D.K. Kapur JUDGMENT
D.K. Kapur, C.J.
(1) This is a Regular Second Appeal arising from a suit for possession. Dr. Walaiti Ram was a tenant in shop No. 53, Panchkuian Road, New Delhi. He also had a residential flat just above the shop. The two premises were independently let out at Rs. 23/13.00 Annas and Rs. 28/2.00 Annas per month but the tenancy was consolidated and the standard rent of the property was fixed at Rs. 50.25 np per month by the Court. In other words. Dr. Walaiti Ram was a tenant, in commercial-cum-residential property half of which being commercial and half of it being residential.
(2) It appears from the facts found by the Court that the tenancy of Dr. Walaiti Ram was terminated by a notice to quit dated 22-7-1956. The case of the plaintiff was that Dr. Walaiti Ram became a statutory tenant. Later on Dr. Walaiti Ram died on 11th November, 1959. So, the stand of the plaintiffs was that the statutory tenant having died and there being no inheritable interest left in the property, the property had to be vacated as there was no tenant in the same within the meaning of Section 2(1) of the Delhi Rent Control Act, 1956.
(3) Undoubtedly, the legal position accepted by the Courts at one time was as on the death of the statutory tenant, the property would pass back to the landlord as there was one inheritable interest of the statutory tenant. There was later an amendment regarding the position of residential premises. That is contained in Section 2(1)(3) with its various Explanations .It was sought to protect certain heirs of the tenants in residential premises from being evicted on this ground, i.e. if a statutory tenant died, certain persons who were dependent on him would nevertheless either get a life tenancy or be protected from eviction. At the time this case was decided, 1976 Amendment had not come. So, the trial court decided this case on the footing that the tenancy would come to an end but it held that the tenancy had not come to an end but it held that the tenancy had not come to an end because the tenancy was not validly terminated. In appeal the learned Additional District Judge held that the termination to the tenancy was valid and the suit was decreed. The appellate decree was passed in 1972 before the amendment of Section 2(1) introduced by the Delhi Rent Control (Amendment Act No. 18) of 1976 which gave certain protection to persons who were heirs of a statutory tenant in residential premises.
(4) Since then judgment of the Supreme Court in Gian Devi v. Jeewan Kumar, MANU/SC/0381/1985 : AIR1985SC796 , has come and it has been held that heirs of a statutory tenant are protected. In other words, statutory tenancy is also inheritable like any other tenancy and heirs are protected from eviction. This is particularly true of commercial premises. The Court pointed out the anomaly resulting from 1976 Amendment in the Delhi Rent Control Act whereby in the case of residential property a lesser protection was given, i.e., if a person who was tenant in a commercial premises died, the heirs would enjoy the same rights but if the tenant in residential premises died then only some of the heirs would get some protection and that too only limited.
(5) Learned counsel for the appellant contended that the present case is fully covered by the Supreme Court's judgment as the properly is residential-cum-commercial, and as the property cannot be divided, the suit has to fail because the heirs become tenants. On the other hand the learned counsel for the respondent states that the property has to be treated as residential property in view of the judgment of a single Judge of this Court in Bhoo........