Judgment:
G.C. Garg, J.
1. One Bishan Singh was the owner of the property in dispute. His estate was inherited by Atma Singh who inducted Chatter Singh as a tenant on the property in question by virtue of a rent note dated August 18, 1956 with an authority to sub-let. This rent note was only for a period of eleven months. Chatter Singh let out the property to Kesho Parshad, respondent herein, on March 12, 1981. Chatter Singh thereafter filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short 'the Act') seeking ejectment of the respondent, sub-tenant on the ground of non payment of arrears of rent. The petition was contested by the respondent. It was alleged by him that he was not the tenant under Chattar Singh but was a direct tenant under Atma Singh. After the issues had been framed in the ejectment petition, Chatter Singh died on January 14, 1991. Avtar Singh, petitioner herein, son of Chatter Singh on the strength of a will dated December 12, 1990 in his favour, moved an application March 9, 1991 for being impleaded as a petitioner in place of Chatter Singh, being his heir. This application was dismissed by the learned Rent Controller by his order dated May 4,1991 and while dismissing the application, learned Rent Controller also dismissed the ejectment petition having abated. This is how the present revision came to be filed by Avtar Singh son of Chatter Singh.
2. Learned Counsel for the petitioner vehemently contended that tenancy being heritable, right to sue survived to the petitioner and the learned Rent Controller acted illegally in dismissing the application and resultantly the ejectment petition. Mr. Mahajan, learned counsel for the respondent, on the other hand, submitted that Chatter Singh was a tenant under rent note dated August 18, 1956 only for a period of eleven months and as the property had been sub-let in the year 1991 without the permission of the landlord, he had no right to seek ejectment of the respondent. The contention of learned counsel for the respondent has no merit. It is not to be seen at this stage, whether the petition for ejectment filed by Chatter Singh is or is not competent or whether he is entitled to seek ejectment or not. The only question here is, whether Avtar Singh son of Chatter Singh is entitled to be brought on record to continue the proceedings after the death of his father, Chatter Singh.
3. Mr. Mahajan also contended that even if it be taken the respondent was inducted by Chattar Singh, Avtar Singh the son of the latter cannot pursue the ejectment petition as the sub-tenancy was without the permission of the landlord. This contention again has no merit for the reasons mentioned above. Tenancy under the Act aforesaid, has already been held to be heritable and even if the respondent is able to prove that sub-tenancy had been created without the permission of the landlord, he will not gain in any way, he having been inducted by Chatter Singh will face the consequences and will be able to defeat the right of Chatter Singh by showing that he was inducted as a tenant by Atma Singh and not Chatter Singh as was pleaded by him. Faced with the situation, learned counsel for the respondent submitted that right to sue did not survive and, therefore, learned Rent Controller rightly dismissed the application. As observed above, I am not impressed with the contention, tenancy being heritable. I fail to understand as to how the right to sue did not survive in favour of Chatter Singh.
4. Learned counsel for the respondent still raised another contention that the order passed by the learned Rent Controller was appealable as by the said order, the ejectment petition had also been dismissed after dismissal of the application seeking implead as an heir. I am not inclined to accept this contention as well, in view of the observations of Mr. J.V. Gupta, J. (as his Lordship then was) in M/s. Shivalik Poultry Farm and Ors. v. Indian Bank, 1985(1)87 P.L.R. 746. It was held therein that revision against the order of the trial court dismissing application of the defendant under Order 37 Rule 3(5) of the Code of Civil Procedure and at the same time decreeing the suit of the plaintiff by the said order, was maintainable though the order decreeing the suit was admittedly appealable.
5. For what has been observed above, the revision succeeds and is allowed accordingly. Order under revision is set aside. Application of Avtar Singh, petitioner for being brought on record as legal representative of Chatter Singh is allowed and he is ordered to be impleaded as a petitioner in the ejectment petition. Learned Rent Controller shall now proceed with the ejectment petition and dispose it of in accordance with law. There will be no order as to costs.