Shambhu Nath Srivastava, J. - (1.) THIS writ petition is directed against the order dated 4th February, 2000 passed by II Additional District Judge, Pratapgarh dismissing the appeal filed under section 22 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) as having become infructuous and thereby stood abated. The matrix of the facts relevant for the purposes of the present writ petition are that one Ram Adhar Tewari, father of petitioners was tenant of the premises in question. Landlords -contesting respondent Nos. 2 to 11 filed an application before Prescribed Authority under section 21(1) of the Act for release of house No. 206, Mohalla Paltan Bazar, Town and District Pratapgarh on the ground of personal need of Applicant No. 11 Smt. Lalmani Devi, widow of Mathura Prasad Agrawal. Ram Adhar Tewari father of petitioners filed written statement and denied the allegations, bonafide need and comparative hardship. Prescribed authority vide its judgment dated 24.5.1995 allowed the application and passed an order of release in favour of contesting respondents. An appeal was preferred by Ram Adhar Tewari against the aforesaid judgment of Prescribed Authority. During the pendency of the appeal Ram Adhar Tewari died on 19.1.1999. An application for substitution was filed by the petitioners for substituting them in place of their father -Ram Adhar Tewari. An objection was filed by contesting respondents to this substitution application. It was averred in the objection that petitioners were normally not residing along -with their father -Ram Adhar Tewari at the time of his death, hence they cannot be deemed to be tenants. During pendency of the application Smt. Lal Mani Devi died and an application was moved by heirs of Ram Adhar Tewari to delete the name of Smt. Lal Mani Devi on the ground that her heirs are already party to the appeal hence there is no need to substitute heirs of Smt. Lal Mani Devi and after the death of Smt. Lal Mani Devi need of premises in question also came to an end.
(2.) IN Appeal the Appellate Court held that none of the legal heirs of Ram Adhar Tewari were normally residing with him in residential building in question at the time of his death. Therefore, none of them could be legally substituted in his place and appeal became infructuous, hence stood abated. Learned Counsel for petitioners urged that under the Act there is no provision for abatement of any proceeding. He further urged that since very beginning petitioners were residing alongwith their father and are still residing in the premises in question. He further argued that the order passed by Appellate Court holding that petitioners were not residing alongwith their father at the time of his death is perverse and was passed ignoring a number of evidence (materials) filed before the Appellate Court. It was further urged that the application for substitution was liable to be allowed and Appellate Court erred in law in dismissing the appeal as having become infructuous and passed order of abatement.
(3.) IN reply to the arguments of learned Counsel for petitioners, learned Counsel for contesting respondents urged that none of the petitioners were residing with their father at the time of his death and they are not heirs or legal representatives and cannot be termed to be a tenant. He further urged that proceedings under section 21 of the Act in a pending appeal may continue against a tenant only and not against a person who is not recognized as a tenant in law. Learned Counsel further urged that the order passed by appellate authority was rightly passed on appraisal of evidence. Learned Counsel for contesting respondents also filed a number of judgments including C.P. Gautam v. 12th Additional District Judge, Meerut : 1988 (14) ALR 77 (Sum) : 1988 All LJ 961, Dr. Ram Narain Baghley v. District Judge, Saharanpur, 1997 (29) ALR 471 and Gauri Shanker Sharma v. 4th Additional District Judge, Agra, 1998 (34) ALR 19, in support of his case.;