# Gauri Shanker Gupta v. Anita Misra and another

- **Citation:** (2004) 1 ILRA 6
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-12-01
- **Case number:** Civil Misc. Revision No. 702 of 2003
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gauri-shanker-gupta-v-anita-misra-and-another-40279
- **Pages:** 2

## Headnote

Provincial Small Causes Courts Act,
Section
25-UP
Urban
Buildings
&
Regulation of letting, Rent and Eviction)
Act 1972, Section 3 (a)-necessary partysuit for ejectment and arrears of rentsub tenant being son of the Chief tenantmoved impleadment-rejection thereofheld not proper generally sub tenant is
not necessary party but after death of
tenant in non residential building-all the
hair must be impleaded as necessary
party.

Held- Para 4 and 6

It is settled law that the sub tenant is
not a necessary party to a suit for
eviction filed against the chief tenant
and decree for eviction passed against
chief tenant is binding upon sub tenant.
However, even in the case of sub tenant,
it has been held by the Supreme Court
that in case, he applies for impleadment
during the pendency of a suit for
ejectment and on the objection of the
landlord his application is rejected then
he cannot be evicted under decree of
eviction against the chief tenant (vide
AIR 2002 SC 804).

Accordingly, the revision is allowed. The
impugned
order
is
set
aside
and
revisionist
Gauri
Shankar
Gupta
is
directed to be impleaded as defendant
no.2 in the SCC Suit No. 42 of 2001,
pending before the Additional District
Judge, Court No.2, Kanpur Nagar.

## Text

http:\\allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
6
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 1.12.2003

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Revision No. 702 of 2003

Gauri Shankar Gupta

...Applicant
Versus
Anita Mishra and another ...Respondents

Counsel for the Revisionist:
Sri S.N. Dubey

Counsel for the Respondents:
Sri S.K. Gupta

Provincial Small Causes Courts Act,
Section
25-UP
Urban
Buildings
&
Regulation of letting, Rent and Eviction)
Act 1972, Section 3 (a)-necessary partysuit for ejectment and arrears of rentsub tenant being son of the Chief tenantmoved impleadment-rejection thereofheld not proper generally sub tenant is
not necessary party but after death of
tenant in non residential building-all the
hair must be impleaded as necessary
party.

Held- Para 4 and 6

It is settled law that the sub tenant is
not a necessary party to a suit for
eviction filed against the chief tenant
and decree for eviction passed against
chief tenant is binding upon sub tenant.
However, even in the case of sub tenant,
it has been held by the Supreme Court
that in case, he applies for impleadment
during the pendency of a suit for
ejectment and on the objection of the
landlord his application is rejected then
he cannot be evicted under decree of
eviction against the chief tenant (vide
AIR 2002 SC 804).

Accordingly, the revision is allowed. The
impugned
order
is
set
aside
and
revisionist
Gauri
Shankar
Gupta
is
directed to be impleaded as defendant
no.2 in the SCC Suit No. 42 of 2001,
pending before the Additional District
Judge, Court No.2, Kanpur Nagar.

(Delivered by Hon'ble S.U. Khan, J.)

1. This revision u/s 25 PSCC Act,
has been filed by Gauri Shankar Gupta,
whose impleadment application in SCC
Suit No. 42 of 2001 has been rejected by
Additional District Judge, Court No. 2,
Kanpur Nagar, through order dated
24.7.2003
impugned
in
the
instant
revision. The suit has been filed by the
plaintiff/ respondent no. 1, Anita Mishra,
against the respondent no. 2, Azad
Kumar. True copy of the plaint is
annexure 1 to the affidavit, filed in
support of stay application. In para 4 of
the plaint, it is stated that previously Ram
Autar, father of defendant (i.e. Azad
Kumar) was the tenant of the shop in
dispute and after his death. Azad opted for
tenancy and signed the counter foils of
receipts and he alone made payment of
rent. In para 2 of the plaint it has been
stated that the shop in dispute is new
construction, hence provisions of U.P. Act
No. 13 of 1972 do not have any
application and assuming it to be within
the ambit of the said Act, a clear case of
default has been made out. Relief for
eviction and recovery of arrear of rent etc.
has been sought through the said plaint.
Revisionist Gauri Shankar Gupta applied
for impleadment on the ground that he
was also son of Ram Autar, father of the
defendant, hence he also inherited the
tenancy and was necessary or at least
proper party to the suit.

2. In the plaint no date of
construction has been given hence from
bare reading of the plaint, it is not clear
http:\\allahabadhighcourt.nic.in
1 All] Gauri Shanker Gupta V. Anita Misra and another
7
 whether U.P. Act No. 13 of 1972 applied
to the shop in dispute on the date of filing
of the suit or not. In the plaint it has not
been pleaded that heirs of Ram Autar
other
than
defendant
Azad
Kumar
expressly surrender their tenancy.

3. Under the general law after the
death of the tenant all his heirs inherit the
tenancy. Even under U.P. Act No. 13 of
1972, in case of non residential building
all the heirs of the tenant inherit the
tenancy by virtue of definition of tenant
given u/s 3 (a) of the Act. Even though
the Supreme Court in AIR 1995 SC 676
and AIR 2001 SC 2251 has held that
after the death of the tenant all his heirs
inherit the tenancy jointly and decree
passed against one or some of them is
binding on non impleaded joint tenants
also, however, this doctrine can not be
pressed in to service when during the
pendency of the suit a person claiming to
be
the
joint
tenant
applies
for
impleadment. In AIR 2001 SC 2251
(supra) itself an earlier authority of three
Hon'ble Judges reported in AIR 1990 SC
2053 has been referred to in which a
decree for eviction was set-aside on the
application of non-impleaded joint tenant.

4. It is settled law that the sub tenant
is not a necessary party to a suit for
eviction filed against the chief tenant and
decree for eviction passed against chief
tenant is binding upon sub tenant.
However, even in the case of sub tenant, it
has been held by the Supreme Court that
in case, he applies for impleadment
during the pendency of a suit for
ejectment and on the objection of the
landlord his application is rejected then he
cannot be evicted under decree of eviction
against the chief tenant (vide AIR 2002
SC 804).

5. Learned counsel for the landlord
respondent has argued that late Ram
Autar left behind several heirs and it
would be very difficult to implead all of
them. It has further been argued that one
more heir of late Ram Aautar has also
applied for impleadment. According to
the learned counsel the entire exercise is
meant to delay the disposal of the suit. In
my opinion for this situation landlord
himself is responsible. Ordinarily after the
death of the tenant particularly in case of
tenancy of non-residential building, all his
heirs must be impleaded as tenant in
ejectment suit.

6. Accordingly, the revision is
allowed. The impugned order is set aside
and revisionist Gauri Shankar Gupta is
directed to be impleaded as defendant
no.2 in the SCC Suit No. 42 of 2001,
pending before the Additional District
Judge, Court No.2, Kanpur Nagar.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2003

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No.52755 of 2002

Shiva Ji Singh and others ...Petitioners
Versus
High Court of Judicature at Allahabad
Through
its
Registrar
General
and
another

 ...Respondents

Counsel for the Petitioners:
Sri Shashi Nandan
Sri L.R. Khan

Counsel for the Respondents:
Sri Sudhir Agarwal
Sri A.P. Sahi
Sri A.K. Singh