# Hamidullah & Ors v. Laxmi Prasad & Ors

- **Citation:** (2021) 8 ILRA 347
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-28
- **Case number:** Misc. Single No. 14479 of 2021
- **Bench:** Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hamidullah-ors-v-laxmi-prasad-ors-47195
- **Pages:** 3

## Headnote

-----

Joint Tenancy-ammendment application
by Plaintiff-one of the deceased died -
defendant jointly filed objection without
impleading
deceased's
legal
heirammendment
of
plaintiff
rejected-
objection filed is illegal--proceeding u/s
21(1)
(a)
could
not
continue-order
rejecting ammendment is inconsequential
and
non-maintainable-subsequent
substitution was entertained-such order is
bad in the eye of law. Impugned order and
consequential proceedings quashed.

W.P. disposed. (E-7)

Held, It may be relevant to note that the
consequence of abatement does not follow as a
result of death of the landlord or a tenant in the
proceedings instituted under the Rent Control
Act. Therefore, the overriding effect of the Act
by virtue of Section 38 to the extent of
inconsistency with CPC makes the application of
Section 34(4) of the Act as indispensable,
therefore,
bringing
on
record
the
legal
representatives or the legal heirs of the
deceased party for continuity of the proceeding
becomes a pre-requisite.(para 9)

List of Cases cited:

## Text

8 All. Hamidullah & Ors. Vs. Laxmi Prasad & Ors.
347
(2021)08ILR A347
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.07.2021

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Single No. 14479 of 2021

Hamidullah & Ors. ...Petitioners
Versus
Laxmi Prasad & Ors. ...Respondents

Counsel for the Petitioners:
Mohd. Mustafizul Haq, Deepti Gupta

Counsel for the Respondents:
-----

Joint Tenancy-ammendment application
by Plaintiff-one of the deceased died -
defendant jointly filed objection without
impleading
deceased's
legal
heirammendment
of
plaintiff
rejected-
objection filed is illegal--proceeding u/s
21(1)
(a)
could
not
continue-order
rejecting ammendment is inconsequential
and
non-maintainable-subsequent
substitution was entertained-such order is
bad in the eye of law. Impugned order and
consequential proceedings quashed.

W.P. disposed. (E-7)

Held, It may be relevant to note that the
consequence of abatement does not follow as a
result of death of the landlord or a tenant in the
proceedings instituted under the Rent Control
Act. Therefore, the overriding effect of the Act
by virtue of Section 38 to the extent of
inconsistency with CPC makes the application of
Section 34(4) of the Act as indispensable,
therefore,
bringing
on
record
the
legal
representatives or the legal heirs of the
deceased party for continuity of the proceeding
becomes a pre-requisite.(para 9)

List of Cases cited:

1. Ajeet Gupta Vs Smt. Mukteshwari Nigam &
ors., 1984 LCD pg. 68

(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

1. Heard Sri Q.M. Haque learned
counsel for the petitioners and Ms. Deepti
Gupta learned counsel for the opposite
parties.

2. This is a petition filed under Article
227 of the Constitution of India assailing
the order passed by the revisional court
below
on
19.3.2021
whereby
the
application i.e. 30Ka/2 for substitution of
the legal heirs of one of the respondents in
the revision who was defendant no. 6 in the
miscellaneous case filed under Section
21(1)(a) of the U.P. Act No. 13 of
1972(hereinafter referred to as the Act) has
been allowed under Order 22 Rule 4 C.P.C.

3. Facts in brief are that a Misc. Case
No.1/2016 for eviction of tenants under
Section 21(1)(a) of the Act was filed before
the court below impleading six defendants.
The defendant no. 1 was the original tenant
whereas the defendant nos. 2 to 6 were the
legal heirs of the deceased original joint
tenant Samiullah who was the real brother
of the defendant no. 1. The tenancy
originally was admittedly joint. Thus, all
the co-defendants were joint tenants of the
shop in dispute. A written statement jointly
filed on 5.2.2016 by all the defendants is
also on record. Thereafter, an application
for amendment i.e. Ka-3 was filed by the
plaintiffs. In response to this application,
all the defendants are stated to have filed
their objections jointly on 7.3.2018 as is
evident from paragraph 7 of the present
petition. The amendment application came
to be rejected by order dated 16.10.2018
which is contained as anneuxre 6 but at the
348 INDIAN LAW REPORTS ALLAHABAD SERIES
relevant point of time one of the defendants
namely defendant no. 6(Smt. Ammunnisa)
had died.

4. The petitioners have mentioned
the date of death of the defendant no. 6 as
1.1.2018 in paragraph 10 of the petition
and the same date is mentioned in
paragraph 4 of the objections filed
against
the
substitution
application
preferred
by
the
landlords
at
the
revisional stage under Order 22 Rule 4
C.P.C. The substitution application filed
by the landlord in the revision arisen out
of order dated 16.10.2018 also mentions
the date of death of defendant no. 6 as
1.1.2018.

5. In the light of the facts on record,
if the date of death of the defendant no.
6(Ammunnisa) mentioned as 1.1.2018 is
taken to be correct, the objections filed
against the amendment application jointly
on behalf of the defendants on 7.3.2018
emerges to be false. Thus, the legal heirs
of the defendant no. 6 in the objections
filed
against
the
application
for
amendment cannot be presumed to have
been represented by any of the defendant
nos. 1 to 5 unless authorized.

6. The amendment application was
also rejected after the death of the
defendant no. 6 meaning thereby that the
proceedings under Section 21(1)(a) were
continued contrary to the mandate of
Section 34(4) of the Act, which is
extracted below :-

"34(4) Where any party to any
proceeding
for
the
determination
of
standard rent of or for eviction from a
building dies during the pendency of the
proceeding, such proceeding May be
continued after bringing on the record:

(a) in the case of the landlord or
tenant, his heir or; legal representatives;

(b) in the case of an unauthorised
occupant, any person claiming under him
or found in occupation of the building"

7. Bare reading of the aforesaid
provision
makes
it
clear
that
the
proceedings under the Act can be continued
only after bringing on record the legal heirs
or legal representatives of the deceased
landlord or tenant. Even if it is assumed
that the defendants were joint tenants but
upon the death of any of them, the heirs
would
inherit
the
tenancy
in
their
individual
capacity,
thefore,
the
proceedings were liable to be continued
either by bringing the legal representatives
of the deceased tenant on record or by
substituting the legal heirs in the plaint.
Thus, the continuity of proceedings upon
the death of defendant no. 6 after 1.1.2018
from a close scrutiny of the record, is
clearly vitiated for having proceeded
against
a
dead
person
whose
legal
representatives/legal heirs were not brought
on record. In the result, the proceedings
under Section 21(1)(a) of the Act could not
be continued. The position of law is
supported under a judgment reported in
1984 LCD pg. 68(Ajeet Gupta versus
Smt. Mukteshwari Nigam and others).

8. Once the proceedings under
Section 21(1)(a) of the Act could not
continue, the order passed by the court
below rejecting the amendment application
on 16.10.2018 was inconsequential and any
proceeding arising therefrom i.e. the
revision in the present case was equally
non-maintainable
and
that
too
by
impleading a dead person as opposite party.
The substitution application which even
otherwise was not maintainable under
Order 22 Rule 4 C.P.C. in the revision was
8 All. Popai Vs. State of U.P. & Ors.
349
erroneously entertained by the revisional
court. Hence, the order passed on the
substitution application impugned herein
this petition is equally bad in the eye of
law.

9. It may be relevant to note that the
consequence of abatement does not follow
as a result of death of the landlord or a
tenant in the proceedings instituted under
the Rent Control Act. Therefore, the
overriding effect of the Act by virtue of
Section 38 to the extent of inconsistency
with CPC makes the application of Section
34(4) of the Act as indispensable, therefore,
bringing on record the legal representatives
or the legal heirs of the deceased party for
continuity of the proceeding becomes a
pre-requisite.

10. The thirty days period of
limitation stipulated under Rule 25 of the
Rules applicable in this behalf is statutorily
prescribed and for this purpose the
provisions of Limitation Act are open to be
taken aid of in the event of delay.

11. Having regard to the facts and
circumstances of the present case, this
Court is of the considered opinion that not
only that the order rejecting the amendment
application filed by the plaintiffs in Misc.
Case No. 1 of 2016 by order dated
16.10.2018 is non-est but the consequential
proceedings of Revision No. 83 of 2018 are
also bad in the eye of law being nonmaintainable. The proceedings after the
death of defendant no. 6 ought not to have
proceeded without bringing on record her
legal representative/legal heirs.

12. It is thus open to the plaintiffs to
make
an
appropriate
application
for
bringing on record the legal heirs/legal
representatives of the defendant no. 6 in the
pending proceeding under Section 21(1)(a)
of the Act i.e. in Misc. Case No. 1 of 2016
and if any such application is filed within
one month from the date of uploading this
order, the competent court shall consider
the said application and pass necessary
order after affording opportunity to both
the parties. The amendment application
shall also be treated to be pending for the
aforesaid reasons and opportunity to file
objections may be granted afresh so that all
the parties may have an opportunity of
filing their objections and setting out their
defence. The amendment application as
well as the proceedings pending under
Section 21(1)(a) of the Act may be brought
to its logical conclusion expeditiously. The
order dated 16.10.2018 along-with the
consequential
proceedings
before
the
revisional
court
are
hereby
set
aside/quashed.

13. The petition is accordingly
disposed of.
----------

(2021)08ILR A349
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.07.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE RAVI NATH TILHARI, J.

Misc. Bench No. 15087 of 2021

Popai ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Kaushal Kishore, Mohammad Salman

Counsel for the Respondents:
C.S.C., Mohan Singh