Decided on November 20,2012

Smt. Angoori Devi And Ors. Appellant
Surendra Kumar Kukreti And Ors. Respondents


V.K. Bist, J. - (1.) BY way of instant petition, the petitioners are challenging the order dated 16.07.2011 passed by Prescribed Authority/Civil Judge (Sr. Div.), Kotdwar, Pauri Garhwal in P.A. Case No. 17 of 2008 'Surendra Kumar and ors. vs. M/s. Hari Krishna Chandra Prakash and ors.', pending before him, whereby the Court below rejected the application, moved by the third party (petitioners herein) under Order I Rule 10(2) of the Code of Civil Procedure, thereby seeking their impleadment in the P.A. Case no. 17 of 2008. The facts, which emerge out from the record, are that respondent nos. 1 to 6 filed an application before the Prescribed Authority, Kotdwar for release of a shop situate at Badrinath Road, Near Jhanda Chowk, Kotdwar, District Pauri Garhwal under clause (a) of sub -section (1) of Section 21 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act (U.P. Act No. XIII of 1972) which was numbered as P.A. Case No. 17 of 2008. It is asserted in the petition that originally the case was filed against respondent nos. 8, 10 and 11 only, but the respondent nos. 7 & 9 were impleaded subsequently. It is pleaded that shop in question was let out to the firm M/s. Hari Krishna Chandra Prakash, which was a partnership firm of two partners i.e. Hari Krishna and Balesh Chandra @ Bal Bahadur Agarwal. It is asserted that the petitioners are the legal representatives of Hari Krishna and when they came to know about the pendency of said release application, they moved an application for their impleadment before the Court below. The respondent nos. 1 to 6 filed objection to the impleadment application. Upon hearing learned counsel for the parties, the Prescribed Authority, vide impugned order dated 16.07.2011 rejected the impleadment application. Hence this petition.
(2.) THE respondent nos. 1 to 6 filed a counter affidavit with the assertion that after the death of partner i.e. Hari Krishna, the partnership was dissolved and after the death of other co -partner Balesh Chandra @ Bal Bahadur Aggarwal the partnership came to an end, and in fact, the disputed shop had never been in the tenancy of the partnership firm of the petitioners and the legal heirs of Balesh Chandra. It is asserted that the petitioners had never been the tenants of the shop in question in any capacity, neither as a partner nor in their individual capacity. Learned counsel for the petitioners contended that the Court below has passed the impugned order in a cursory manner. He contended that admittedly, the partnership firm (respondent no. 7 herein) is a tenant and because a partnership firm is not a legal person, its partners shall be deemed to be tenants of the premises and shall be co -tenants. Learned counsel for the petitioners submitted that originally the release application was filed against respondent nos. 8, 10 and 11 only and the firm -respondent no. 7 was impleaded later on and it had been specifically alleged that the firm had two partners, who have died. He contended that it is settled principal of law that all legal heirs of the original tenant become tenants on account of death of original tenant, therefore the petitioners became tenants of the shop in question, after the death of Hari Krishna, because the respondent nos. 1 to 6 did not allege that the petitioners have surrendered their tenancy rights at any point of time and even if this plea is taken, it can only be adjudicated upon after adducing evidence by the parties and cannot be decided in a cursory manner. Lastly, it is contended that no order prejudicial to a person can be passed against him, without providing any opportunity of hearing. He contended that any order of release passed in the matter shall prejudicially affect the rights of the petitioners, thus the petitioners are necessary party to the case.
(3.) ON the other hand, MR. B.P. Nautiyal, learned Senior Advocate appearing for the respondents argued that the release application was filed in the year 2008 and when it came up for arguments, the joint tenants/respondent nos. 7 to 11 with an ulterior motive of prolonging the final hearing, adopted delaying tactics in order to avoid the disposal of the release application, filed frivolous impleadment application on 05.07.2011. He contended that the first date of argument in the release application was 26.10.2010 and ever since the argument could not be heard because of the delaying tactics adopted by the respondent nos. 7 to 11. He submitted that the order impugned has been passed based on the merits of the case, which does not warrant any interference. He denied that Hari Krishan and Balesh Chandra were co -tenants of the shop in question and in fact, the petitioners have no locus standi to claim any right regarding their impleadment in the matter of release of the disputed shop, as they are neither tenant nor in possession of the disputed shop for last about 20 years, inasmuch as, neither the petitioners had ever been the tenants of the respondents/landlords in the disputed shop nor they have paid any rent in any capacity to the landlord/respondents, therefore the claim of petitioners to get impleaded in the release application is not maintainable and the Court below has rightly rejected their impleadment application and in doing so, the trial Court considered the entire material available on record and the merits of the application. Learned Senior Advocate for the respondents submitted that though the partnership firm was not a necessary party in the release application, as no partnership firm was in existence, and as such was not tenant in possession of the shop in dispute on the date of filing the release application. He contends that technicalities should not prevail in getting the justice and therefore just to avoid the unnecessary technicalities, the partnership firm, though is not in existence, was also impleaded as a party, specially for the reason that initially the partnership firm had been the tenant before dissolution of the same and the firm was dissolved more then 20 years back and by impleading the then partnership firm, which was initially a tenant in the disputed shop, the petitioners cannot make any claim for their impleadment in the release application. He vehemently contended that undisputedly the partnership firm, which is being represented through legal heirs of one of the partners is already party and in addition to that other heirs of the partner, who are actually tenant in possession of the disputed property are party in the release application and are contesting the release application, therefore the petitioners are not necessary party and as such, the impleadment application is not maintainable. It is lastly contended that the petitioners are not having any interest in the disputed property, as they are not the tenants and in this regard failed to produce even a single piece of evidence in support of their impleadment application regarding their right of tenancy to prove that they are tenant. Learned counsel for the respondents relied on the judgment reported in AIR 1976 Karnataka -71,, 2010 (1) ARC 128,, 2001 (2) ARC 470 and, 1987 (2) ARC 405.;

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