Sudhir Narain Agarwal, J. - (1.) THIS writ petition is directed against the order dated 17th April, 1993, passed by respondent No. 2. Briefly the facts are that respondents 3 and 4 filed an application for release of the accommodation in question situate at Mohalla Bahadurganj, Shahjahanpur. It was alleged that originally the shop in question was let out to one Duli Chand and he carried on his Arhat business of foodgrains and Khandsari sugar etc., in the name and style of M/s. Kanhaiya Lal Duli Chand. The firm name was changed as M/s. K.D. Sales Corporation. Originally the said business was carried on by Duli Chand, Chandrabhan, Raghubar Daval and Shiv Lal. Shiv Lal died and his heirs, who are referred as opposite -parties 6 to 10 in the release application, carried on their business. The shop was constructed about one hundred years ago. The roofs of the building were Kachchi supported on wooden beams and Khapaties. The entire building has outlived its age and utility and is in a dilapidated condition which requires demolition and reconstruction. The said application was opposed by the opposite -parties who were arrayed as opposite -parties in the application. Sri Chandrabhan Agrawal was impleaded as opposite -party No. 2 in the application. He contested the application. The parties led evidence. The Prescribed Authority rejected the application by order dated 25th April, 1987. The landlord respondents filed Rent Appeal No. 80 of 1987 before the learned District Judge, Shahjahanpur. During the pendency of the appeal, Chandrabhan Agarwal, who was impleaded as respondent No. 2 in the appeal, died. An application for substitution was filed impleading his widow Smt. Munni Devi, Raj Kumar Agarwal, Sant Kumar Agarwal and his two daughters, viz., Smt. Meera Agarwal and Smt. Radha Agarwal. There were other tenants who were also parties in the appeal. The appeal was contested and after hearing arguments of learned counsel for the parties, the appeal was allowed by respondent No. 2 vide order dated 17th April, 1993. Writ petition No. 16635 of 1993 was filed by two sons, two daughters and widow referred to above besides other tenants, viz., Ashok Kumar and Raj Kumar Agarwal and M/s. R.D. Corporation. The writ petition was argued and after hearing learned counsel for the parties in the said case, the writ petition was dismissed by this court on 21st May, 1993. Against the judgment of this Court, Special Leave Petition was filed by Raj Kumar Agarwal and others in the Hon'ble Supreme Court which was registered as S.L.P. No. 9576 of 1993. Raj Kumar Agarwal and others v. First Additional District Judge and others. Their S.L.P. was dismissed by the Hon'ble Supreme Court vide judgment dated 29th July, 1993.
(2.) THE petitioner Smt. Mithlesh Kumari claims that she is one of the daughters of Chandrabhan Agarwal. The landlord -respondents have impleaded only the widow, two sons and two daughters of Chandrabhan Agarwal, but the petitioner was also one of the daughters of Chandrabhan Agarwal and she was not impleaded in the appeal and, therefore, the appellate order should be ignored as against her. It is not disputed that the landlord -respondents had filed application for substitution of the heirs of Chandrabhan Agarwal. His widow, two sons and two daughters were substituted in place of the deceased respondent in appeal. The petitioner has no where averred in the writ petition that the landlord -respondents deliberately omitted to implead the petitioner as one of the heirs of Chandrabhan Agarwal. Learned counsel for the petitioner contended that she is admittedly one of the heirs of Chandrabhan Agarwal and she has an independent right and in case she was not impleaded, the order of respondent No. 2 should be treated as nonest as against her. Learned counsel has placed reliance upon Kedar Nath Bose v. Fourth Additional District Judge, Allahabad and others, 1987 (1) ARC 378. In this case, one Chat Ram defendant in the suit had died during the pendency of the suit. An application for substitution of his two sons, viz., Ram Chandra and Mohan Lal were filed. Mohan Lal also died, but no heirs were substituted. The Court held that as no heirs of Mohan Lal had been substituted, the suit as against him abated. In this case, no heirs of Mohan Lal were substituted. In the present case, all the heirs of deceased Chandrabhan were substituted except the petitioner as claimed by her.
(3.) THE petitioner has not alleged that her brother's mother and other sisters did not represent the interest of the petitioner. The only question before the appellate authority was whether the disputed shop was in a dilapidated condition which requires demolition and reconstruction. Chandrabhan was only one of the respondents and there were other tenants who were also parties in the appeal as respondents and they contested the matter. Other hairs of deceased Chandrabhan also contested the matter and it is also clear that they also filed a writ petition in this Court challenging the order of the appellate authority and the order of this Court by way of S.L.P. before the Hon'ble Supreme Court.;