Saeed-Uz-Zaman Siddiqi, J. - (1.) Heard learned counsel for the petitioner and perused the record.
(2.) Petitioner has preferred this writ petition with a prayer to issue a writ in the nature certiorari for quashing order dated 10.09.2012, passed by the learned Prescribed Authority / Additional Chief Judicial Magistrate, Room No.21, District Sultanpur, by which plaintiff's prayer to abate the proceedings under Section 21 of U.P. Act No.13 of 1972 has been rejected.
(3.) Brief facts of the case are that the tenant died prior to the institution of the proceedings under Section 21 of U.P. Act No.13 of 1972. The landlord got the heirs substituted. Later on one of the tenants namely Dhirendra Kumar, who is petitioner before this Court, moved application paper no.87-C to the effect that defendant no.4, 9 and 12 have died in a period falling between 1.5-2 years to 15-16 years but no substitution has been made and, as such, the suit as against them has abated. The question of abatement relate to death of a party, during pendency of the case, against whom right to sue survives. The petitioner should have taken the plea of non-joinder of necessary party / parties, which could have been determined by the learned Prescribed Authority. The application for release relates to a shop and not to a residential accommodation, in which Ram Dayal was running his business, during his lifetime. Ram Dayal had six sons who have separated his eldest son Phool Chand and has started living with the children of his second wife. Learned Prescribed Authority has rightly considered that the defendant no.4, 9, 10 and 12 did never contest the suit and, as such, there is no need for their substitution. Under Section 3(1) of U.P. Act No.13 of 1972 'tenant' in relation to a building means a person by whom its rent is payable and on the tenant's death, in case of a non-residential building his heirs.;