CHAUHAN, J. - (1.) BOTH these revision petitions have been filed by the petitioner against the order dated 31. 7. 2001 passed by the learned Additional District and Sessions Judge, Jodhpur allowing the application of the non-petitioner under Order 22 Rule 3 of the Code of Civil Procedure (for short `the Code') and rejecting the application of the petitioners under Order 22 Rule 5 of the Code.
(2.) THE facts and circumstances giving rise to this case are that the non-petitioner had filed a suit for eviction against the predecessor in interest of the petitioners on the ground of personal necessity. After trial, the learned Trial Court dismissed the suit vide judgment and decree dated 7. 8. 1995. Being aggrieved and dissatisfied, the non-petitioner preferred the appeal against the said judgment and decree dated 7. 8. 1995. During the pendency of the appeal, the tenant-predecessor in interest of the petitioners/respondents died on 6. 2. 2001. THE petitioners filed an application under Order 22 Rule 5 of the Code to substitute the petitioners only in his place while the non-petitioner/appellant filed an application under Order 22 Rule 3 of the Code to implead the widow, son and 8 daughters of the deceased respondent. THE appellate court allowed the application of the non-petitioner/appellant taking all the legal heirs on record and rejected the application of the petitioners only to implead the petitioners as legal heirs. Hence these revision petitioners. It has been submitted by the learned counsel for the petitioners that as the law permits only those persons to be tenant who were the family members/legal heirs of the deceased- tenant who were carrying on the business with the tenant, only petitioners could have been substituted. On the other hand, it has been submitted by Shri Singhvi, learned counsel for the Non- petitioner that legal heirs who could have a right to succeed the estate of the deceased have to be substituted though they may not be tenant, for not carrying on the business with the deceased tenant, the orders impugned do not require any interference. Section 3 (VII) (b) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short 1the Act, 1950') defines tenant as under:- ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) In the event of death of the person as is referred to in sub-clause (a), his surviving spouse, son, daughter and other heir in accordance with personal law applicable to him who had in the case of premises leased out for residential purposes, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family up to his death. " The question does arise as to whether in respect of premises taken on rent for commercial purposes, the legal heir of the tenant who was carrying on business with him in such premises, can be substituted on the death of the tenant or even the legal heir who had not been carrying on business with him during his life time can also be substituted. Much emphasis has been given by the learned counsel for the parties on the word "ordinarily" and it has been submitted by Ms. Vijaylaxmi that generally the person carrying on business with him shall be substituted as a legal heir.
(3.) A Constitution Bench of the Hon'ble Supreme Court in Kailash Chandra vs. Union of India & Ors (1), considered the meaning of word "ordinary" and held that it means "in the large majority of cases but not invariably". In Krishan Gopal vs. Shri Prakash Chandra and Ors (2), the Apex Court explained that "ordinarily" means "normally but there can be deviation of the rule if the circumstances so demand and it makes relaxation in compliance of the rule permissible". In Union of India vs. Majji Jangammayya (3), the Hon'ble Supreme Court held that where the terms "ordinarily" has been used in a provision, there can be deviation from the requirement of provision of such deviation can be justified by the reasons. ;