for the respondents. The legislature has very categorically while framing the definition of the tenant, as contained in Clause b of Section 2 of the Act quoted above has made it imperative for affording the benefit of the act to any surviving the heirs of the deceased tenant, who was tenant carrying on business in a commercial premises that such heirs being the son etc. as in the case of the present respondent should have been carrying on business in the premises as a member of the 6 CWP No.7324.2005 Hund Raj Vs. Judge, Rent Tribunal, Kota & Others family of the deceased tenant up-to-his death. Admittedly, in this case the respondents despite the fact that they were the sons of the deceased and the members of the family of the deceased and were as per the case of the respondents carrying on business with their father in the premises in dispute prior to the eviction the fact remains they were not carrying on business in the premises with the deceased up-to-his death on 17.06.2005 having been dispossessed on 25.05.2004. In the facts and circumstances of the present case, therefore, the submissions of the learned counsel for the petitioner is liable to be accepted in the light of the aforesaid definition and the impugned order allowing the application dated 18.07.2005 impleading the respondents as party to the application under Order 9 Rule 13, C.P.C., is accordingly dismissed. Consequently, the writ petition is allowed. The impugned order dated 24.08.2005 is set aside. (Dalip Singh) J. ashok/