Writ Petition No. 2115 of 2011 (MS). Case: Smt. Angoori Devi and Ors. Vs Surendra Kumar Kukreti and Ors.. Uttarakhand High Court
| Case Number | Writ Petition No. 2115 of 2011 (MS) |
| Counsel | For Appellant: Mr. Sudhir Kumar and MR. Anant Kumar Agarwal, Advocates and For Respondents: MR. B.P. Nautiyal, Senior Advocate with MR. J.V. Kandpal, Advocate |
| Judges | V. K. Bist, J. |
| Issue | Code of Civil Procedure, 1908 - Rules 10(2), 30; Uttar Pradesh Urban Buildings (Regulation of Letting, Rent &. Eviction) Act, 1972 - Sections 19, 21, 21(1)(a), 3(a) |
| Judgement Date | November 20, 2012 |
| Court | Uttarakhand High Court |
Judgment:
V. K. Bist, J.
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By way of instant petition, the petitioners are challenging the order dated 16.07.2011 passed by Prescribed Authority/Civil Judge (Sr. Div.), Kotdwar, Pauri Garhwal in P.A. Case No. 17 of 2008 'Surendra Kumar and ors. vs. M/s. Hari Krishna Chandra Prakash and ors.', pending before him, whereby the Court below rejected the application, moved by the third party (petitioners herein) under Order I Rule 10(2) of the Code of Civil Procedure, thereby seeking their impleadment in the P.A. Case no. 17 of 2008. The facts, which emerge out from the record, are that respondent nos. 1 to 6 filed an application before the Prescribed Authority, Kotdwar for release of a shop situate at Badrinath Road, Near Jhanda Chowk, Kotdwar, District Pauri Garhwal under clause (a) of sub-section (1) of Section 21 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act (U.P. Act No. XIII of 1972) which was numbered as P.A. Case No. 17 of 2008. It is asserted in the petition that originally the case was filed against respondent nos. 8, 10 and 11 only, but the respondent nos. 7 & 9 were impleaded subsequently. It is pleaded that shop in question was let out to the firm M/s. Hari Krishna Chandra Prakash, which was a partnership firm of two partners i.e. Hari Krishna and Balesh Chandra @ Bal Bahadur Agarwal. It is asserted that the petitioners are the legal representatives of Hari Krishna and when they came to know about the pendency of said release application, they moved an application for their impleadment before the Court below. The respondent nos. 1 to 6 filed objection to the impleadment application. Upon hearing learned counsel for the parties, the Prescribed Authority, vide impugned order dated 16.07.2011 rejected the impleadment application. Hence this petition.
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The respondent nos. 1 to 6 filed a counter affidavit with the assertion that after the death of partner i.e. Hari Krishna, the partnership was dissolved and after the death of other co-partner Balesh Chandra @ Bal Bahadur Aggarwal the partnership came to an end, and in fact, the disputed shop had never been in the tenancy of the partnership firm of the petitioners and the legal heirs of Balesh Chandra. It is asserted that the petitioners had never been the tenants of the shop in question in any capacity, neither as a partner nor in their individual capacity.
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Learned counsel for the petitioners contended that the Court below has passed the impugned order in a cursory manner. He contended that admittedly, the partnership firm (respondent no. 7 herein) is a tenant and because a partnership firm is not a legal person, its partners shall be deemed to be tenants of the premises and shall be co-tenants. Learned counsel for the petitioners submitted that originally the release application was filed against respondent nos. 8, 10 and 11 only and the firm-respondent no. 7 was impleaded later on and it had been specifically alleged that the firm had two partners, who have died. He contended that it is settled principal of law that all legal heirs of the original tenant become tenants on account of death of original tenant, therefore the petitioners became tenants of the shop in question, after the death of Hari Krishna, because the respondent nos. 1 to 6 did not allege that the petitioners have surrendered their tenancy rights at any point of time and even if this plea is taken, it can only be adjudicated upon after adducing evidence by the parties and cannot be decided in a cursory manner. Lastly, it is...
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