- (1.) This second appeal arises out of judgment and decree dated 1.9.87 passed by the Additional District Judge Karauli dismissing the appeal of Nanne Khan and Kamruddin filed by them against the judgment and decree dated 9.8.79 passed by the Munsiff & Judicial Magistrate, Karauli ordering their eviction. Plaintiff/respondent Ram Dass filed a suit for rent and ejectment against Nanne Khan and Kamruddin with the allegations that he was owner of the premises situated in the city of Karauli which had been let out to the defendants. Defendants have failed to make payment of due rent and that they were causing nuisance in the tenanted premises. Defendants filed a joint written statement and denied the allegations contained in the plaint. They stated that they have not committed any default in payment of rent. Premises has been let out for residential purposes and they were not guilty of committing nuisance. Trial Court framed issues on the questions of denial of title and the rate of rent. On the basis of evidence led by the parties, the Trial Court held that agreed rent was at the rate of Rs. 8/- per month in the first year of tenancy and thereafter it was Rs. 12 per month. Trial Court also held that suit premises had been taken on rent for the purpose of a shop but it was being used for residential purposes and in this manner credit of the shop has been adversely affected. Trial Court held that termination of tenancy was valid. It also held that tenant had denied the title of the landlord and, therefore, he had forfeited his right to continue as tenant. On that basis the Trial Court passed a decree against the appellant Nanne Khan and Kamruddin.
(2.) Defendants filed appeal against the judgment and decree of the trial court. The same was dismissed by the appellate court on 16.2.84. Second appeal was filed by Nanne Khan against the judgment & decree of the appellate court. During the pendency of second appeal No. 84/84 Nanne Khan v. Ram Dass, an application was filed by the plaintiff-respondent under order 22 Rule 9 and Rule 10A read with Section 151-A C.P.C. In the said application he stated that Kamruddin had died on 16.1.80 during the pendency of appeal before the Additional District Judge but his legal representatives had not been brought on record. This Court set aside the judgment of the appellate Court and remanded the case to the first appellate court for deciding legal aspect of the death of Kamruddin. After remand by this Court, the trial court again considered the case and held that since legal representatives of Kamruddin had not been brought on record despite his death during the pendency of appeal, the appeal will be treated as having been abated. On that basis the appellate court has decided the case and declared the appeal of Nanne Khan and Kamruddin as abated. Right of the heirs of the tenant of a commercial premises has become a subject matter of various decisions of the Apex Court and this Court. It may have been necessary for this Court to examine this point in detail but in view of the decision of the Full Bench of this Court in Smt. Ramjeevani and others v. Naurati Bai,1989 2 RLR 308, which is in turn based on the decisions of the Supreme Court in Smt. Gyan Devi Anand V. Jeevan Kumar and others,1985 AIR(SC) 789, the point must be taken as concluded. Full Bench has considered the definition of the term 'tenant' as given in Section 3(vii) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and held as under :- "For the reasons mentioned above, we are of the opinion that clause (b) of the definition of 'tenant' contained in Sub-Section (vii) of Section 3 of the Act means that the protection of the Act is available to the spouse, son and daughter of the deceased statutory tenant and the said heirs are not required to fulfil the further condition laid down in the latter part of the said clause, viz that in case of premises leased out for residential purposes they must have been ordinarily residing with the deceased statutory tenant in said premises upto his death and in the case of premises leased out for commercial or business purposes they must have been ordinarily carrying on business with the deceased statutory tenant in such premises upto his death. The other heirs of the deceased statutory tenant according to his personal law, in order to avail the protection of the Act will, however, have to satisfy the said conditions laid down in the latter part of clause (b) of the definition of 'tenant'. The decisions of the learned Judges of this Court, referred to above, on which reliance was placed by Shri Lodha, wherein it has been held that the latter part of clause (b) of the definition of 'tenant' contained in Sub-Section (vii) of Section 3 of the Act also qualifies the expression 'his surviving spouse, son, daughter do not, in our opinion, correctly interpret the provisions of clause (b) of the definition of 'tenant' contained in Sub-Section (vii) of Section 3 of the Act and for the reasons mentioned above, we are unable to endorse the view taken in those decisions." A somewhat similar view has been expressed in Rajendra Kumar and others v. Kanhaiyalal and others,1989 1 RLR 503. In view of the decision of the Supreme Court in Gyan Devi Anand's case (supra) as well as Full Bench decision in Smt. Ramjeevani's case (supra), decision of this Court in Hiranand v. Abdul Sattar,1975 WLN 30, which is based on the earlier decisions of the Supreme Court in Anandniwas (P) Ltd. v. Anandji Kalyanji Pedi, 1965 AIR(SC) 414 and I.C. Chatterjee and others v. Shrikrishan Tandon and another, 1972 AIR(SC) 2526, cannot be treated as good law. Likewise decision of the Karnataka High Court in Vishnu Narain v. Bal dev and others, 1978 1 RCJ 561, cannot be treated as good law. In Hiranand's case (supra) as well as in Vishnu Narain's case (supra) learned Single Judges of this Court and Karnataka High Court have taken the view that heirs of the tenants of the non-residential premises/commercial premises do not have a right to be treated as tenant and this proposition is clearly contrary to the decision of the Supreme Court as well as Full Bench decision of this Court.
(3.) Learned Appellate Court has examined the question of abatement on the basis of the following direction given by this Court:;