M/S Kanhiya Singh Santok Singh & Ors vs Kartar Singh

3. The facts leading to the filing of this appeal are stated briefly as under : -

4. The appellants along with their father were carrying on business of motor spare parts as well as a Kerosene Retail outlet business. On 24th of February, 1997, the respondent filed a suit for eviction against the father of the appellants Late Santok Singh (since deceased) and the firm owned by him namely M/s Kanhiya Singh Santok Singh on the ground of bonafide requirement. By an order dated 30th of July, 1997, the Additional Civil 2 Judge, Kishangarh, held that the respondent had failed to prove his bonafide requirement and, therefore, dismissed the suit. Thereafter, the respondent filed a first appeal before the Additional District and Sessions Judge, Kishangarh, Ajmer. On 5th of October, 2002, the First Appellate Court allowed the appeal and decreed the suit for eviction against the father of the appellants, Santok Singh (since deceased) and his firm. Aggrieved by the aforesaid decree, late Santok Singh and the firm through late Santok Singh filed a Second Appeal before the High Court of Rajasthan at Jaipur being S.B. Civil Second Appeal No. 486 of 2002.

5. On 18th of September, 2006, the father of the appellants late Santok Singh died leaving behind his widow and three sons, out of whom the appellants being two of them, were living with late Santok Singh at the time of his death. The third son had already separated from the joint family and started a business of his own. On 26th of October, 2006, the appellants filed an application for being substituted under Order 22 Rule 3 3 CPC as legal representatives of late Santok Singh, having specifically mentioned in the said application that they were ordinarily carrying on business along with their father as the members of his family till the time of his death.

6. On 16th of April, 2007, the respondent filed a reply opposing the application filed by the appellants for substitution as legal representatives of late Santok Singh and prayed that the appeal be dismissed as abated.

7. The High Court by the impugned order rejected the application and dismissed the appeal of the appellants as abated.

11. The learned counsel appearing on behalf of the respondent however contended at the first instance that 5 the appeal in this Court itself is not entertainable as the appellants cannot be substituted as legal representatives of late Santok Singh in spite of the fact that they are his sons, in view of the provisions of section 3 (vii) of the Act. It was his contention that since the original tenant had died during the pendency of the Second Appeal, the Second Appeal filed by him before the High Court was bound to have been abated, unless his heirs and legal representatives who satisfied the requirements under section 3 (vii) of the Act, were brought on record. Therefore he argued that the High Court had correctly rejected the application of the appellants finding them unfit to be declared as legal representatives of late Santok Singh under Order 22 Rule 3 of the CPC, since they did not come within the category of "tenants" under section 3 (vii) of the Act. The respondent contended that a partition had already taken place by way of family settlement in the family of the original tenant on 1st of August, 1974, and this fact was categorically admitted by him in his statement recorded on 31st of March, 1990. 6 Therefore, the appellants were not ordinarily carrying on business as the members of the family of late Santok Singh till the time of his death, to be substituted in his place and thus were not eligible to be brought on record as his heirs and legal representatives under Section 3

(vii) of the Act. This is so because only those legal representatives would become tenants in case of premises leased out for commercial or business purposes, who were ordinarily carrying on business with late Santok Singh as members of his family upto his death. It is relevant to mention at this stage that simply because the appellants claimed to be in business at the time of his death with late Santok Singh, would not bring them within the definition of "tenant" unless they were carrying on business in the suit premises with late Santok Singh at the time of his death as a member of his family. Therefore, it was the contention of the respondent that since a partition amongst the members of the family of Late Santok Singh and the appellants had already taken place by virtue of a family settlement dated 1st of 7 August, 1974 and the members of the family including the appellants had started their own business, it could not be said that the appellants were entitled to be substituted as legal representatives of late Santok Singh to prosecute the second appeal filed by him against the eviction decree nor they could be entitled to file this appeal in this Court.

13. Thus considering the ambiguous position regarding the status of the appellants relating to their status as tenants, it was necessary for the High Court to remit the 11 matter to the trial Court for a proper determination of the factual aspects whether the appellants were in fact carrying on business with late Santok Singh at the time of his death by taking evidence and thereafter, come to a finding whether the appellants shall be brought on record in the second appeal as the legal representatives of late Santok Singh.

16.In view of our discussions made hereinabove, the impugned Judgment of the High Court is liable to be set aside and, accordingly, it is set aside.

17.The matter is now remitted back to the High Court, who in turn, shall direct the trial Court to take 15 evidence in the manner indicated above and after considering the evidence (documentary and oral) brought on record by the parties shall make a finding on the status of the appellants and the record, thereafter may be sent back to the High Court with the findings and the evidence that would be adduced and already on record and only thereafter, the High Court shall dispose of the second appeal. If the High Court is of the view that the appellants shall be substituted in place of late Santok Singh, in that case, the High Court shall decide the appeal on merits after giving hearing to the parties and after passing a reasoned judgment in accordance with law. In the event, the High Court finds that the appellants cannot be substituted in place of late Santok Singh, then the High Court shall pass an order disposing of the appeal as abated. The High Court shall direct the trial Court to take evidence and send the records with its findings within six weeks from the date of receipt of a copy of an order of the High Court to it. 16

18.The appeal is accordingly allowed to the extent indicated above. There will be no order as to costs.