1 S.B. CIVIL REVISION PETITION NO.196/2007 Radha Kishan Todwal Vs. Shrikrishan Gopal & Ors. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER 8.5.2009. S.B. CIVIL REVISION PETITION NO.196/2007 Radha Kishan Todwal Vs. Shrikrishan Gopal & Ors. HON'BLE MR. JUSTICE DALIP SINGH Shri S.R. Surana, for the petitioner. Shri B.L. Mandhana, for the respondent. Heard learned counsel for the parties. This revision petition has been filed challenging the order dated 3.9.2004 passed by the learned Additional District Judge, Beawar in civil appeal No.11/1990. By the impugned order the appeal filed by the tenant deceased Kundan Lal was dismissed as having abated and the application submitted by the petitioner for substitution as legal representative was also dismissed. The facts in nut shell are that the respondent filed a suit for eviction against the defendant, deceased Kundan Lal, from the shop situated in Beawar in District Ajmer. The suit was decreed by the learned trial court vide judgment and decree dated 2 S.B. CIVIL REVISION PETITION NO.196/2007 Radha Kishan Todwal Vs. Shrikrishan Gopal & Ors. 20.3.1990. The defendant tenant, deceased Kundan Lal preferred a regular first appeal No.11/1990 against the aforesaid judgment and decree dated 20.3.1990. During the pendency of the appeal Kundan Lal also died on 14.3.1996. As a consequence thereof the petitioner Radha Krishan moved an application on 1.6.1996 under Order 22 Rule 3 CPC for being substituted in place of deceased Kundan Lal. The said application reads as follows: ''Û यायालय ौीमान् अपर ǔजला जज साहब,Þ यावर-राज. -- दȣवानी अपील संÉ या- सन् 1990 -- ौी कुदनमल बनाम ौी कृं ण गोपाल -- ूाथ[ना पऽ अÛ तग[त आदेश 22 िनयम 3 जा0 दȣ0 -- ूाथȸ राधाकृं ण सुपुऽ ौी भवंर लाल टोडवाल जाित खÖ डेलवाल िनवासी- पालीबाजार, Þ यावर िनà न िनवेदन करता है:- 1. यह Ǒक उपरोÈ त अपील माननीय Û यायालय मɅ Ǒदनांक 30 जुलाई,96 को रखी हईु है। 2. यह Ǒक अपीलɅट कुंदनमल का ः वग[वास बमुकाम Þ यावर Ǒदनांक 14.3.96 को हो गया है। 3. यह Ǒक ः वगȸय ौी कुंदनमल जी ने ǒववादमः त दकान ु गणेशदा राधा Ǒकशन एÖ ड कà पनी को जǐरये वसीयतनामा Ǒदनांक 6.5.95 को Ʈारा ूाथȸ राधाǑकशन के प¢ मɅ वसीयत कȧ है। ौी कुंदनमल जी के ः वग[वास के पँ चात् दोनɉ हȣ फमɟ का मािलक जो Ǒक ǒववादमः त जायदाद मɅ चल रहȣ है से राधाǑकशन {ूाथȸ} मािलक चला आ रहा है। 4. यह Ǒक ूाथȸ हȣ वसीयतनामा Ǒदनांक 6.5.95 के Ʈारा ः वगȸय कुंदनमल जी का वाǐरस है ǔजसको ः वगȸय ौी कुंदनमल जी के ः थान पर रेकाड[ पर िलया जाना Û यायǑहत मɅ आवँ यक है। 3 S.B. CIVIL REVISION PETITION NO.196/2007 Radha Kishan Todwal Vs. Shrikrishan Gopal & Ors. 5. यह Ǒक ूाथȸ तथा ः वगȸय ौी कुंदनमल जी जो Ǒक ूाथȸ के दादाजी थे उन दोनɉ के Ǒहत आपस मɅ समान है तथा उनमɅ कोई ǒवरोधाभास नहȣं है। अतएव ूाथ[ना है Ǒक ूाथȸ को ः वगȸय ौी कुंदनमल जी के ः थान पर रेकॉड[ पर िलये जाने का आदेश फरमावɅ। Ǒदनांक: 1.6.96 एडवोकेट वाः ते ूाथȸ'' So far as the Rajasthan Premises Control of Rent & Eviction) Act 1950 is concerned tenant has been defined under Section 3 Clause VII reads as follows : “Sec. 3 (VII) (a) the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and (b) in the event of death of the person as it referred to in sub- clause (a) his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purposes, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family upto his death” 4 S.B. CIVIL REVISION PETITION NO.196/2007 Radha Kishan Todwal Vs. Shrikrishan Gopal & Ors. The above definition of tenant in the context of commercial premises requires that in the event death of the tenant as defined in clause (b) that (i) the applicant must be either a spouse, sons or daughters or other heir in accordance with the personal law applicable to the deceased tenant and further (ii) required to show that the applicant falls within above categories as heir of the deceased and in the case of commercial premises that, as such heir he was carrying on business with the deceased in the said premises as a member of his family (iii) that he was carrying on business as aforesaid upto the time of the death of the deceased tenant. The aforesaid provisions have come up for consideration before the Hon'ble Supreme Court in the case of Tara Chand Vs. Ram Prakash reported in 1990 (3) SCC Page 526 which has relied upon event in the judgment cited by the learned counsel for the petitioner namely The Legal Representatives of J.R. Ansari Vs. Hari Ram reported in 2003 (1) WLC (Raj.) 126 at para 17. Learned Single Judge in Ansari's case relied upon the decision of the Hon'ble Supreme Court wherein the Hon'ble Supreme Court has held as under : “17. The Hon'ble Supreme Court considered the said provisions of the Act, 1950 in Tarachand and anr. Vs. Ram Prasad, (1990) 3 SCC 526 and observed as under : “Similarly in respect of premises 5 S.B. CIVIL REVISION PETITION NO.196/2007 Radha Kishan Todwal Vs. Shrikrishan Gopal & Ors. leased out for commercial or business purposes, it must be established that the surviving spouse or son or daughter and the heir, as the case may be, ordinarily had been carrying on the business during the life time of the tenant as members of the family in the demised premises and continued to do the business till date of the death of the tenant.” A look at the above passage goes to show that in the application submitted by the petitioner applicant for substitution must satisfy the above requirements under Section 3 clause (vii) Sub Section (b). From the application submitted by the petitioner which has been quoted above it is apparent that the averments in the same do not satisfy the requirement of Section 3 (vii) (b) as held by the Hon'ble Supreme Court. The learned counsel with a view to over come the above sought to contend that the petitioner had submitted an affidavit to comply with the above statutory requirement. So far as the above contention is concerned suffice it to say that the application dated 1.6.1996 does not meet the aforesaid requirement of Sec. 3 (vii) (b) of the Act of 1950. An objection to this effect was taken by the landlord in his reply and 6 S.B. CIVIL REVISION PETITION NO.196/2007 Radha Kishan Todwal Vs. Shrikrishan Gopal & Ors. then an additional affidavit was filed by the petitioner on 26.11.1996. This is clearly an after thought. Moreover the affidavit at best is of evidenciary value in support of the application. No amount of evidence can be looked into for a fact which has not been pleaded. In view of the above the defect in the application can not be cured by the affidavit dated 26.11.1996. The impugned order therefore does not call for any interference. This revision petition and the stay application are accordingly dismissed. (DALIP SINGH),J. Ramchandrkhatri,PS