Kishore Singh Lodha, J.
1. This is a tenant's second appeal in a suit for ejectment based on the ground of personal necessity. The sole tenant appellant Gordhan Lal has died and an application has been made on behalf of Shankerlal, his nephew; Rajendra Kumar s/o Shankerlal and Ambalal s/o Jagannath Tailor to be impleaded in his place. It is alleged that Shankerlal being the real nephew of the deceased, is his heir, Rajendra Kumar s/o Shankerlal was working with the deceased appellant in the suit premises which is a shop and Ambalal s/o Jagannath Tailor was also working with him as his associate in the disputed shop and, therefore, they are entitled to continue the appeal as the right to sue survives to them.
2. The application has been opposed on behalf of the respondents.
3. I have heard the learned counsel for the parties in respect of this application.
4. On the death of Gordhanlal the right to continue the appeal would survive only in favour of a person who can be deemed to be a tenant after the death of Gordhan Lal. Under Section 3(vii) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (here in after referred to as the 'Act') tenant has been defined and clause (b) reads as under:
Clause (b) III. In the event of death of the person as is referred to in sub-clause (a): (i.e. as tenant both contractual as well as statutory).
(i) his surviving spouse, son, daughter; and
(ii) (ii) other Heirs in accordance with the personal law applicable to him.who (1) in the case of premises leased with himhad out for- in suchbeen (A) residential purposes: premisesordinarily residing member ofAND his family(2) In the case of premises leased up to hisout for- death.(B) Commercial or Businesspurposes-ordinarily carrying on business
5. There is no dispute before me that premises in question in this appeal were let out for commercial purposes and, therefore, in order to become a tenant as defined under clause (vii) of Section 3 of the Act, a person must be an heir of the deceased and must have been ordinarily carrying business with him in such premises as member of his family up to his death. The question is whether the applicants or any of them fulfill these conditions. Shankerlal being the nephew of the deceased is certainly an heir of the deceased but it is not alleged that he had ordinarily been carrying business with the deceased in the suit premises as a member of his family upto his death. Therefore, he cannot fall within this definition of tenant.
6. Rajendra Kumar is son of Shankerlal and in the presence of Shankarlal he cannot be an heir of the deceased. Therefore, he also cannot fall within this definition because even though he may have been Working with the deceased in the suit premises as alleged, he cannot become a tenant as he is not an heir of the deceased.
7. So far as Ambalal is concerned, he also is not an heir as he is not at all related to the deceased. Therefore, his mere working with the deceased as his associate would not make him a tenant of the suit premises.
8. Therefore, none of these three petitioners can be substitued in place of the deceased.
9. The learned counsel for the applicants has placed reliance upon Smt. Gian Devi Anand v. Jeevan Kumar and others : AIR1985SC796 in order to support his contention that heir is entitled to protection of the Rent Control Act even in respect of commercial premises but that authority in my opinion cannot be of any avail in the circumstances of the present case in as much as in the Delhi Control Act the heirship has not been restricted in respect of commercial premises as has been done under Section 3(vii) of the Act.
10. Faced with this situation, the learned counsel for the applicant urged that the restriction placed on the heir-ship under Section 3(vii) of the Act in respect of the commercial premises is unreasonable. As at present, advised I am not inclined to hold that the restriction is unreasonable.
11. In these circumstances, the application under Order XXII, Rule 3 and 11 CPC is dismissed. As a result, the appeal also abated as the sole appellant has died and no legal representative can be brought on record.
12. The appeal is accordingly dismissed, as having abated.