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[Citation : 2012(3) RLW 2610 (Raj.)]
(Rajasthan High Court)
Jagdish Prasad Joshi Vs. Appellate Rent Tribunal (Vyas, J.)
HON'BLE GOPAL KRISHAN VYAS, J.
Jagdish Prasad Joshi
Versus
Appellate Rent Tribunal, Jodhpur & Ors.
S.B. Civil Writ Petition No. 9499 of 2010, decided on 05.04.2012
Writ petition allowed.
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Certainly. Based on the provided legal document, here are the key points:
The case involves a dispute regarding the inheritance of tenancy rights after the death of a tenant, late Avtar Singh, in a commercial premises. The primary issue is whether the legal representatives of the deceased tenant can be recognized as tenants and whether their names should be retained in the legal proceedings (!) (!) (!) .
The petitioner contends that the legal representatives of the deceased tenant have been carrying on business in the premises during the tenant’s lifetime, and therefore, their inheritance of tenancy rights should be recognized. They argue that no proper opportunity was given to establish otherwise and that the case should be remitted to the relevant tribunal for a proper determination (!) (!) .
The respondents argue that the deceased tenant’s family members were involved in the business during his lifetime, and thus, they inherited the tenancy rights. They also assert that the pleadings do not explicitly state that the family members were carrying on business with the tenant, and therefore, the question of inheritance should be determined after providing an opportunity for a hearing (!) (!) (!) .
The court emphasizes that, according to the relevant legal definition, for family members to inherit tenancy rights in a commercial premises, there must be clear pleadings that they were carrying on business with the tenant during his lifetime. Since such pleadings are absent, the court finds no basis to remand the matter for further inquiry (!) (!) (!) (!) (!) .
The court notes that the specific plea by the deceased tenant was that he was carrying on business in partnership with certain respondents, and this plea was accepted by the appellate tribunal. As a result, the court concludes that there is sufficient evidence on record to determine that the legal representatives are not entitled to inherit the tenancy rights, and thus, the name of the deceased tenant can be struck off from the proceedings (!) (!) .
The court ultimately accepts the petitioner's prayer to delete the name of the deceased tenant from the list of respondents and directs the petitioner to file an amended cause title within a specified timeframe (!) .
The decision clarifies that the question of inheritance of tenancy rights in such cases should be determined based on pleadings and factual findings, and where such pleadings are absent, the legal representatives cannot be automatically deemed tenants. The matter does not require remittance to the tribunal since the pleadings already establish the facts (!) (!) .
Please let me know if you need a more detailed analysis or specific legal advice related to this case.
2. A reply to the application was filed by the petitioner, in which, it is stated that no death certificate of late Avtar Singh has been filed, therefore, the information sought to be given is absolutely vague and further it is pleaded that so far as the question of brining legal representatives of late Avtar Singh on record is concerned, the tenancy in question relates to the premises let out for commercial purpose, therefore, in terms of Section 1(ii)(b) of the Rent Control Act, 2001 the legal heirs of the deceased tenant shall not step into the shoes of the tenant because they will not fall within the definition of tenant because tenancy is not heritable.
3. It is also specifically pleaded that before the trial Court it has never been the case either in the written-statement or in the affidavit filed by the deceased that any one of his family members is carrying on business with him. On the contrary, in categorical terms it is stated in the written-statement as well as in the affidavit that he is carrying on business with persons arrayed as respondents in the application submitted before the Rent Tribunal, therefore, it is prayed that in view of the clear pleadings and the case set out before the Rent Tribunal and Appellate Rent Tribunal the respondents cannot set up case excluding the pleadings and material on record. Therefore, it is prayed that if the factum of death of respondent Avtar Singh is established, then, too, the name of respondent Avtar Singh may be struck off from the array of parties as respondent No.3.
4. For the prayer made in the reply to the application filed under Order 22 Rule 10-A, C.P.C. by the respondents with regard to deletion of name of deceased Avtar Singh, objection has been raised that prayer of the petitioner (landlord) regarding deletion of name of Avtar Singh from the array of respondents cannot be allowed for the following reasons :
(A) Late Avtar Singh was carrying on his business in the name and style of M/s. Indrajeet General Store during his life-time and, during his life-time, his family members viz., Rajendra Kaur, wife, Satpal, son and two daughters were also carrying out kirana business in the premises in question as his family members. The wife of late Avtar Singh and two daughters were always helping him in the business, therefore, the contention of landlord that tenancy right has not been devolved upon his family members upon his death is totally false.
(B) Unless and otherwise opportunity of hearing is offered to the legal representatives of late Avtar Singh it cannot be adjudicated whether the legal representatives of late were carrying on kirana business in the disputed premises with him as his family members during his life-time or not. Therefore, for that purpose opportunity of hearing is necessary to the legal representatives of late Avtar Singh.
(C) As per Rule 5 of the Order 22 of the Code of Civil Procedure where a question arises whether a person is or not legal representative of deceased tenant such question shall be decided after providing opportunity of hearing to both the parties. It is also pleaded that as per proviso to above rule if such question arises before the appellate Court, then, that Court before determining the question, direct any subordinate Court to return the record together with evidence if any recorded at such trial. Therefore, as per mandatory provisions of law, the prese
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