R.P.Singh - (1.) -This writ petition is directed against an order passed by the XIIth Additional District Judge, Meerut, dated 4-11-1987, rejecting an application for substitution of heirs of the deceased tenant-Ved Prakash and dismissing the appeal as having abated.
(2.) THE facts of the case briefly are that one Ved Prakash father of the present petitioner was the tenant of the accommodation in dispute of which respondent no. 2 Smt. Shanti Devi Dhawan, is the landlady. THE respondent no. 2 filed an application for release of the accommodation under section 21 (1) (a) of U. P. Act XIII of 1972 on the ground that the same was required for her residents after her retirement and her need for the same is bonafide and genuine. THE Prescribed Authority being satisfied that the need of respondent no. 2 for the accommodation in dispute is bonafide and genuine, allowed the application for release. Feeling aggrieved, Ved Prakash, the tenant who is the father of the present petitioner C. P. Gautam, went up in appeal before the Additional District Judge. However, during the pendency of the appeal Ved Prakash died upon which the petitioner C. P. Gautam moved an application for bringing the legal representatives of Ved Prakash on record stating therein that Ved Prakash died leaving six sons and seven daughters who may be substituted in place of Ved Prakash in the appeal pending before the Additional District Judge. THE Additional District Judge, however holding that since the disputed accommodation was a residential building and only such of his heirs as normally residing with the tenant Ved Prakash in the building at the time of his death could alone inherit the tenancy and be substituted in his place and since none of his sons and daughters were normally residing with Ved Prakash deceased in the building in question at the time of his death none of them could be substituted in place of the deceased and passed the impugned order dismissing the appeal as having become infructuous which is in challenge in the present writ petition. Heard Sri P. K. Jain for the petitioner and Sri V. C. Mishra for the respondent. The learned counsel for the petitioner contended that sub-section (4) of section 34 of U. P. Act XIII of 1972 hereinafter referred to as the Act, provides for the substitution of legal representatives of the deceased party to the proceedings under the Act and sub-Rule (1) of Rule 25 provides that such application for substituting the names of the heirs shall be filed within one month from the date of death of such person. Sub-section (4) of section 34 of the Act runs as follows : " (4) where any party to any proceeding for determination of standard tent of or for eviction from building dies during the pendency of the proceeding such proceeding may be continued after bringing on record : (a) in case of a landlord or tenant, his heirs or legal representatives; (b) in case of unauthorised occupant, any person claiming under him or found to be in occupation of the building. " Sub-Rule (1) of Rule 24 runs as follows : " (1) Every application for substituting the names of the heirs and the legal representatives, the claims or occupation of any person who was a party to any proceedings under the Act and died during the pendency of the proceedings, shall be preferred within one month from the date of the death of such person." Placing reliance on section 34 and Rule 25, as stated above, the learned counsel for the petitioner submitted that the legal heirs and representatives could be brought on record and the appeal should have been decided on merits after impleading the legal heirs and representatives of the deceased Ved Prakash.
(3.) THE learned counsel for the respondent submitted in reply that the word 'tenant' has been defined in section 3 of the Act which runs as follows : " 3 (a) 'tenant' in relation to a building means a person by whom its rent is payable and on tenant's death- (i) in case of a residential building, such only of his heirs as normally residing with him in the building at the time of his death; (ii) in case of a non-residential building his heirs. " Placing reliance on the difinition of the word 'tenant' the learned counsel for the respondent contended that only such of the heirs of the deceased as normally residing with him in the building at the time of his death alone could inherit the tenancy and entitled to be substituted as tenant in place of the deceased and since none of his legal heirs and representatives were normally residing in Meerut with Ved Prakash deceased in the building at the time of his death, none of them could be substituted as tenant in place of the deceased Ved Prakash and hence the learned Additional District Judge rightly rejected the application for substitution and dismissed the appeal as having become infructuous. The learned counsel for the petitioner contended that though the petitioner C. P. Gautam gave an application for substituting the legal heirs and representatives of the deceased Ved Prakash in place of the deceased, in any case, atleast the petitioner C. P. Gautam who was transferred from Delhi to Meerut on 27-3-1987 and residing in the building at the time of the death of Ved Prakash on 15th April, 1987, could inherit the tenancy and entitled to be substituted in place of the deceased Ved Prakash. The learned counsel for the petitioner further submitted that in any case, the heirs should have been brought on record in the appeal and then the appeal could have been decided on its own merits. I find no merits in this submission. In the substitution application moved by the petitioner C. P. Gautam, the petitioner has given the names and addresses of the six sons and seven daughters of the deceased Ved Prakash which shows that all the sons and daughters are married and settled out side Meerut in connection with their employment and hence none of them could be held to be normally residing with the tenant Ved Prakash deceased at the time of his death. So far as the case of C. P. Gautam is concerned, it is admitted that he was in service in the Defence Department in New Delhi and residing in the official accommodation allotted to him on Lodi Road, New Delhi. The case of the petitioner is that a few days before his death the petitioner was transferred to Meerut on 27-3-1987 and started living with his father in the disputed building. However, in paragraph 20 of the counter affidavit filed by the landlady, it is stated that after the transfer of the petitioner to Meerut, he was allotted government accommodation in Quarter No. C-6/6 Lekha Nagar, Roorkee Road, Meerut Cantt. and has been given vacant possession of the accommodation allotted to him by the department and that the petitioner is getting about Rs. 500/- as house allowance from the department. The reply to this averment is contained in paragraph 19 of the rejoinder affidavit filed by the petitioner where this fact is not denied that the petitioner has been allotted the official accommodation in Quarter No. C-6/6 Lekha Nagar, Roorkee Road, Meerut Cantt. and it has only been stated that the petitioner on his transfer to Meerut has no house in his power, possession and ownership at Meerut except the disputed house. Hence there is no denial of the fact that the petitioner has been allotted an official accommodation in Meerut Cantt. and has been handed over its vacant possession. Moreover, the petitioner came only a few days before the death of his father Ved Prakash deceased. The petitioner shifted to Meerut on 27-3-1987 while Ved Prakash deceased died on 15-4-1987 and hence it cannot be said that the petitioner was normally residing with his father Ved Prakash in the building at the time of his death and, as such, the petitioner could not inherit the tenancy from his father Ved Prakash and could not become a tenant of the building in question.;