The death of a sub-tenant does not abate a suit for recovery of arrears of rent and eviction against the tenant.

SUDHIR Narain, J.

1. This writ petition is directed against the order dated 18-10-1995, whereby respondent No. 1 dismissed the revision against the order of the Judge, Small Causes Court dated 4-5-1985.

2. THE facts in brief are that respondent No. 2 filed suit No. 7 of 1991 for recovery of arrears of rent, ejectment and damages against the petitioner on the allegation that he was a tenant of the premises in question. He sublet it to one Roshan Lal Kalra. Roshan Lal Kalra was impleaded in the suit as defendant No. 2. Defendant No. 2 died on 20-4-1991. THE plaintiff-respondent filed application (15-C) on 30-10- 1991 praying that an amendment be made by stating the fact that defendant No. 2 has expired. THE petitioner filed an objection to the said application stating that the plaintiff having not filed any application for substitution of the heirs of the deceased defendant No. 2, the whole suit stood abated and the application for amendment of the plait was not maintainable. THE Additional Judge Small Causes Court vide his order dated 10-12-1991 hell that the right of the plaintiff to sue still survives and the suit does not abate. THE petitioner preferred a Civil Revision against the said order before the District Judge, Moradabad. THE District Judge dismissed the revision on 13-1-1992 on the ground that no revision lies against the order dated 10-12-1991 but in the order he made an observation that as sub-tenant was not substituted and if he was in exclusive possession, the whole suit may abate. He directed the lower court to decide the application of the defendant afresh for abatement of the suit.

The Judge, Small Causes Court again considered the application a and held that as defendant No. 2, who was impleaded as sub-tenant in the suit, was not impleaded, the right to sue did not survive and the whole suit stands abated. Respondent No. 2 filed revision No. 56 of 1994 against the said order. Respondent No. 1 took the view that defendant No. 2 was impleaded in the capacity of sub tenant. He was not a necessary party and on his death the right to sue still survives against the tenant-petitioner and the court below acted illegally in treating the whole suit as abated. The revision was allowed vide his order dated 18-10-1995. The petitioner has challenged this order in the present writ petition.

3. LEARNED counsel for the petitioner urged that the learned District Judge while disposing of the revision by his order dated 31-3-1992 made an observation that as the heirs of defendant No. 2 were not impleaded the whole suit stands abated. This observation was binding on the trial court as well as the revisional court and a different view cannot be taken on the basis of the principle of res judicata.

4. RESPONDENT No. 2 had filed a revision against the order of the trial Court dated 10-12-1991 whereby the Court had taken the view that after death of defendant No. 2, who was impleaded as defendant No. 2 in the suit, the right to sue still survives. The petitioner preferred a revision against the said order. The revision was dismissed by the District Judge holding that it was not maintainable but still in his order made an observation that as the petitioner has claimed relief against the sub-tenant, the shole suit may abate and directed the trial Court to decide the application afresh. It was not a case where the revision was finally allowed. The matter was remanded. It was open to respondent No. 2 to place his submissions before the trial Court and the trial Court was required to decide the matter afresh. The learned District Judge had dismissed the revision as not maintaianble. In these circumstances, if the matter is to be decided again, it cannot be held that the matter was conclusively decided by the learned District Judge which operates as res judicata.

Learned counsel for the petitioner has placed reliance upon the decision Satyadhan Ghosal and others v. Smt. Deorajin Debi and another, AIR 1960 SC 941 and Arjun Singh v