IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition 841 of 2006 (M/S) Sohan Lal Agarwal S/o Late Shri Dev Karan Das ..……… Petitioner. Versus District Judge and others ……… Respondents Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. G.D. Joshi, Advocate for the petitioner. Mr. Sharad Sharma, Senior Advocate assisted by Mr. H. V. Sah, Advocate for the respondents. Hon’ble Tarun Agarwala, J. Heard Shri Rajendra Dobhal, the learned Senior Counsel duly assisted by Mr. G.D. Joshi, the learned counsel for the petitioner and Shri Sharad Sharma, the learned Senior Counsel duly assisted by Mr. H. V. Sah, the learned counsel for the respondents. The landlord, respondent No.2, Kailash Chandra Sah filed an application u/S 21 (1) (a) of the U.P. Act No. 13 of 1972 for the release of the shop in question against the respondent No.3 Gajanand Agrawal. The said application was allowed by the Prescribed Authority, against which, Gajanand Agrawal filed an appeal u/S 22 of the Act which is pending consideration. Before the Prescribed Authority, Gajananad Agrawal submitted that he is not the sole tenant of the shop in question and that the original tenant was late Dev Karan Das and, upon his death, the tenancy devolved upon Gajanand Agrawal as well as upon Sohan Lal Agrawal and that Sohan Lal Agrawal should also be impleaded as a necessary party. The Prescribed Authority, after considering the matter, rejected the contention of the tenant and held that Sohan Lal Agrawal is not a tenant and was not liable to be impleaded as a necessary party. This controversy is pending adjudication before the Appellate Court on an appeal filed by Gajanand Agrawal. 2 During the pendency of the appeal, Sohan Lal Agrawal jumped into the fray and filed an application under Order 1 Rule 10 of the C.P.C. contending that he is a joint tenant and that the tenancy devolved upon him also upon the death of Dev Karan Das and, that the shop, being a commercial shop, could not be released unless the joint tenants are impleaded as necessary parties. This application was rejected by the lower appellate court on the ground that the documents filed by the petitioner indicated that he was not residing in Ranikhet nor was doing any business from the premises in question and that his son Sandeep Agrawal was also not doing business from the premises in question and, consequently, rejected the application for impleadment. The petitioner, being aggrieved by the said order, has filed the present writ petition. A number of documents has been annexed by the petitioner in his rejoinder affidavit to indicate that the petitioner and his son Sandeep Agrawal were doing business from the premises in question. Even though the rejoinder affidavit does not indicate that these documents had been filed before the Court below, nonetheless, upon a perusal of the said documents, the Court finds that the contention of the learned counsel for the petitioner to the effect that he was doing business from the premise in question cannot be proved. None of the documents indicate that the petitioner or his son are doing the business from the premises in question. Section 3 (a) of the U.P. Act No. 13 of 1972 defines a tenant which is extracted hereunder:- “3. Definitions.- In this Act, unless the context otherwise requires – (a) “tenant”, in relation to a building, means a person by whom it rent is payable, and on the tenant’s death or his heirs; 3 [(1) in case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; (2) in the case of a non-residential building, his heirs]; [Explanation. – An occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant];” In case of a non-residential building, if the tenant dies, then his heirs are required to be impleaded as necessary parties. Consequently, it is irrelevant as to whether the applicant was doing the business from the premise in question or not. The fact that his father was the original tenant in a commercial property was sufficient for the applicant Sohan Lal Agrawal to be impleaded as a necessary party. But the matter is not simple as it sounds. In the present case, the court finds that specific plea was taken by the tenant Gajananad Agrawal to the effect that Dev Karan Das was not a tenant and that the tenant was a firm known as M/S Radhey Lal Dev Karan Das of which Gajanand Agrawal and Sohan Lal were partners in the firm. Consequently, in that capacity, he was also liable to be impleaded. The Prescribed authority considered this fact that there is no document to indicate that Sohan Lal was a partner in the firm and, consequently, rejected the contention of the tenant. In view of the aforesaid, the petitioner Sohan Lal is unable to prove that he is a partner in the firm nor has he been able to prove that he is doing the business from the premises in question. Consequently, the Court below was justified in rejecting the application for impleadment. This court does not find any error in the impugned order. The writ petition fails and is dismissed. (Tarun Agarwala, J.) Dated 16.08.2010 Shiv 4