R.H. Zaidi, J. - (1.) BY means of this petition filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the judgment and order dated 10.3.1999 passed by respondent No. 1 allowing S.C.C. Revision No. 129 of 1998 setting aside the judgment and order dated 4.9.1998 passed by the Judge, Small Causes Court, Bijnor in S.C.C. Suit No. 79 of 1996 and remanding the case to the trial Court for decision afresh in the light of observation made in the impugned judgment. The relevant facts of the case giving rise to the present writ petition, in brief, are that Rakesh Kumar Agarwal, the respondent No. 2, purchased the shop in dispute from one Surendra Mohan Agarwal. The shop in dispute at that time was occupied by Shyam Sundar Bhatia, respondent No. 3, Sandeep Bhatia, son of Anand Bhatia, and Smt. Kiran Bhatia widow of Sri Anand Bhatia. After serving notice of demand and termination of tenancy upon the aforesaid three persons, the respondent No. 2 filed original Suit No. 19 of 1986 for ejectment of the said tenants and recovery of rent, damages etc. on the ground of default. The said suit was contested by Sandeep Bhatia and others who denied the claim of the petitioner and pleaded that no default in payment of rent was committed by them. The trial Court after perusing the materials on record came to the conclusion that no default was committed by the aforesaid tenants and that they were also entitled to the benefits of Section 20(4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. XIII of 1972), for short the Act, and dismissed the suit by judgment and decree dated 10.4.1987 which has become final. It was on 30.5.1996 that a fresh notice of demand and termination of tenancy was served by the respondent No. 2 upon the petitioner and respondent No. 3 Sri Shyam Sunder Bhatia, claiming the rent from February, 1995 was due. On receipt of the said notice, the petitioner and the respondent No. 3 gave their reply contending that they were not in arrears of rent and that the notice was illegal and invalid. The respondent No. 2, thereafter, filed S.C.C. Suit No. 79 of 1996 on the ground of default. The petitioner and respondent No. 3 filed their written statement mainly contending that they have never committed default in payment of rent and that notice of demand and termination of tenancy served upon them was invalid and illegal. The suit as framed and filed was illegal and not maintainable in as much as neither notice of demand nor termination of tenancy was served upon Smt. Kiran Bhatia nor she was impleaded as party in the suit. Without framing the questions for determination in the case, which arose from the pleadings of the parties, the trial Court proceeded to decide the case. It was held by the trial Court that Smt. Kiran Bhatia was a necessary party. No notice of demand or termination of tenancy was served upon her nor she was impleaded in the suit as a party. Therefore, the suit, as framed and filed, was illegal and not maintainable. Having recorded the said findings, the trial Court dismissed the suit by its judgment and decree dated 4.9.1998. Challenging the validity of the said decree, the respondent No. 2 filed revision before the Court below under Section 25 of the Provincial Small Cause Courts Act. Before the Revisional Court, it was contended on behalf of the respondent No. 2 that the status of Smt. Kiran Bhatia, widow of Sri Anand Bhatia and Sandeep Bhatia, son of late Sri Anand Bhatia, was that of joint tenants. Therefore, service of notice of termination of tenancy upon any of them and impleading of one of them was legal and valid in law. The view taken to the contrary, by the trial Court was manifestly erroneous and illegal. The Revisional Court upheld the contentions raised by the respondent No. 2 who after reversing the finding on question of the maintainability of the suit, as the trial Court did not decide other questions involved in the suit, remanded the case by its judgment and order dated 10.3.1999 and hence, the present writ petition.
(2.) LEARNED Counsel appearing for the petitioner vehemently urged that the status of petitioner and respondent No. 3 was that of the co -tenant. Therefore, service of notice of termination of tenancy upon Smt. Kiran Bhatia and her impleadment in the suit was necessary. The view taken, to the contrary, by the Court below was manifestly erroneous and illegal. The judgment and order passed by the Court below was, therefore, liable to be set aside and the writ petition deserves to be allowed. On the other hand, learned Counsel appearing for the respondent No. 2 supported the validity of the judgment and order passed by the Court below. It was urged that initially Shyam Sunder Bhatia and Anand Bhatia were tenants as it is proved from the materials on record. On the death of Anand Bhatia, the petitioner Sandeep Bhatia (as son) and Smt. Kiran Bhatia (as widow) inherited the tenancy rights as joint tenants. The relationship of parties is to be judged between the plaintiff and the defendants and not amongst the defendants themselves. It was urged that the termination of tenancy of one of the joint tenants and impleadment of one of them is sufficient and good in law. The decree passed against one of the joint tenants has got binding effect on other joint tenants even if they are not impleaded as party in the suit. It is submitted that the judgment and order passed by the Court below was quite valid. The writ petition has got to merit and it was, therefore, liable to be dismissed.
(3.) I have considered the rival submissions made by learned Counsel for the parties and also gone through the material on record. It is not disputed that in the earlier suit notice was served upon three persons, namely Sandeep Bhatia, Shyam Sunder Bhatia and Smt. Kiran Bhatia and suit was also filed against all the three persons on the ground of default. The trial Court dismissed the said suit by its judgment and decree dated 10.4.1987 holding that the defendants tenants were not defaulters and they were also entitled to the benefits of Section 20(4) of the Act. Learned Counsel for the parties agree that the said decree does not affect the validity of the suit giving rise to the present petition as the same was filed on absolutely different cause of action inasmuch as the rent was demanded for the period different from the period it was due on the basis of which earlier suit was filed. Therefore, the second suit was legally maintainable. The suit was contested by the defendants denying the claim of the plaintiff -respondent No. 2 regarding arrears of rent and further contending that the suit, as framed and filed, was legally not maintainable. According to them, service of notice of termination of tenancy upon Smt. Kiran Bhatia and her impleadment in the suit was necessary as, according to the learned Counsel for the petitioner, they were co -tenants. It is not disputed that initially the respondent No. 3, Shyam Sunder Bhatia and Anand Bhatia were the tenants of the shop in dispute. Sri Anand Bhatia died and on his death tenancy rights were inherited by Sandeep Bhatia (as son) and Smt. Kiran Bhatia (as widow), who were his heirs and as Shyam Sunder Bhatia is son of one Kaushal Chand Bhatia, he does not come within the definition of family and is not one of the heirs of Anand Bhatia, as it is evident from Annexure No. 4 to the writ petition and as such Sri Shyam Sunder Bhatia was not the member of the family of Anand Bhatia nor he inherited the tenancy rights from him. A reference in this regard may be made to the provisions of sub -clause (2) of clause (a) and clause (g) of Section 3, which provides as under: 3. Definitions. - -In this Act, unless the context otherwise requires - - (a) "tenant" in relation to a building, means a person by whom its rent is payable, and on the tenant's death - - (1) ............. ................. (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. (g) "family" in relation to a landlord or tenant of a building means, his or her - - (i) spouse, (ii) male lineal descendants, (iii) such parents, grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to landlady any female having a legal right of residence in that building.;