- (1.) In this writ petition, an information was given by the respondents that respondent 3 Avtar Singh has died on 25.12.2010 and his legal representatives have been working in the disputed shop as family members of the deceased tenant since his lifetime, therefore, legally it is duty of the petitioner to take necessary steps in the regard because the legal representatives of the deceased tenant are carrying on business as tenants in the disputed shop. The above information was given under Rule 10-A of Order 22, C.P.C., read with Article 226 of Constitution of India. A reply to the application was filed by the petitioner, in which, it is stated that no death certificate of late Avtar Singh has been filed, therefore, the information sought to be given is absolutely vague and further it is pleaded has so far as the question of bringing legal representatives of late Avtar Singh on record is concerned, the tenancy in question relates to the premises let out for commercial purpose, therefore, in terms of Section 1(i)(b) of the Rent Control Act, 2001 the legal heirs of the deceased tenant shall not step into the shoes of the tenant because they will not fall within the definition of tenant because tenancy is not heritable.
(2.) It is also specifically pleaded that before the trial Court it has never been the case either in the written-statement or in the affidavit filed by the deceased that any one of his family-members is carrying on business with him. On the contrary, in categorical terms it is stated in the written-statement as well as in the affidavit that he is carrying on business with persons arrayed as respondents in the application submitted before the Rent Tribunal, therefore, it is prayed that in view of the clear pleadings and the case set out before the Rent Tribunal and Appellate Rent Tribunal the respondents cannot set up excluding the pleadings and material on record. Therefore, it is prayed that if the factum of death of respondent Avtar Singh may be struck off from the array of parties as respondent 3.
(3.) For the prayer made in the reply to the application filed under Order 22 Rule 10-A, C.P.C. by the respondents with regard to deletion of name of deceased Avtar Singh, objection has been raised that prayer of the petitioner (landlord) regarding deletion of name of Avtar Singh from the array of respondents cannot be allowed for the following reasons : (A) Late Avtar Singh was carrying on his business in the name and style of M/s. Indrajeet General Stone during his life-time and, during his life-time, his family members viz., Rajendra Kaur, wife, Satpal, son and two daughters were also carrying out kirana business in the premises in question as his family members. The wife of late Avtar Singh and two daughters were always helping him in the business; therefore, the contention of landlord that tenancy right has not been devolved upon his family members upon his death is totally false. (B) Unless and otherwise opportunity of hearing is offered to the legal representatives of late Avtar Singh it cannot be adjudicated whether the legal representatives of late were carrying on kirana business in the disputed premises with him as his family members during his life-time or not. Therefore, for that purpose opportunity of hearing is necessary to the legal representatives of late Avtar Singh. (C) As per Rule 5 of order 22 of the Code of Civil Procedure where a question arises whether a person is or not legal representative of deceased tenant such question shall be decided after providing opportunity of hearing to both the parties. It is also pleaded that as per proviso to above rule if such question arises before the appellate Court, then, that Court before determining the question, direct any subordinate Court to return the record together with evidence if any recorded at such trial. Therefore, as per mandatory provisions of law, the present dispute with regard to tenancy right of the legal representatives of late Avtar Singh is required to be determined by the Rent Tribunal after providing opportunity of hearing to both the parties. Therefore, the matter may be remitted to the Rent Tribunal for determining the question of tenancy rights of the legal representatives of late Avtar Singh.;