S.U.KHAN, J. - (1.) THE revision under Section 25 PSCC Act, has been filed by Gauri Shankar Gupta, whose impleadment application in SCC Suit No. 42 of 2001 had been rejected by Additional District Judge, Court No. 2, Kanpur Nagar, through order dated 24 -7 -2003 impugned in the instant revision. The suit has been filed by the plaintiff/respondent No. 1, Anita Mishra, against the respondent No. 2, Azad Kumar. True copy of the plaint is Annexure 1 to the affidavit, filed in support of stay application. In para 4 of the plaint, it is stated that previously Ram Autar, father of defendant (i.e. Azad Kumar) was the tenant of the shop in dispute and after his death. Azad opted for tenancy and signed the counter foils of receipts and he alone made payment of rent. In para 2 of the plaint it has been stated that the shop in dispute in new construction, hence provisions of U.P. Act No. 13 of 1972 do not have any application and assuming it to be within the ambit of the said Act, a clear case of default has been made out. Relief for eviction and recovery of arrear of rent etc. has been sought through the said plaint. Revisionist Gauri Shankar Gupta applied for impleadment on the ground that he was also son of Ram Autar, father of the defendant, hence he also inherited the tenancy and was necessary or at least proper party to the suit.
(2.) IN the plaint no date of construction has been given hence from bare reading of the plaint, it is not clear whether U.P. Act No. 13 of 1972 applied to the shop in dispute on the date of filing of the suit or not. In the plaint it has not been pleaded that heirs of Ram Autar other than defendant Azad Kumar expressly surrender their tenancy. Under the general law after the death of the tenant all his heirs inherit the tenancy. Even under U.P. Act No. 13 of 1972, in case of non -residential building all the heirs of the tenant inherit the tenancy by virtue of definition of tenant given under Section 3(a) of the Act. Even though the Supreme Court in AIR 1995 SC 676 and AIR 2001 SC 2251, has held that after the death of the tenant all his heirs inherit the tenancy jointly and decree passed against one or some of them is binding on nonimpleaded joint tenants also, however, this doctrine cannot be pressed into service when during the pendency of the suit a person claiming to be the joint tenant applies for impleadment. In AIR 2001 SC 2251 (supra) itself an earlier authority of three Hon'ble Judges reported in AIR 1990 SC 2053, has been referred to in which a decree for eviction was set -aside on the application of non -impleaded joint tenant.
(3.) IT is settled law that the sub tenant is not a necessary party to a suit for eviction filed against the chief tenant and decree for eviction passed against chief tenant is binding upon subtenant. However, even in the case of sub tenant, it has been held by the Supreme Court that in case, he applies for impleadment during the pendency of a suit for ejectment and on the objection of the landlord his application is rejected than he cannot be evicted under decree of eviction against the chief tenant (vide AIR 2002 SC 804).;