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.
3. 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.
4. Section 3(VII)(b) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short 1 the 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."
5. 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.
6. 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.
7. A Constitution Bench of the Hon'ble Supreme Court in Kailash Chandra v. Union of India and Ors. (1), considered the meaning of word "ordinary" and held that it means "in the large majority of cases but not invariably".
8. In Krishan Gopal v. 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".
9. In Union of India v. 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.
10. Similar view has been reiterated in Union of India v. Vipinchandra Heeralal Shah (4), observing that for good reasons deviation from requirement of rule is permissible if the word "ordinarily" is there in the enactment.
11. In Eicher Tractors Ltd., Haryana v. Commissioner Of Customs, Mumbai. (5), the Supreme Court held that word "ordinarily" necessarily implies the exclusion of "extra-ordinary" or word "special circumstances".
12. A Full Bench of this Court in Narainlal v. State of Rajasthan (6), held that word "ordinarily" implies that in extra-ordinary circumstances the competent authority may deviate from the ordinary procedure. This, it is not mandatory to ensure the compliance of the said rule in all the circumstances.
13. In view of the above, it can be held that unless there are compelling circumstances, requirement of rule must be complied with. However, if the circumstances so demand the deviation thereof is permissible.
14. The issue involved here is no more res-integra and has been considered by the Apex Court as well as by this Court from time to time.
15. In Gordhan Lal v. Panna Lal and Anr. (7), this Court considered the same issue and held that only those legal heirs who were carrying on business with the deceased tenant can be substituted and if no legal heir was carrying on the business with the deceased tenant, the suit/ appeal would abate on the death of the sole tenant. This Court distinguished the judgment of the Hon'ble Supreme Court in Smt. Gain Devi Anand v. Jeevan Kumar and Ors. (8), wherein, while interpreting the provisions of Delhi Rent Control Act, the Supreme Court held that all the legal heirs, irrespective of whether they had been working with the deceased tenant or not in the suit premises, have to be substituted for the reason that heirs of the statutory tenant are entitled to some protection against eviction as afforded to tenant under the act. Delhi Rent Control Act does not restrict the heirship even in respect of commercial premises, which has been restricted in the Act, 1950.
16. A Full Bench of the Court again considered this issue in Smt. Ramjeevani and Ors. v. Smt. Narati Bai (9), and held that under the provisions of the Act, 1950, the tenant had to be substituted by the spouse, son, daughter and all other legal heirs even if they were not carrying on the business along with the deceased tenant. Therefore, it was not necessary to fulfill both the conditions for substitution i.e. that they must be legal heir and they must be carrying on the business with the deceased tenant in the suit premises upto his death.
17. The Hon'ble Supreme Court considered the said provisions of the Act, 1950 in Tarachand and Anr. v. Ram Prasad (10), and observed as under:-
"Similarly in respect of premises leased out for commercial or business purposes, it must be established that the surviving spouse or son or daughter and the heir, as the case may be, ordinarily had been carrying on the business during the life time of the tenant as members of the family in the demised premises and continued to do the business till date of the death of the tenant. In other words to avail of the statutory right Under
section 3(vii)(b) there must continue to subsist the unity of action and continuity of membership of the family between the deceased tenant and the spouse etc. The break in either of the links snaps off the right denuding the continuity of the statutory tenancy."
18. In view of the aforesaid judgment of the Supreme Court, both the conditions have to be fulfilled i.e. he must be a legal heir as well as he must carry on the business with the deceased tenant upto his death otherwise he shall not be entitled to be substituted on the death of tenant.
19. In Chiman Lal and Anr. v. Narendra Kumar (11), this Court while considering the same issue held that the Full Bench judgment of this Court in Smt. Ramjeevani (supra) was not a good law in view of the judgment of the Supreme Court in Tarachand (supra) and the question of substituting the legal representatives as a tenant would not arise unless they fulfill both the conditions provided in the Section.
20. In Navneet Rai v. Otmal (12) and Gopikishan v. Bajrang Lal and Anr. (13), this Court restricted the substitution only of those heirs, who fulfilled both the conditions contained in Section 3 (VII)(b) of the Act, 1950 in view of the judgment of the Hon'ble Supreme Court in Tarachand (supra).
21. In Smt. Bhajni Devi Wd/o Shri Lal Chand and Anr. v. Ram Ratan (14), this Court held that a legal heir unless found to have been carrying on the business with the tenant upto his death shall be substituted as a tenant on his death. However, whether a legal heir ordinarily carrying on the business with the tenant is a question of fact and evidence is to be led by the parties on that issue.
22. In Kesar Devi v. Shiv Ratan and Ors. (15), this Court held that even in case of residential premises only those legal heirs who were ordinarily residing with the tenant upto his death shall be substituted. The Court further held that as they tenancy is governed by the statutory provisions of section 3(vii)(b) of the Act, 1950, it cannot be treated as a joint tenancy and heirs cannot claim substitution in their own rights unless both the conditions are fulfilled.
23. In Bharat Singh v. Bharat Kumar (16), this Court held that for the purpose of substitution in place of a tenant under section 3(vii)(b) of the Act, 1950, both the conditions have to be fulfilled. The Court observed as under:-
"Since it is necessary for continuation of tenancy that the person claiming to be the tenant in place of the original deceased tenant should be an heir as well as a person carrying on business as member of the family with the deceased in the premises."
24. In Hardev v. Jaidev (17), a similar view has been reiterated.
25. In Ankur Sharma v. Smt. Darshan Ball and Ors. (18), this Court considered the case where the trial Court dismissed the application for substitution by a minor on the death of his father and the court distinguished the provisions of Delhi Rent Control Act from the Act, 1950 holding that under the provisions of Delhi Rent Control Act in case of commercial premises the heir of the deceased tenant not only succeed to the tenancy rights in the premises but also to the business as a whole. As the provisions in the Act, 1950 are entirely different only those heirs who were continuing the business with the tenant upto his death shall be entitled to be substituted.
26. In view of the aforesaid judgment, it is evident that for the purpose of substitution in view of the provisions of section 3(vii)(b) of the Act, 1950, where must be unity of action and continuity of the membership of the family between the tenancy and the spouse, or son or daughter and in case they link does not subsist or cease to subsist, it would snap the right of inheritance which has renewed the continuity of statutory tenancy under the said provisions.
27. In the instant case, the learned trial court as allowed the application to bring all the legal heirs on record without asking the parties to lead evidence as to who had been carrying on the business with the deceased tenant upto his death. This, I find no force in the submission of Shri G.R. Singhvi that the Court below has proceeded correctly and the Court must hold an inquiry on this issue at this stage for the reason that the Court could have asked the parties to lead evidence on that issue at the same time in order to save the labour and time of the Court and expenses of the parties.
28. In view of the above, both the petitions succeeds and are allowed. The impugned orders dated 31.7.2001 are hereby set aside and in the facts and circumstances of the case it is desirable that the matter be remitted back to the learned appellate court to permit the parties to lead evidence on the issue as to whether which of the legal heirs had been carrying of the business with the deceased tenant in the suit premises upto his death and pass the appropriate order of substitution. As the matter is pending since long, it is desirable that the appellate court may decide the matter afresh after allowing the parties to lead evidence within a period of four months from today. The parties are directed to appear before the first appellate court on 12.8.2002.