Smt. Vishnu Kumari vs Sandeep Kumar And 6 Others
2023 Latest Caselaw 15768 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:110936
 
A.F.R.
 
                                               Reserved On 12.05.2023
 
Delivered On 19.05.2023
 
Court No. - 2
 

 
Case :- WRIT - A No. - 8227 of 2023
 
Petitioner :- Smt. Vishnu Kumari
 
Respondent :- Sandeep Kumar And 6 Others
 
Counsel for Petitioner :- Praveen Kumar,Onkar Nath Vishwakarma,Sr. Advocate
 
Counsel for Respondent :- Puneet Bhadauria
 

 
Hon'ble Neeraj Tiwari,J.

1. Heard Sri Praveen Kumar, learned counsel for the petitioner and Sri Puneet Bhadauria, learned counsel for the respondent No. 5.

2. Present petition has been filed seeking following relief:

"i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 13.03.2023, passed by Addl. District Judge, Court No. 8, Etawah, in SCC Revision No. 11 of 2004, Murari Lal Srivastava Vs. Sandeep Kumar & Ors.

ii) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 26.04.2023, passed by Addl. District Judge, Court no. 8, Etawah, in Rent Revision No. 19 of 2023, Vishnu Kumari Vs. Sandeep Kumar & Ors."

3. Since only legal question is involved, therefore, with the consent of parties without inviting for affidavits, the matter is being decided at the admission stage itself.

4. Undisputed facts of the case are that Smt. Ramdevi and Smt. Saral Kumari had filed SSC Suit No. 64 of 1975 before SCC Court for eviction and recovery of arrears of rent and damages, upon which Sri Murari Lal Srivastava defendant had filed written statement. During the pendency of the suit proceeding, Smt. Saral Kumari executed a sale deed dated 29.07.1989 in favour of Sri Govind Saran Dixit(since deceased). Thereafter, Sri Govind Saran Dixit(since deceased) moved an application dated 06.01.1990 under Order XXII Rule 10, Code of Civil Procedure (hereinafter, referred to as, 'CPC') for impleadment as plaintiff. Said impleadment application was allowed vide order dated 22.04.2004. Against the said order, defendant filed SCC Revision No. 11 of 2004. The said revision was dismissed vide first impugned order dated 13.03.2023. During the pendency of the legal proceeding, Sri Govind Saran Dixit died on 21.02.2018. The SCC Court vide order dated 01.04.2023 directed the legal heirs of Sri Govind Saran Dixit(since deceased) to file application under Order I Rule 10, CPC along with Order VI Rule 17, CPC and Section 151 CPC for impleadment. Against the order dated 01.04.2023, Revision No. 19 of 2023 was filed, which was also dismissed vide second impugned order dated 26.04.2023. Hence present petition.

5. Learned counsel for the petitioner submitted that impleadment under Order XXII Rule 10, CPC is barred by the provision of Section 109 of Transfer of Property Act, 1882(hereinafter referred to as, 'The Act of 1882') as there is no assignment in the content of sale deed dated 29.07.1989, therefore, the application of impleadment is not maintainable. He next submitted that Section 109 of the Act of 1882 provides that no arrears of rent can be recovered by the subsequent purchaser in case the rent case is pending unless there is specific provision for recovery of rent in the sale deed. In the present case, there is only mention of pendency of SCC Suit No. 64 of 1975, but there is no specific averment about the authorization of recovery of rent for Sri Govind Saran Dixit(since deceased) in whom favour sale deed was executed. Therefore, orders dated 13.03.2023 and 26.04.2023 are bad and liable to be set aside.

6. In support of his contention, learned counsel for the petitioner has placed reliance upon the judgment of Apex Court in the matter of Sheikh Noor Vs. Sheikh G. S. Ibrahim(Dead) by Lrs.: 2003 0 Supreme(SC) 712. He lastly submitted that as there is no assignment and further there is no averment about the recovery of rent in the sale deed dated 29.07.1989, therefore, SCC Suit No. 64 of 1975 for eviction is not maintainable on behalf of legal heirs of Sri Govind Saran Dixit(since deceased).

7. Per contra Sri Puneet Bhadauria, learned counsel for the respondent-plaintiff No. 5 vehemently opposed the submission made by learned counsel for the petitioner and submitted that sale deed dated 29.07.1989 is having specific averment about the pendency of SCC Suit No. 64 of 1975 before Judge, Small Causes Court and also there is assignment that it is upon the purchaser to file application in the said case for impleadment and contest the case on his own expenses. The SCC Suit referred in the sale deed dated 29.07.1989 is for eviction and recovery of arrears of rent and damages, which includes right of recovery of rent also, in fact it is a clear cut assignment in the sale deed, therefore, there is no illegality in the impugned orders and the petition is liable to be dismissed.

8. In support of his contention, Sri Puneet Bhadauria, learned counsel for the respondent-plaintiff No. 5 has placed reliance upon the judgment of Apex Court in the matter of Amit Kumar Shaw Vs. Farida Khatoon: 2005 AIR(SC) 2209. He also placed reliance upon the judgment of this Court in the matter of Bhim Sen Wadhwa Vs. Sri Om Prakash Batra and others: 2010 (2) ARC 360.

9. I have considered rival submissions made by learned counsels for the parties and perused the record as well as judgments so relied upon.

10. The issue before the Court to decide is, as to whether in light of Section 109 of the Act of 1882, Sri Govind Saran Dixit(since deceased) was entitled to receive the rent or not and further, application for impleadment filed under Order XXII Rule 10, CPC is maintainable or not.

11. To decide the controversy, provision of Section 109 of the Act of 1882 is relevant, therefore, the same is being quoted hereinbelow:

Section 109 of Transfer of Property Act, 1882

"109. Rights of lessor's transferee.-- If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:

Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.

The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased."

12. Learned counsel for the petitioner has placed reliance upon the judgment of Apex Court in the matter of Sheikh Noor(Supra), relevant paragrpahs of which are quoted hereinbelow:

"(15). In Girdharilal (dead) by LRs. v. Hukam Singh and Ors., AIR (1977) SC 129, the point as to whether the transfer is entitled to the rent due before the transfer of the property in his favour was considered. Interpretation put by the Rajasthan High Court of provisio to Section 109 of the Transfer of property Act, to the effect that usually the transferee is not entitled to the arrears unless there is a contract to the contrary was approved. It there was an assignment of arrears then certainly the transferee landlord could maintain the petition for eviction on the ground of arrears of rent including the arrears due prior to the transfer in favour. It was held: "An objection based upon the proviso to Section 109 of the Transfer of Property Act was, we think rightly, disposed of by the High Court as follows; "The next objection is that under the proviso to Section 109 of the Transfer of Property Act the transferee is not entitled to arrears of rent due before the transfer. In our opinion he ordinarily not so entitled unless there is a contract to the contrary. There was an express contract to the contrary contained in the compromise petition which was incorporated in the compromise decree passed by the Court."

(18.) In view of the cases referred to above, in our opinion, the correct position of law is that a transferee is not entitled to recover the arrears as rent for the property on transfer unless the right to recover the arrears is also transferred. If right to recover the arrears is assigned, then the transferee/ landlord can recover those arrears as rent and if not paid maintain a petition for eviction under the rent laws for those arrears as well. Since in this case we have found that there was an assignment of right to recover the arrears in favour of the respondent transferee he was entitled to recover the same as arrears of rent. If that period is taken into consideration then the tenant/ appellants were certainly in arrears of rent for more than six months and became liable to be evicted from the premises in dispute on the ground of default on their part in payment of rent for more than six months on the date of filing the suit.

13. From the perusal of the said judgment, it is very well settled that under the provision of Section 109 of the Act of 1882, transferee is entitled to recover the arrears of rent on transfer of the property, in case right to recovery of rent is also transferred and further, he could also maintain the suit for eviction on grounds of arrears pending earlier.

14. I have perused the sale deed dated 29.07.1989, relevant paragraph of which is being quoted hereinbelow:

" वाजै हो कि जो किरायेदारान मकान मुवैया में आवाद है उनकी किरायेदारी रखना अथवा उनको दखल करना खरीदार की मर्जी पर है हम मुकिरान की कोई जिम्मेदारी वावत मकान मुवैया खाली कराने के न होगी। किराये पर बाबू मुरारी लाल श्रीवास्तव व हम मुकिरान के दरमियान एक वाद वावत किराया वसूली व वेदखली किराये दार मकान मुवैया से सम्बन्धित न्यायालय खफीफा मुसंफी इटावा को प्रचलित है जिसका मुकदमा नम्बर 64/75 है। इस मुकदमें में यदि खरीदार चाहे तो वह स्वंय प्रार्थना पत्र देकर मुकिरान के स्थान पर स्वंय पक्षकार वने तथा अपने खर्चे से उक्त किरायेदार के विरूद्ध मुकदमें में हस्व मंशा अपनी पैरवी करे हम मुकिरान को उक्त मुकदमें की पैरवी से कोई वास्ता व सरोकार न होगा। "

15. From the perusal of the averment made in the sale deed dated 29.07.1989, there is no dispute on the point that there is specific mention of SCC Suit No. 64 of 1975 pending before the SCC Court, Etawa for recovery of rent and eviction. Once there is averment that suit has been filed for recovery of rent and eviction, and further, authority has been given to subsequent purchaser to contest the case, there is no dispute that it also includes right to recover the rent. Therefore, submission of learned counsel for the petitioner that there is no authority given in the sale deed dated 29.07.1989 to plaintiff-Sri Govind Saran Dixit (since deceased) is incorrect.

16. Therefore, the judgment of Apex Court in the matter of Sheikh Noor(Supra) so relied upon by the learned counsel for the petitioner is not coming in the rescue of the petitioner rather it helps the plaintiff-respondent. Plaintiff-respondent is having full right to contest the case of eviction so pending earlier.

17. Now, coming to the second issue, that is about the filing of impleadment application under Order XXII Rule 10, CPC. Order XXII Rule 10, CPC provides that in case of assignment, creation or devolution of any interest during the pendency of a suit by the leave of Court, suit may be continued by a person upon whom such interest has been devolved.

18. To deal with the Order XXII Rule 10, CPC, the same is being quoted hereinbelow:

Order XXII Rule 10, CPC

Procedure in case of assignment before final order in suit-- (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).

19. In the present case, there is no dispute on the point that interest of Sri Govind Saran Dixit(since deceased) has been devolved after execution of sale deed dated 29.07.1989 in his favour.

20. This issue has been considered by the Apex Court in the matter of Amit Kumar Shaw(Supra). Relevant paragraph of the said judgment is quoted hereinbelow:

"12. Under Order XXII, Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. The question about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit."

21. From the perusal of said judgment, it is apparently clear that while considering the application under Order XXII Rule 10, CPC, Court has only to be prima facie satisfied for exercising its jurisdiction in granting leave for continuation of the suit and remaining questions about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings.

22. The very same issue was considered by this Court in the matter of Bhim Sen Wadhwa(Supra). Relevant paragraph of the said judgment is quoted herein below:

"6. A copy of the sale-deed is on record and it records that the right to sue together with the right to arrears of rent has also been assigned to the purchaser. The court below has considered the effect of provision of Order XXII Rule 10 CPC. It has also relied upon a decision of the Apex Court rendered in the case of Dhurandhar Prasad Singh Vs. Jai Prakash University [AIR 2001 SC 2552]. Apex Court in the aforesaid case has held that in case of devolution of interest during the pendency of a suit, it can be continued by or against persons upon whom such interest has devolved and this entitles the person who has acquired an interest in the subject matter of the litigation by an assignment or creation or devolution of interest pendentelite or suitor or any other person interested to apply to the Court for leave to continue the suit. In the opinion of the court, both the courts were fully justified in allowing both the applications, and the argument of the petitioner cannot be sustained. "

23. From the perusal of the said judgment, it is clear that in case devolution of interest during the pendency of a suit, it can be continued by a person on whom such interest has been devolved.

24. So far as present case is concerned, there is no doubt about the fact that interest has been devolved in favour of Sri Govind Saran Dixit(since deceased) after execution of sale deed dated 29.07.1989. Further, sale deed is having specific averment about the pendency of SCC Suit No. 64 of 1975 for arrears of rent and eviction, therefore, there is no illegality in the order of trial Court dated 13.03.2023, affirmed by the impugned revisional order dated 26.04.2023.

25. So far as second impugned order dated 26.04.2023 is concerned, the fact is that, during the pendency of suit proceedings, Sri Govind Saran Dixit-plaintiff died on 21.02.2018 and this Court exercising the power under Order I Rule 10, CPC has directed legal heirs of Sri Govind Saran Dixit to file application for impleadment under Order I Rule 10, CPC and Order VI Rule 17, CPC read with Section 151 CPC.

26. From the perusal of Order I Rule 10(2), it is apparently clear that Court has right to strike out or add parties at any stage and in the present case, the SCC Suit was pending since 1975, therefore, the Court has rightly proceeded to pass order dated 01.04.2023 for impleadment of legal heirs of Sri Govind Saran Dixit after his death. Against the said order, Revision No. 11 of 2004 was filed by the petitioner-defendant, which was rightly dismissed by the impugned order dated 13.03.2023 specifially in light of fact that once impleadment of Sri Govind Saran Dixit(since deceased) is valid in law, therefore, his legal heirs are also having right to be impleaded to contest the case.

27. Under such facts and circumstances of the case, I find no illegality in the impugned orders dated 3.03.2023 and 26.04.2023.

28. Petition lacks merit and is accordingly dismissed.

29. No order as to costs.

Order date: 19.05.2023

ADY