GUPTA, J. - (1.) HEARD learned counsel for the parties.
(2.) BY the impugned decree, the learned lower Appellate Court has decreed the plaintiff's suit for eviction on the ground of subletting, finding that the tenant defendant No. 1 Dwarka Das has sublet the premises (shop) to Khataumal. Regarding partnership it has been found, that the shop was sublet to Khataumal, as it is not shown that thereafter it reverted back to the original tenant, and thereafter partnership was entered into. Be that as it may. The appeal was filed challenging this finding, and contending, that in the circumstances of the case, it cannot be said that there has been any subletting. The decree was passed by the learned lower Appellate Court on 13. 8. 1999, and the present appeal was filed on 6. 10. 1999, therein the respondent appeared as caveator on 8. 10. 1999, on which date it was adjourned with the undertaking of the respondent that he will not execute the decree, and since then the matter is being adjourned. During pendency of this appeal as above, the learned counsel representing caveator happened to be elevated as Hon'ble Judge of this Court, and therefore, vide order dt. 10. 12. 2001 notice was ordered to be issued to the respondent, of the appeal as well as stay petition, and execution of the decree was stayed. Thereafter on 7. 2. 2005 an application was filed on behalf of the appellant under O. 22 Rule 3 CPC, alleging that the appellant No. 1 Dwarka Das has expired on 13. 11. 2004, leaving behind three legal representatives, and alleging that the deceased was ailing before death, and his son Sampat Raj was working with him before his death, therefore, prayer was made for substitution of legal representatives. Reply to this application was filed on 5. 7. 2005, disputing the deceased to be ailing before death, or Sampat Raj working with the deceased. It was pleaded that Sampat Raj was carrying on independent business, in the name and style of Rahul Kangan Store in Laxmi Bazar, Chiranjiyo Ka Jal, which business is still continuing, and the allegation that Sampat Raj was working with the deceased is ex-facie wrong. It was also contended that the other three defendants were sub tenants; while according to the deceased defendant they were not subtenants but then defendants No. 3 and 4 were his partners, while defendant No. 2 being the father of defendants No. 3 and 4 was sitting on the shop, and it has been found that the partnership was entered into in the year 1985. In such circumstances, it was contended that when the shop was being run by the defendants No. 3 and 4 Jhamandas and Ramesh Kumar, it does not stand to reason that Sampat Raj was working with the deceased before his death, and it was given out that Sampat Raj does not fall within the definition of tenant as contained in Section 3 (vii) of the Rajasthan Premises (Control of Rent & Eviction) Act, hereafter referred to as the Act, therefore, the protection of the Act is not available to the appellants, and the appeal is liable to be dismissed. Arguing this application, learned counsel for the appellant submitted, that Full Bench of this Court in, Smt. Ramjeevani vs. Narati Bai reported in 1991 (1) RLW 222 has held that the requirement of carrying on business with the deceased at the time of his death is not applicable as conjunctive condition, where the legal representatives are spouse, son and daughter, and this requirement is applicable only where the legal representative is other legal heir in accordance with the personal law, and since Sampat Raj is his son, the protection is available. Learned counsel also pointed out the two subsequent judgments of this Court, in Smt. Usha vs. Sukhsampat Mal reported in 1995 (1) RLW (Raj.) 14, Chiman Lal vs. Narendra Kumar reported in 1995 DNJ (Raj.) 563, wherein the contrary view has been taken, by holding, that the judgment in Ramjeevani's case is no more a good law. These two judgments are Single Bench judgments, while the judgment in Ramjeevani's case is Full Bench judgment. According to the learned counsel the question is required to be gone into, and the protection is available to wife, sons and daughter, irrespective of the question as to whether they were carrying on business with the deceased or not, even if it is assumed that Sampat Raj was not carrying on business with the deceased at the time of his death.
(3.) LEARNED counsel for the respondent, on the other hand, relying upon a judgment of this Court in Mohd. Kasam vs. Ghasi Lal reported in 2003 (3) DNJ (Raj.) 1477 = (RLW 2004 (1) Raj. 60) submitted that the judgment in Ramjeevani's case does not hold good, as Ramjeevani's case does not consider the judgment of Hon'ble the Supreme Court in Tara Chand vs. Ram Prasad, reported in (1990) 3 SCC 526, it is no more a good law, and the appeal cannot be entertained, as the other three defendants are subtenant, and therefore, the protection is not available to the legal representatives. Learned counsel for the appellant then contended that it has categorically been alleged in the application, that Sampat Raj was carrying on business with the deceased since before his death, and that the firm is not tenant, and in any case even if the deceased entered into partnership, during lifetime of the deceased, Sampat Raj was looking after the business of the father, and therefore, Sampat Raj is required to be impleaded as party, and is entitled to protection. On the other hand, learned counsel for the respondent maintained the stand taken in para 3 of the reply. ;