JUDGMENT
V.C. Misra, J.
1. Heard Sri Shrinath Dwivedi, learned Counsel for the petitioners and Sri Irshad Ali and Sri Pankaj Gupta, learned Counsel for the respondent-landlord-caveators.
2. This writ petition has been filed by the petitioners for quashing the impugned orders dated 18.2.2006 (Annexure-4 to the writ petition) and dated 27.11.2006 (Annexure-6 to the writ petition), passed by the Judge, Small Causes Court and the Additional District Judge, Court No. 2, Banda, respectively and directing the respondents not to interfere with the peaceful possession of the petitioners over the premises In dispute.
3. The case of the petitioner-tenants is that the respondent-plaintiffs had served a notice upon the father of the petitioners and one Prabhu Dayal through counsel under Section 106 of the Transfer of Property Act for ejectment from the premises in question, payment of arrears of rent from July 1992 to June, 1996 and damages for use and occupation of the premises after 17.6.1996. The said notice was replied by the father of the petitioners. Thereafter the respondent-plaintiffs filed S.C.C. Suit No. 8 of 1996 before the Judge, Small Causes Court against the father of the petitioners seeking relief inter alia for ejectment and payment of arrears of rent. The father of the petitioners appeared in the said proceeding but since he was seriously ill ultimately died on 19.12.1997, and he could not file his written statement in the proceeding and this fact was not within the knowledge of the petitioners. The respondent-plaintiffs filed an application in the said proceeding under Order XXII, Rule 4 (4) of the Code of Civil Procedure (in short C.P.C.) to get a decree behind the back of the petitioners instead of filing a substitution application in the suit for bringing on the record the heirs and legal representatives of the defendant-Mewa Lal (deceased)-the father of the petitioners. The contention of the petitioners is that the trial court without considering the special provisions of the U. P. Act No. XIII of 1972 allowed the application of the respondent-plaintiffs moved under Order XXII, Rule 4 (4) of the C.P.C. vide order dated 8.7.1997, however the suit was ultimately dismissed on 30.11.2000 (Annexure-2 to the writ petition) by the trial court on the ground of maintainability. The respondent plaintiffs filed a revision before the revisional court below challenging the order dated 30.11.2000, which was allowed vide order dated 16.7.2001 (Annexure-3 to the writ petition) by the revisional court below remanding the case to the trial court directing to proceed with the case against the defendant-even though the father of the petitioners had died by that time. The trial court consequently proceeded ex parte against the defendant-father of the petitioners and decreed the suit ex parte vide impugned order dated 18.2.2006 (Annexure-4 to the writ petition) passed in the S.C.C. Suit No. 8 of 1996. Further case of the petitioners is that after the death of the defendant-father of the petitioners no notice whatsoever had been issued to the petitioners for substituting them in the proceeding as they were the heirs and legal representatives of the defendant (deceased) and the petitioners were totally unaware about the entire proceedings. The petitioners came to know about the aforesaid ex parte order only when the proceeding for ejectment from the premises in question was started. The petitioners filed a revision before the District Judge, Banda, categorically mentioning therein that no opportunity of hearing was ever provided to them by the trial court and without taking notice of the provisions of Sections 3, 34 (4) and 38 of the U. P. Act No. XIII of 1972, the trial court proceeded Illegally with the proceeding in terms of Order XXII, Rule 4 (4) of C.P.C, even then the revisional court below dismissed the Revision No. 18 of 2006 vide the Impugned order dated 27.11.2006 (Annexure-6 to the writ petition). Being aggrieved the petitioners have filed the present writ petition challenging the aforesaid impugned orders inter alia on the grounds that the courts below without complying with the provisions provided in Sections 3, 34 (4) and 38 of the U. P. Act No. XIII of 1972, passed the Impugned orders.
4. I have heard learned Counsel for the parties at length and perused the record of the case as well as the impugned orders under challenge herein. For proper adjudication of the controversies involved In the present writ petition, it is necessary to reproduce the relevant provisions of Order XXII, Rule 4 (4) of the C.P.C. and Sections 3 (a), 34 (4) and 38 of the U. P. Act No. XIII of 1972, which are quoted below:
Order XXII, Rule 4 (4) of the C.P.C.
4. Procedure in case of death of one of several defendants or of sole defendant:
(1) …
(2) …
(3) …
(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took, place.
Section 3 (a) of the U.P. Act No. XIII of 1972
3. (a) “tenant”, in relation to a building, means a person by whom its rent is payable, and on the tenant’s death-
1. in the case of residential building, such only of his heirs as normally resided with him in the building at the time of his death;
2. in the case of a non-residential building, his heirs.
[Explanation. – An occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant).
Section 34 (4) of the U. P. Act No. XIII of 1972
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 heirs or legal representatives;
(b) in the case of an unauthorised occupant, and person claiming under him or found in occupation of the building.
Section 38 of the U. P. Act No. XIII of 1972
38. Act to override T. P. Act and Civil Procedure Code.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of Property Act, 1882 (Act No. IV of 1882), or in the Code of Civil Procedure, 1908.
5. Learned Counsel for the petitioners has emphatically submitted that the petitioners though they are the heirs and legal representatives of the defendant-Mewa Lal who died on 19.12.1997 they were not substituted in the proceeding as defendant in his place and the trial court proceeded ex parte and decreed the suit against the petitioners and they were deprived from being heard. From perusal of Section 34 (4) of the U. P. Act No. XIII of 1972 it is crystal clear that where any party to any proceeding for the determination of standard rent or for eviction from a building dies during the pendency of the proceeding, such proceeding may be continued after bringing on the record his heirs and legal representatives.
6. A bare reading of Section 38 of the U. P. Act XIII of 1972 shows that this provision under the Act shall have a overriding effect over the provisions of the T. P. Act or Code of Civil Procedure which are inconsistent with it. In this view of the matter the court below has grossly erred in law in proceeding with the case in terms of Section 22(4) of the C.P.C. without bringing on the record the heirs and legal representatives of the original tenant-defendant who admittedly died during the pendency of the proceedings and in such circumstances the heirs and legal representatives of the original tenant were deprived from the right of being heard which is also contrary to the basic principle of natural justice. However, during the course of the arguments, learned Counsel appearing for the respondents has very fairly conceded the legal arguments advanced by the learned Counsel for the petitioner.
7. That being the position after looking into the facts and circumstances of the case the impugned orders dated 18.2.2006, (Annexure-4 to the writ petition) passed by the Judge, Small Causes Court in S.C.C. Suit No. 8 of 1996 and the order dated 27.11.2006 (Annexure-6 to the writ petition) passed by the revisional court below-the Additional District Judge, Court No. 2, Banda, in Revision No. 18 of 2006 are hereby quashed. The petitioners are entitled for being substituted in place of their father late Mewa Lal-defendant in the original S.C.C. Suit No. 8 of 1996 as defendants pending before the trial court. Accordingly, it is directed that the trial court shall continue with the proceedings after substitution of the heirs and legal representatives of the defendant-Mewa Lal (since deceased) and decide the case in accordance with law and procedure.
8. With these observations, the writ petition is allowed. No order as to costs.