N.N. Goswamy, J.
1. This revision petition by the tenant is directed against the order dated 1-5-1982 passed by the learned Subordinate Judge, First Class, Delhi, whereby the preliminary issue framed in the suit was decided against him.
2. The respondent-landlord filed a suit for possession of the premises in dispute on the allegations that he was the owner of the premises and Shri Ram Gupta was the tenant in the said premises. The tenancy of Shri Ram Gupta was terminated by means of a notice dated 2-6-1978 and w.e.f. 1-7-1978, he became a trespasser. The premises were let for commercial purposes and Shri Ram Gupta having died, his legal heirs were not entitled to the benefit of Section 2(1) of the Delhi Rent Control Act.
3. The suit was contested by the petitioner who raised a preliminary objection in the written statement regarding the maintainability of the suit. According to the allegations in the written statement, the tenancy rights of the deceased Shri Ram Gupta devolved upon all the legal heirs of Shri Ram Gupta. It was further stated that till his death Shri Ram Gupta remained as contractual tenant in respect of the premises in dispute and the suit against the defendant alone in the present form was not maintainable.
4. On the pleadings of the parties, the following preliminary issue was framed :
'Whether the suit is not maintainable in the present form ?'
Before the learned trial Judge, it was contended by the defendant-petitioner that the Civil Court had no jurisdiction inasmuch as the legal representatives of the deceased became tenants after the death of Shri Ram Gupta, and the tenancy devolved on all the said legal representatives. The learned trial Judge relying on the judgment of a Full Bench of this Court in 'Haji Md. Din v. Narain Das', reported as 15 (1979) DLT 220 came to the conclusion that the premises having been let for commercial purposes, the legal heirs of the deceased tenant were not entitled to inherit the tenancy rights in accordance with the definition of 'tenant' as given in Section 2(1) of the Delhi Rent Control Act. Consequently, according to the learned trial Judge the only forum available to the landlord was the civil court. Accordingly, the preliminary issue was decided against the petitioner and in favor of the plaintiff-landlord.
5. The full bench of this Court in the judgment referred to above considered the effect of amendment in the definition of 'tenant' as given in Section 2(1) of the Delhi Rent Control Act. The learned Judges constituting the full bench by their separate judgments came to a unanimous conclusion to the effect that after the death of the persons continuing in possession after the determination of their tenancy, the legal representatives had the limited right of inheritance as given in the definition of 'tenant' in Section 2(1) as retrospectively amended by the amending Act, 1976. They further held that after the death of tenant, the right to continued occupation is available only in respect of residential premises and that too to the limited number of heirs specified in Clause (1) (iii) aforesaid, if they fulfill the other conditions stated therein. The contention of the learned counsel for the petitioner before me is that the aforesaid view of the full bench needs reconsideration in view of the decision of their Lordships of the Supreme Court in 'Dhanapal Chettiar v. Yesodoi Ammal' reported as 1979 SC 1745. It was argued that the basis of the full Bench's decision is 'after the determination of his tenancy'. The Supreme Court in the aforesaid case having held that the giving of notice under the Transfer of Property Act, 1882 is a mere surplusage and does not entitle the landlord to evict the tenant and the tenancy only terminates on the passing of an order and decree for eviction.
6. I have given my careful consideration to the argument advanced by the learned counsel for the petitioner. At best the effect of the aforesaid Supreme Court's decision is that the words 'after the termination of his tenancy' in Clause (iii) of the definition of 'tenant' are surplusage and need not be given effect to. Even if I do not read the said words in Clause (iii), the effect still is that the right of succession is available only in the case of residential premises and is not available for the premises which were not let for residential purposes and where the persons mentioned in Clause (iii) were not residing.
7. The learned counsel for the petitioner also challenged the virus of the definition of 'tenant' on the ground that the same was discriminatory. This argument is also not available to the petitioner as the matter stands decided by another full bench of this Court in the case of 'Mewa Devi v. Ashok Kumar', reported as 1983 RLR 73. The full bench was directly concerned with the virus of the said provision and the three learned Judges of the full bench have unanimously upheld the virus of the provision. No other argument was advanced by the learned counsel for the petitioner.
8. For the reasons recorded above, there is no merit in this petition and the same is accordingly dismissed. In the circumstances of the case, I leave the parties to bear their own costs.