- (1.) J. C. Gupta, J. Heard petitioner's Counsel. Shri Vijay Bahadur holding brief of Shri Rajesh Srivastava, learned Counsel for the respondent No. 3, is also present.
(2.) THIS is a petition challenging the order dated 17-1-1998 passed by respon dent No. 1 rejecting the review application filed by the petitioner. It may be relevant to put the facts in brief. An application under Section 21 (1) (a) of the Act was moved by the landlord against the original tenant Kalka Prasad on the ground of bona fide. need, and the same was rejected. An ap peal was filed by the landlord against the said order and during the pendency of the appeal, the tenant Kalka Prasad died on 4-3-1992. His wife through her daughter as guardian was brought on record as the tenant of the accommodation in question. Appeal was allowed. Against this order the writ petition filed by the wife of the deceased- tenant before this Court was dis missed on 29th September, 1994. After dismissal of the wri t petition, the son of the deceased-tenant, the present petitioner, filed a review application before the Ap pellate Authority stating therein that he was residing with the deceased-tenant in the disputed house and since he was not brought on the record, the order passed by the Appellate Court was a nulity. THIS review application was rejected by the lower Appellate Court by the order dated 7-12-1994. The petitioner challenged the said order in writ petition No. 40874 of 1994 and it was urged before this Court at that time that the review application of the petitioner was rejected only on the ground that the appeal was not pending and no finding was recorded on the questions as to whether the petitioner was residing with his father at the time of his death and whether he had knowledge of the proceed ing in appeal and whether his sister had colluded with the landlord. THIS Court found force in the above submission of the petitioner and set aside the order dated 7-12-94 and directed the lower Appellate Court to decide the review petition afresh. After the remand of the case by this Court, the lower Appellate Court went into the merit of the review application and has rejected the same by the impugned order which has been challenged in this writ petition. A perusal of the impugned order would indicate that the Court below has come to a finding that it was not proved that the petitioner was normally residing with his father in the disputed house at the time of his death. It has also been found that it was not proved that there was any collusion between the sister of the petitioner and the landlord. On issue No. 3 also the finding has been recorded against the petitioner that he had the knowledge of the pendency of the appeal.
(3.) LEARNED Counsel for the petitioner contended before me that the petitioner, who was posted at Saharanpur in service, was often coming in the disputed house and was residing with his father at the time of his death. He also contended that the finding recorded contrary to this assertion of the petitioner is perverse. Section 3 (a) defines the word 'tenant'as follows: " Tenant' in relation to a building, means a person by whom rent is payable, and on the tenant's death: (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; (2) in the case of a non-residential build ing, his heirs. ";