- (1.) Heard Sri Rahul Sahai, learned Counsel for the petitioner. By means of the present petition, the petitioner is challenging the order dated 19th February, 2011, passed by the Civil Judge, Senior Division, Hathras, in Execution Case No. 1 of 2002, Girraj Kishore v. Hari Shanker by which the objection filed by the petitioner has been rejected and the order dated 18th April, 2013, passed by the Civil Judge, Senior Division, Hathras by which the review application has been rejected. The brief facts of the case are that one Hari Shanker, Son of Sri Kailash Nath, was the tenant of the premises in dispute owned by the respondents. The respondent filed a Release Application, being P.A. Case No. 24 of 1991, under section 21(1)(a) of the U.P. Act No. 13 of 1972, for release of the tenanted premises on the ground that Smt. Kusum Gupta, the wife of the respondent No. 1/1, has done a course of Beautician and she wants to open a Beauty Parlour in the premises in dispute. The tenant, Hari Shanker Dubey, filed the written statement and contested the case. It appears that during pendency of the case, Hari Shanker Dubey died. The land-lord moved an application before the Court that in the written statement, Hari Shanker did not disclose any thing about his family members and whereabouts of his legal heirs are also not known. It has only been stated that he was living alongwith his cousin in Nannumal Ramashankar Dharamshala.
(2.) The Prescribed Authority/Civil Judge, Senior Division, Hathras, by the order dated 14th November, 2000, allowed the application and released the premises in favour of the landlord. Pursuant to the said order, an execution case has been registered as Execution Case No. 01 of 2002 for execution of the aforesaid order dated 14th November, 2000. Smt. Bhagwan Devi, wife of Kripa Shanker and Alok Dubey, son of Sri Krishna Dubey, filed the objection, under section 47 of the C.P.C. on the ground that initially the tenancy was in the joint name of Kailash Nath and Kripashanker, who were real brothers, and there was a joint family and they are the family members. The release application has been allowed against a dead person, which is nullity and, therefore, cannot be executed. The said application has been rejected by the Civil Judge, Senior Division, on 19th February, 2011 and the review application, filed against the said order, has also been dismissed on the ground that the persons, who filed the objection do not fall within the definition of the family as defined under the Rent Control Act and, thus, they have no locus to file any objection. It has also been stated that Hari Shanker Dubey was the sole tenant in the premises in dispute and it has no where been claimed in the written statement filed by him that there was a joint tenancy in the name of Kailash Nath and Kripa Shanker. The order dated 19th November, 2011 has not been challenged immediately Instead of challenging the said order, dated 19th February, 2011, the petitioner preferred a review application, which has been rejected by the order impugned dated 18th April, 2013 on the ground that no case for review has been made out. The Court below reiterated the view taken by it in the earlier order. It has been observed that an application has been moved by Smt. Bhagwan Devi in revision No. 2 of 1999 for her impleadment, which has been rejected on the ground that she does not fall within the definition of family member as defined under the Rent Control Act. The said order remained unchallenged and as such attained finality.
(3.) Learned Counsel for the petitioner submitted that the release application has been allowed against the dead person and, therefore, it is nullity and is not executable. He further submitted that the definition of family under the Rent Control Act is not exhaustive and it includes all the heirs of Hari Shanker Dubey, therefore, the Court below erred in rejecting the objection.;