S.R.BHARGAVA, J. - (1.) THIS petition involves only one short question and has been heard finally at admission stage. It is being disposed of finally.
(2.) SHORT question involved in this writ petition is whether an order abating an application for release under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter called the Act), is appealable under Section 22 of the Act. Facts are that one Sunder Lal left behind him his widow Smt. Bhagwan Dei, son Rajjan Lal and daughter Smt. Ranno Devi. All the three of them filed an application for release under Section 21(1)(a) of the Act against the petitioners. Smt. Bhagwan Dei and Smt. Ranno Devi died during the pendency of the said release application. Smt. Ranno Devi, it is not disputed, left behind her husband. No substitution application was made. Want of substitution application in place of deceased Smt. Bhagwan Dei was inconsequent because it is not said that she left any heir other than Rajjan Lal and Smt. Ranno Devi. When no substitution application was filed within a month of the death of Smt. Ranno Devi petitioners moved application for abatment of the lease application. Learned Prescribed Authority allowed the application and abated the release application. Against that opposite party Rajjan Lal filed appeal under Section 22 of the Act. In the appeal he applied for amendment of the release application and relied upon a Will of Sunder Lal in his favour. Learned Appellate Court allowed the amendment application and set aside the abatement order. It remanded the release application for further proceedings. Against this, petitioners have come before this Court in writ petition. Section 21(6) of the Act shows that release under this section not only results into eviction of the tenant but also determination of the tenancy in entirety. It is now well settled that all the co-landlords can jointly determine release of the tenant. Hence, in Section 34(4) it has been provided that in case any party to the release application dies during the pendency of the proceedings, landlord or such proceeding may be continued after bringing on record in the case of the tenant, his heirs or legal representatives. Section 34(1) has made certain provisions of Civil Procedure Code, 1908 applicable to the proceedings before the District Magistrate, the Prescribed Authority or any appeal or revising authority. But even in this sub-section Order 21I CPC has not been made applicable to the proceedings for appeal under the Act. Rule 15(2) framed under Section 21(1) of the Act inter alia lays down that in case there are more than one landlord the application for release should be signed by all the co-landlords Rule 22 framed under Section 34(1) further makes several provisions of CPC applicable to proceedings under the Act. They include the provision conferring power to proceed ex parte and to set aside the ex parte order. But even in this Rule Order 21I CPC has not been made applicable to the proceeding under the Act. Rule 25(1) lays down that application for substitution should be made within one month from the date of the death of such person. In the Division Bench case of Ram Naresh Tripathi v. II Additional Civil Judge, Kanpur, 1980 ARC 563, it was held that Section 34 does not say as to what should be the consequence if the heirs and legal representatives do not get themselves substituted. The language of sub-section (4) of Section 34 is not even prohibitory so that it could be argued that omission on the part of the heirs and legal representatives to get themselves substituted proceedings cannot be abated. Thus it cannot be said that in absence of substitution application within limitation of one month the release application should be abated.
(3.) BUT , as Section 21(6) shows that release if granted not only results into eviction but also determination of release which can be done only by all the co-landlords. It is apparent that for success in a release application all the landlords should be on record. Hence, when no substitution application is made on the death of a landlord the Prescribed Authority should say that the release application is not maintainable and should dismiss it being contrary to Rule 15.;