W5@ / HIGHm/ COURT DF CHHATTISGARH AT BILASPUR /// WRIT PETITION 1227) No. 288,1 £2009 PETITIONERS Munnalal Soni a11d others V Versus Gopinath Saraf ‘ RESPONDENT ORDER Post fOI‘Z) -8—2009 sh. N.K.Agarwal Judge ah ] 1 HKEH COURT OF CHHA'mSGARH AT BILASPUR i WRIT PETITION (227) No. 2881y2009 PETITiONERs 1. Munnalal Soni Son of, Late Jagannath Prasad, aged about 62 vears Smt. Savitri Soni wife of Munnalal Soni, aged abbut, 57 years; Gaurav Soni so of Munnalal Som, aged d29 years, All res1dents of Gondpara, Tahs11 and Dlstrlct Balaepur (CG) Versus ESPbNDEN'r : Gopmath Saraf Son of Late NON-APPLICANT Laxm1 Prasad Saraf aged about '60 years, re51dent of Gondpara, Tahsil and Dist‘ict Bilaspur (CG) [Single Bench: Hon'ble Mr. N.K. A,garwal, JJ Present; : Shri Shree Kumar Agrawal, Sr. Advocate with Shri Pawan Kesharwani, Advocate, for the petitioners. Shri R.K. Sharma, Advocate for the respondent. ORDER r (21-8— 2009) The instant petition is directed against the order dated 23-8-; V2001 whereby the application med underOrder 22 Rule 3 of I C.P.C. by the petitioners has been rejected by the IXth Civil Judge Class II, Bilaspur, in Civil Suit No. 83-A/2001. V Brief facts of the case according to the petitioners are that? late Nitin Kumar, son of petitioner No 1 was inducted as a tenant in the suit shop by the respondent on 1 7 1997 On 17 12 2000 the respondent forcefully dispossessed Nitin Kumar trom the suit shop Thereafter, Nitin Kumar instituted a suit before the trial Court Seeking relief of mandatory injunction for restoration of possession. During pendency l of the suit; Nitin Kumar diedi VAn application under Order 22 Rule 3 of C.P.C. has been moved by the petitioners for their substitution inplace of deceased Nitin Kumar as his legal representatives. Learned trial Court vide iorder impugneddis’missed the application holding that the ,,:y @ R 2 a? - qgp suit cannot be contmued on behalf of legal representatives of the deceased as parents of the tenant caxmot be said to be legal representatives in the suit of the present nature. Hence this petition. Shri Shree Kumar Agrawal, learned Sr. Advocate, appearing for the petitioners would submit that under the C.G. Accommodation Control Act, 1961, tenancy is heritable and rights to sue survives in favour of legal representatives of the deceased tenant i.e. the petitioners and, therefore, the order passed by the trial Court is patently illegal and Without jurisdiction. For this, he placed reliance upon the decisions of the Supreme Court in case of Smt. Gian Devi Anand —v— Jeevan Kumar and others reported in AIR 1985 SCC 796 and in case of Harish Tandon —v- Addl. District Magistrate, Allahabad, UP and others reported in AIR 1995 SC 676. 4s Per contra, Shri RK. Shanna, learned counsel appearing for the respondent would submit that the suit was instituted by the deceased plaintiff on the premise that the landlord has forcibly evicted him and, therefore, essentially the suit was based on tort committed by the respondent and, therefore, the cause of action does not survive after the death of the plaintiff, the well reasoned order passed by the trial Court deserves to be upheld. For this, reliance has been placed by Shri Shanna upon the judgment of Supreme Court in the case of Kakumanu Pedasubhayya and another -—v— Kakumanu Akkamma and another reported in AIR 1958 SC 1042. I have heard learned counsel for the parties and perused the record. lndisputably, theA deceased plaintiff was a tenant of the respondent in pursuance of written agreement as filed by ’the respondent along with his return. It is also not in dispute that the petitioners are legal representatives of H$ deceased Nitin Kumar. Law is W611 settlad that tenancy rights are heritable, which upon the death of orig'nal tenant devolve on his heirs. The Supreme Court in case of Smt. Gian Devi (Supra) While dealing with para materia provisien of Deihi Rent Control Act, has observed in para 36 and 37 as under: — “36. Accordir'agly, we hold that if the Rent Act in question defines a tenant. in substance to mean a tenant who centinues to remain in possession even after the termination 0f the contractual tenancy till a decree for eviction against him is passed, the tenant even after the determination of the tenancy continues to have an estate or interest in the tenanted premises and the tenancy rights both in respect of residential premises and commerciai premises are heritable. The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection ajforded to the deceased tenant under the Act wiii devolve on the heirs of the deceased tenant. As the protection ap‘brded by the Rent Act to a tenant after determination ofthe tenancy and to his heirs on the death ofsuch tenant is a creation of the Act for the benedt of the tenants, it is open to the Legislature which provides for such protection 'to make appropriate provision in the Act with regard to the nature i and extent of the benefit and protection to be enjoyed and the manner in which the same is to be enjoyed. if the Legislature makes any provision in the Act limiting or restricting the benent and the nature of the protection to be enjoyed in a specified manner by any particular class of heirs of the deceased tenant on any condition iaid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the jiilfiilment of the condition in the manner and to the extent stipulated in the Act. The Legislature which by the Rent Act seeks to confer the benefit on the tenants and to ajford protection against eviction is perfectly competent to make appropriate provision regulating the nature of protection and the manner and extent of enjoyment of such tenancy rights after the termination of contractual tenancy of the tenant including the rights and the nature of protection of the heirs on the death of the tenant. Such appropriate provision may be made by the Legislature both with regard to the residential tenancy and commercial tenancy. It is, however, entirely for the Legislature to decide whether the Legislature will make such provision or not. In the absence of any provision regulating the right of inheritance, and rthe manner and extent thereof and in the absence of any ‘ condition being stipulated with-regard to the devolution of tenancy rights on the heirs on the death of the tenant, the 4 wk devolution of tenancy righ‘c‘s must necesscm’iy be in accordance with ihe ordinary law of succession. 1 37. 1:4 the Delhi Act, the Legislature has thought it fit to make provisions regulating the right to inherit the tenancy rights in respect of resideiatiat premisest The relevant provisions are contained in S. 2(I)(iii} of the Act, With regard to the commercial premises, the Legislature in the Act under consideration has thought it'jit not to make any such provision. It may be noticed that in some Rent Acts provisions regulating heritability of commerciai premises have aiso been made whereas in some Rent Acts no such provision either in respect of residential tenancies or commercial tenancies has been made As in the present Act, there is no provision regulating the rights of the heirs to inherit the tenancy rights of the tenant in respect of the tenanted premises which is commercial premises,’ the tenancy right which is heritable devoives on the heirs under the ordinary law ofsnccession. The tenancy right of Wasti Ram, therefore, devolves on all the heirs of Wasti Ram on his death 7. 1n case of H.C. Paudey —v- G.C. Paul reported in AIR 1989 SC 1470, the Supreme Court has observed that after the death of the original tenant, subject to any provision to the contrary, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoined by the original tenant. 8. Therefore, in View of the dicta of the Supreme Court in the above referred cases, the position of law is crystaidear that the tenancy n'ghts devoive on the heirs of the deceased and therefore right to sue survives under Order 22 Rule 1 of C.P.C. in favour of the legal representatives of the deceased tenant. 9. The judgment cited by Shri Shanna is of no help to him. Rather it supports the petitioners’ stand. The Supreme Court in the case of Kakumanu Pedasubnhayya and another(supra) has observed in para 15 as under:— “l5. It remains to consider. one other argument advanced on behalf of the appellants It was argued that the cause of action for a suit for partition by a miitor was one personal ’ to him, and that on his death before hearing, the suit must abate on the principle of the maxim, actio personalis. moritur cum persona. But that maxim has appiication / - 10. 11. only when the action is one for damages for a personal wrong} and as a suitfor partition is a suitfor property, the rule in question has no appiicazion to it. That was the view taken in ILR 57 Mad 95 (AIR 1933 Mad 890)(FB) at pages 137-1 38 of(1LR Mad) : (at p. 907 ofAlR) and in ER (1 94 7) Nag 848: (AIR 1 948 Nag 1)(F) at page 871 oflLR Nag): (at p. 1 0 ofAlR) and we are in agreement with it ” Therefore, in the considered opinion Of this Court, the order passed by the trial Court is patent1y illegal. It deserves to be and is hereby set aside and the application filed by the petitioner under Order 22 Rule 3 of C.P.C. is allowed. It is directed that the trial Court shall permit the petitioners to substitute their names in place of deceased plaintih‘ late Nitin Kumar and thereafter the trial Court shall proceed with the suit and decide the same in accordance with law on its own merits as early as possible preferable Within a period of one year. The petition is allowed. Sd/ . N.K.Agarwal ‘ Judge