ORDER
A. Ramamurthi, J.
1. The second appellant in R.C.A.No.43 of 1994 on the file of Rent Control Appellate Authority / Subordinate Judge’s Court, Tuticorin, has filed these two revision petitions aggrieved against the orders passed in I.A.No.47 of 1999 dated 12.09.2001.
2. The case in brief for disposal of both the revision petitions is as follows:- The respondents herein as landlords filed R.C.O.P.No.22 of 1993 against one Mohammed Ibrahim and the present petitioner Zahir Hussain for eviction on the ground of demolition and reconstruction under section 14(1)(b) of Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as ‘The Act’). The rent control petition was allowed granting one month time to the tenants to vacate the property. Aggrieved against this, the tenants preferred R.C.A.No.43 of 1994 on the file of Sub Court, Tuticorin and during the pendency of the appeal, it appears that the 1st appellant named Mohammed Ibrahim died on 08.02.1997 and therefore, the 2nd appellant filed a memo that his father passed away on 08.02.1997 and he was running the business even during the time of his father and as such, he may be recorded as the legal heir of the 1st appellant.
However, the landlords filed I.A.No.47 of 1999 under Order 22 Rule 9 of Civil Procedure Code alleging that the 2nd appellant had no statutory tenancy right and he has no right to continue the appeal after the death of the 1st appellant. When the 1st appellant was sick and bedridden only, the 2nd appellant was running the business. Now, the landlords learnt that due to arrangement in the family and the division of business between the legal heirs of the deceased 1st appellant, the 2nd appellant was allotted another shop by name “Mumbai Stove Marketing” in door No.25A, West Car Street, Tuticorin. He had also obtained separate R.C.number in his name and he has gone out of the premises in question, which is now being run by other sons of the deceased. But they were not assisting their father during his lifetime and hence, they are not entitled to statutory tenancy right. The landlords therefore sought dismissal of the appeal as abated on the death of the 1st appellant. This application was resisted by the 2nd appellant alleging that he was carrying on business along with the father, the 1st appellant even during his lifetime and also denied the alleged family arrangement. Similarly, the landlords also filed objections relating to the memo filed by the 2nd appellant.
P.W.1 and R.W.1 were examined and Exs.A-1 to A-5 and Exs.B-1 to B-5 were marked. After hearing the parties, the learned Subordinate Judge allowed I.A.No.47 of 1999 and consequently R.C.A.43 of 1994 was also dismissed as abated and aggrieved against this, the 2nd appellant has come forward with the present revision petitions.
3. Heard the learned counsel for the parties.
4. The points that arise for consideration are
(1)Whether the order passed by the court below is proper and correct ?
(2)Whether the 2nd appellant is entitled to continue R.C.A.No.43 of 1994 even after the death of the 1st appellant ?
(3)To what relief ?
5. Points: It is not in dispute that the respondents / landlords filed the application under section 14(1)(b) of the Act against the revision petitioner as well as his father. The learned Rent Controller allowed the application filed by the landlords and aggrieved by this, R.C.A.No.43 of 1994 was filed by the two appellants, namely, the father and son. During the pendency of the appeal, it is admitted that the father, namely, the 1st appellant died on 08.02.1997 and therefore, the 2nd appellant filed a memo to the effect that he was carrying on the business even during the lifetime of his father and, as such, he should be allowed to prosecute the appeal. On the other hand, the landlords filed I.A.No.47 of 1999 on the ground that under the family arrangement the 2nd appellant was given some other shop and he had also obtained separate R.C.number. The shop in question was given to the other sons of the deceased 1st appellant and since they were not assisting the father during his lifetime, they cannot be construed as tenants under section 2(8) of the Act and under the circumstance, R.C.A.No.43 of 1994 has to be dismissed as abated.
6. Now, the second appellant alone has filed these two revision petitions questioning the impugned order passed by the Rent Control Appellate Authority. Learned counsel for the revision petitioner contended that the appellate authority failed to advert to the admitted fact that the 2nd appellant was already made a party by these respondents even in the original application as a tenant. It also erred in law in not adverting to the indisputatble fact that the revision petitioner is associated with the deceased appellant. The rent control appellate authority also overlooked and proceeded on the assumption regarding the allegation of family arrangement in the family of the deceased 1st appellant.
7. It is necessary to state that the 2nd appellant was already a party in the rent control petition filed by the landlords. There is a clear averment in the petition itself that the 2nd appellant alone was looking after the business. Now, the learned counsel for the respondents would contend that at the time of the filing of the rent control petition, no doubt, the 2nd appellant was looking after the business along with his father as he was sick and bedridden. There is no averment in the main rent control petition that the 2nd appellant was assisting the father only because of his illness. The respondents / landlords having made the 2nd appellant as one of the parties in the rent control petition, now cannot contend that the 2nd appellant ceased to be a tenant in the eye of law on the ground of some alleged family arrangement in the family after the death of the 1st appellant. In fact, no record has been filed on the side of the respondents to prove the alleged family arrangement. The respondents, no doubt, filed some letters said to have been written by other sons of the 1st appellant and they have been made use of to dismiss the appeal as abated. In my view, the order passed by the court below dismissing the appeal as abated and allowing I.A.No.47 of 1999 are not proper and correct.
8. Learned counsel for the revision petitioner relied on the decision reported in T.S.ARULROYER ..vs.. LAJJA BAI (1996-2-L.W.645), wherein it is observed that “grandsons, held, would be L.Rs notwithstanding that the deceased tenant’s son living abroad did not claim to be tenant, because he was not in continuous association with the tenant. Meaning of “legal representative” in Section 2(8) not to be equated to legal heirs. Section 27 is merely procedural and helps the landlord to continue the proceedings”. The principle in this decision can be applied to the case on hand.
9. It has been brought to the notice that according to section 2(8), “tenant” means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son, or daughter, or the legal representative of a deceased tenant who in the case of a residential building, had been living with the tenant in the building as a member of the tenant’s family upto the death of the tenant and in the case of a non-residential building, had been in continuous association with the tenant for the purpose of carrying on business of the tenant upto the death of the tenant and continues to carry on such business thereafter”. Based upon the aforesaid provision only, the learned counsel for the respondents contended that the 2nd appellant is no longer as tenant and as such, the appeal has to be dismissed as abated. I am unable to agree with the contention of the learned counsel for the respondents for the simple reason that the landlords originally filed the rent control petition impleading the second appellant also as one of the tenants in the property and now, they cannot file any separate application to dismiss the appeal and that too, without filing any records substantiating the family arrangement. However, it is a matter to be considered only along with the rent control appeal and it is open to the respondents to canvass this point also.
10. Learned counsel for the revision petitioner also filed on BHARATAM SURYANARAYANA ..vs.. MANDAVILLI VENKATA KAMAYYA CHETTI AND OTHERS (1979 (I) THE ANDHRA WEEKLY REPORTER 250) that “even if karta of family dies tenancy rights are not put an end to – All members of family must be treated and can claim same rights as that of the Karta”.
11. Learned counsel for the respondents relied on the decision reported in PATTABIRAMAN ..vs.. CHANDRASEKARAN (1997 (I) MLJ 429) that when a statutory definition has been given, the rights of parties will have to be decided only in accordance with that definition and the person coming to Court has to satisfy that he comes within the ambit of that definition. There is no dispute about this principle but the applicability of the same depends upon the facts and circumstances in each case.
12. Learned counsel for the respondents have filed some documents before the appellate authority to establish that the 2nd appellant is having separate R.C.number and he is doing separate business. Even assuming that the 2nd appellant is doing separate business, it is the duty of the landlords to establish that the 2nd appellant ceased to be a tenant in the eye of law and this can be decided only in the appeal and not in the separate petition. It is unfortunate that the appellate authority instead of taking the appeal itself, has taken the application and allowed the parties to let in evidence and given a finding. The approach of the appellate authority is not proper and correct in the facts and circumstances of this case. If really the 2nd appellant was not a party to the rent control petition by the landlords, then the approach of the court below may be a proper and correct one. When once the landlords have accepted the 2nd appellant as a tenant in the property, now the status of the tenant cannot be taken away on mere surmise and conjecture. Under the circumstance, I am of the view that the entire question has to be left open to be decided in the rent control appeal and it is also open to the parties to canvass all the legal points available under law. The order passed by the appellate authority is liable to be set aside and hence, the points are answered accordingly.
13. For the reasons stated above, both the revision petitions are allowed and the orders passed by the authority below dated 12.09.2001 in I.A.No.47 of 1999 and R.C.A.No.43 of 1994 are set aside and consequently, the memo filed by the 2nd appellant is recorded and I.A.No.47 of 1999 is dismissed. The appellate authority is directed to restore R.C.A.No.43 of 1994 to its file and dispose the same in accordance with law after hearing the parties. It is open to the respondents to raise any plea available under law. No costs. Consequently, CMPs.No.539 and 540 of 2002 are closed.