# Smt. Kamla Verma & Ors v. A.D.J.-XII Lko. & Ors

- **Citation:** (2026) 1 ILRA 578
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-01-05
- **Case number:** Matters Under Article 227 No. 7293 of 2025
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kamla-verma-ors-v-a-d-j-xii-lko-ors-53943
- **Pages:** 8

## Text

578 INDIAN LAW REPORTS ALLAHABAD SERIES
the arguments amongst the Judges of the High Court for their information. Such communication be conveyed
as confidential and in a sealed cover.

(iv) Where a judgment is not pronounced within three months from the date of reserving it, any of
the parties in the case is permitted to file an application in the High Court with a prayer for early judgment.
Such application, as and when filed, shall be listed before the Bench concerned within two days excluding the
intervening holidays.

(v) If the judgment, for any reason, is not pronounced within a period of six months, any of the
parties of the said lis shall be entitled to move an application before the Chief Justice of the High Court with
a prayer to withdraw the said case and to make it over to any other Bench for fresh arguments. It is open to
the Chief Justice to grant the said prayer or to pass any other order as he deems fit in the circumstances."

7. This aspect of the matter was again considered by the Apex Court in the case of Ravindra Pratap
Sahi Vs. State of U.P. and Others, Criminal Appeal No. 3700/3701 of 2025 (decided on 25.08.2025),
wherein citing the judgment of the Apex Court in the case of Anil Rai (supra), the Apex Court was of the
view that judgment should be pronounced within a period of three months. It was further observed that in
case the judgments are not pronounced, then within two weeks of the fact been brought to the knowledge of
the respective Bench, the matter ought to be assigned to another Bench.

8. This Court see no reason as to why the said pronouncement be also made applicable to the revenue
Courts including the Board of Revenue, who are directed to pronounce judgments within a period of three
months from the date they are reserved.

9. Accordingly, in view of the arguments of the respective counsels as well as taking into account
various directions of the Apex Court, present writ petition is disposed of with direction to the petitioner to
bring this judgment to the knowledge of the Board of Revenue. In case judgment is not pronounced within
two weeks from the date of production of certified copy of this order, the matter shall be assigned to another
Bench of the Board of Revenue for being heard and decided in terms of various directions issued by the
Apex Court as well as directions issued in the present case.

10. Let a copy of the present judgment be also placed before the Chairman, Board of Revenue, U.P.
Lucknow by the office of learned Chief Standing Counsel, forthwith.
----------
(2026) 1 ILRA 578
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.01.2026

BEFORE
THE HON'BLE SUBHASH VIDYARTHI, J.

Matters Under Article 227 No. 7293 of 2025

Smt. Kamla Verma & Ors. ...Petitioners
Versus
A.D.J.-XII Lko. & Ors. ...Respondents
1 All. Smt. Kamla Verma & Ors. Vs. A.D.J.-XII Lko. & Ors.
579
Issue for Consideration
Whether the ex parte decree for ejectment passed in SCC Suit No.60 of 2012 is a nullity on
grounds of improper service of summons on the original tenant and substituted heirs, absence of
fresh summons post-substitution, defective notice under Section 106 TP Act by power of
attorney holder, and non-substitution of petitioner no.2 (Hema Verma)?

Headnotes
Code of Civil Procedure, 1908 --- O. XXII r.4 --- Provincial Small Causes Courts Act, 1887 --- s.25
--- U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 --- s.3(a) ---
Execution of Decree --- Objections u/s.47 CPC --- Ex-parte Decree --- Substitution of heirs post
death of original defendant in ex-parte suit --- No fresh summons required --- Service by refusal
on substitution application sufficient --- Decree not nullity.

HELD:
Where suit proceeded ex-parte against original defendant prior to his death, substitution of heirs under O.
XXII r.4 CPC not mandatory; court may exempt plaintiff from substitution and decree suit notwithstanding
death. Even after substitution following service by refusal on heirs, no fresh summons required as suit already
ex-parte. Executing court cannot go behind decree to question trial court's satisfaction on service or notice
validity. [Paras 15-17, 25]

Code of Civil Procedure, 1908 --- s.47, s.152 --- U.P. Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 --- s.3(a) --- Mere typographical error in heir's name (Heena/ Hema
Verma) --- Corrected u/s.152 CPC --- Decree binding on joint heirs of deceased tenant in
residential premises --- No averment of normal residence with deceased tenant.
HELD: Heirs of deceased tenant in residential building become joint tenants only if normally residing with him
at death; no such plea raised. Error in name description does not vitiate decree where notices served on heirs
and knowledge of proceedings exists. Joint tenants bound by decree against others; notice to one suffices.[
Paras 9-10, 18-20, 24]

Petition dismissed. (E-14)

Case Law Cited
Savitri Devi v. District Judge, Gorakhpur, 1999 2 SCC 577 --- referred to; Jogendrasinhji
Vijaysinghji v. State of Gujarat, 2015 9 SCC 1 --- relied on; Textile Association (India) Bombay
Unit v. Balmohan Gopal Kurup, AIR 1990 SC 2053 -distinguished; Harish Tandon v. ADM, 1995 1
SCC 537 --- relied on; Gian Devi Anand v. Jeevan Kumar, 1985 2 SCC 683 --- relied on; H.C.
Pandey v. G.C. Paul, 1989 3 SCC 77 --- referred to; Durga Prasad Tiwari v. Additional District
Judge, 2008 1 All LJ 518 --- relied on.

List of Acts / Statutes
Code of Civil Procedure, 1908; Transfer of Property Act, 1882; U.P. Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 ; Provincial Small Causes Courts Act, 1887; Constitution of India.

List of Keywords
Ex-parte decree; Substitution of heirs; Service by refusal; Joint tenants; Typographical error; Executing court;
Nullity of decree.

Case Arising From
Judgment and order dated 27.05.2025 passed by Addl. Distt. Judge-XII, Lucknow in SCC Revision No.24 of
2015; order dated 23.05.2015 passed by Judge Small Causes Court, Lucknow in Misc. Case No.31 of 2014 in
Execution Application No.1 of 2014 arising out of ex-parte judgment dated 16.09.2013 in SCC Suit No.60 of
2012, Salil Kumar Rastogi v. Ram Bharose Verma (dead) through LRs.
580 INDIAN LAW REPORTS ALLAHABAD SERIES
Appearance for Parties
For the Petitioners: Sri Jitendra Kumar Saxena.
For the Respondents: Learned Standing Counsel.

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Jitendra Kumar Saxena, the learned counsel for the petitioners and perused the
records.

2. By means of the instant petition filed under Article 227 of the Constitution of India, the
petitioners have challenged an ex-parte judgment and decree dated 16.09.2013, passed by learned
Judge Small Causes Court, Lucknow in SCC Suit No.60 of 2012: Salil Kumar Rastogi Vs. Ram
Bharose Verma (dead) through LRs. The petitioners had filed an application under Section 47 read
with Section 151 C.P.C. raising objection against the application for execution of the ex-parte
decree and the Judge Small Causes Court, Lucknow rejected this application by means of an order
dated 22.03.2015. The rejection order was challenged by filing SCC Revision No.24 of 2015,
which has been dismissed by means of a judgment and order dated 27.05.2025 and the petitioners
have challenged the validity of the order dated 23.05.2015 and the revisional order dated
27.05.2025 also.

3. The petitioners have impleaded the learned Additional District Judge-XII, Lucknow and
Judge Small Causes Court, Lucknow as opposite parties no.1 and 2 to the petition.

4. The Registry had put an objection against impleadment of the courts as the opposite parties
to the petition and although the petitioners have filed a supplementary affidavit stating that the
courts have been impleaded erroneously no prayer has been made for striking out the courts as the
opposite parties to the petition, whereas, as far back as in the year 1995 in the case of Savitri Devi
Vs. District Judge, Gorakhpur; (1999) 2 SCC 577 the Hon'ble Supreme Court deprecated the
practice of courts being impleaded as opposite parties to the petition filed in the High Courts and
Hon'ble Supreme Court.

5. In the case of Jogendrasinhji Vijaysinghji v. State of Gujrat, (2015) 9 SCC 1 the Hon'ble
Supreme Court has clarified that: -

43. ...The civil courts, which decide matters, are courts in the strictest sense of the term.
Neither the court nor the Presiding Officer defends the order before the superior court it does
not contest. If the High Court, in exercise of its writ jurisdiction or revisional jurisdiction, as the
case may be, calls for the records, the same can always be called for by the High Court without
the Court or the Presiding Officer being impleaded as a party. ... the authorities or the tribunals,
who in law are entitled to defend the orders passed by them, are necessary parties and if they are
not arrayed as parties, the writ petition can be treated to be not maintainable or the court may
grant liberty to implead them as parties in exercise of its discretion. There are tribunals which are
not at all required to defend their own order, and in that case such tribunals need not be arrayed
as parties...
1 All. Smt. Kamla Verma & Ors. Vs. A.D.J.-XII Lko. & Ors.
581

Therefore, the Additional District Judge ought not to have been impleaded.

6. The proceeding arise out of S.C.C. Suit No. 60 of 2012 filed by the landlord Salil Kumar
Rastogi (the opposie party no. 3) for ejectment of the tenant Sri. Ram Bharose Verma (since
deceased, the predecessor in interest of the petitioners) from the premises bearing House
No.109/136-Ka, new No.109/187, situated in Model House, Lucknow. The landlord had pleaded in
the suit that he had purchased the house from its previous owners Nishi Tandon and Ramesh
Tandon. He had sent a notice under Section 106 of Transfer of Property Act to the tenant, which
was served on 28.03.2012, but in spite of it the tenant did not pay rent to him and did not vacate the
house. It is recorded in the order dated 10.12.2012 passed by the trial Court that the defendant Ram
Bharose Verma did not put in appearance in spite of service of summon and, therefore, the suit was
ordered to proceed ex-parte.

7. The tenant defendant Sri. Ram Bharose Verma died on 27.01.2013. The plaintiff filed an
application for substitution of his heirs. On 21.03.2013, the trial Court held service of notice of the
application for substitution to be sufficient. On 23.04.2013, the trial Court passed an order allowing
the substitution application recording that inspite of service of notice on the proposed heirs of the
deceased defendant, they had not filed any objection against the application. The plaintiff examined
himself in evidence and produced a carbon copy of the notice alongwith postal receipt and a copy
of the power of attorney as documentary evidence. The suit was decreed by an ex-parte judgment
dated 16.09.2013 wherein the trial court has recorded a satisfaction that the defendant was in
arrears of rent exceeding four months and he had not paid the rent and had not vacated the property
in spite of service of notice. No revision was filed against the ex-parte judgment and decree dated
16.09.2013 and it has attained finality.

8. The decree holder filed Execution Application No. 1 of 2014 for execution of the ex-parte
judgment and decree dated 16.09.2013. The petitioners filed an application under Section 47 CPC,
which was registered as Misc. Case No. 31 of 2014, wherein it was inter alia, stated that the notice
of demand of arrears of rent was sent by the landlord, Salil Kumar Rastogi, but the suit was filed
through his power of attorney holder, Mr. Shoeb Ahmed. The notice sent by the house owner
cannot form the basis of a suit for ejectment filed through his power of attorney holder when the
power of attorney holder himself had not sent any notice determining tenancy and demanding
arrears of rent. The petitioners also alleged that the summon of the suit had not been served
properly. However, there is no categorical denial that summons of the suit had not been served on
the petitioners-tenants. One of the objections raised in the application under Section 47 is that the
landlord has substituted Heena Verma whereas the petitioner no.2 is Hema Verma, who has not
been impleaded as a defendant to the suit after the death of the original defendant Late Ram

9. The objections under Section 47 CPC were rejected by means of the impugned order dated
23.05.2015 wherein the Court held that the plea that the suit was filed through a power of attorney
holder cannot be examined upon objections filed under Section 47 CPC, as the executing court
cannot go behind the decree. The suit was filed against the original tenant, Ram Bharose Verma.
His heirs were substituted after his death. The name of Hema Verma has been corrected through an
application under Section 152 CPC. A mere error in spelling of the name of the petitioner no.2 does
582 INDIAN LAW REPORTS ALLAHABAD SERIES
not affect the validity of the decree when notices were duly served on the heirs of the deceased
tenant, Shri Ram Bharose Verma, and they had full knowledge of the proceedings.

10. It is also mentioned in the impugned order dated 23.05.2015 that Hema Verma had filed an
application in Execution Case No. 1/14 stating that she is not a party to the proceedings, rather,
Heena Verma has been impleaded as a party and, therefore, she would not be bound by the
outcome of the execution case. This objection of the petitioner no.2 has already been decided by
means of a detailed order dated 08.05.2015.

11. The executing court further held that the SCC suit was instituted on 17.05.2012, summons
were issued to the defendant and on 10.12.2012, service of summons was held to be sufficient and
the suit was ordered to proceed ex-parte. After the death of the original defendant, Shri Ram
Bharose Verma, notices were issued to his proposed heirs and service was held to be sufficient by
means of an order dated 21.03.2013 on the ground that the heirs declined to receive the notice and
thereafter the substitution application was allowed by means of an order dated 23.04.2013.

12. The executing court held that the petitioner no.2 is daughter of the original tenant and the
decree passed against the other joint tenants would equally be binding on her, as any of the joint
tenants can represent the other joint tenants. A mere error in description of the name of the
petitioner no.2 would not render the decree nullity. This order has been affirmed in revision.

13. Assailing the validity of the aforesaid orders, the learned counsel for the petitioners has
submitted that after substitution of heirs of the deceased original tenant late Ram Bharose Verma,
the trial court did not issue any notice to the heirs of the original tenant and the court passed an exparte judgment and decree, which is nullity.

14. A perusal of the order sheet of the trial court indicates that when summons of the suit were
served on the original defendant, yet he did not appear before the trial court, an order was passed
on 10.12.2012 to proceed with the suit ex-parte. The original tenant Sri Ram Bharose Verma, died
on 27.01.2013. Thereafter, an application for substitution of his heirs was filed, upon which notices
were issued to the proposed heirs of late Ram Bharose Verma. On 21.03.2013, the court passed an
order holding service of notice of the application to be sufficient on the proposed heirs of late Ram
Bharose Verma and on 23.04.2013, the substitution application was allowed and heirs of Late Ram
Bharose Verma were substituted in his place. Thereafter, the court fixed a date for filing an
additional written statement, which was not filed, the plaintiff filed evidence and advanced its exparte submissions and the suit was decreed ex-parte on 16.09.2013.

15. Order XXII, Rule 4 (4) provides as follows: -

 Order XXII

Death, Marriage and Insolvency of Parties

(4). Procedure in case of death of one of several defendants or of sole defendant.-
1 All. Smt. Kamla Verma & Ors. Vs. A.D.J.-XII Lko. & Ors.
583

* * *

(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of
substituting the legal representative of any such defendant who has failed to file a written statement
or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may,
in such case, be pronounced against the said defendant notwithstanding the death of such
defendant and shall have the same force and effect as if it has been pronounced before death took
place."

16. As per the provision contained in Order XXII Rule 4(4) CPC, when the suit was
proceeding ex-parte against the original defendant, Late Ram Bharose Verma, by means of an order
dated 10.12.2012, it was not necessary for the trial court to substitute the legal representatives of
late Ram Bharose Verma and the suit could have been decreed ex-parte, even without carrying out
substitution of the name of the original defendant, yet the court issued notices on the application for
substitution of the deceased defendant. The notices were served by refusal to receive the same. By
means of the order dated 21.03.2013, the trial court held service of notice to be sufficient by refusal
and, thereafter, the heirs of the original defendant were substituted.

17. When substitution of the heirs of the original defendant was not necessary for the reason
that the suit was already proceeding ex-parte against the original defendant, there was no necessity
of issuing any fresh summons to the heirs of the original defendant, more particularly when the
notices on the application for substitution were served by refusal. In these circumstances, the exparte judgment and decree dated 16.09.2013 cannot be said to be nullity for non-issuance of any
fresh summons to the substituted heirs of the original defendant after their substitution, when the
original defendant was not contesting the suit, even after service of notice and the suit was
proceeding ex-parte.

18. The learned counsel for the petitioners has submitted that the petitioner no.2 has not been
substituted and, therefore, the impugned ex-parte judgment is not binding on her. A perusal of the
substitution application shows that the heir no.2 of the deceased defendant is mentioned as Heena
Verma whereas the petitioner no.2 is Hema Verma . The learned trial Court has already held that
it was a mere typographical error in the description of petitioner no.2, which has been corrected by
an order passed under Section 152 CPC and it would not make the decree a nullity.

19. Section 3(a) of U.P. Act No.13 13 of 1972 provides as follows:

3. Definitions.- In this Act, unless the context otherwise requires-

(a) tenant , in relation to a building, means a person by whom its rent is payable, and on
the tenant's death-

(1) in the case of residential building, such only of his heirs as normally resided with him
in the building at the time of his death;

(2) in the case of a non-residential building, his heirs;
584 INDIAN LAW REPORTS ALLAHABAD SERIES

(Explanation.-An occupant of a room in a hotel or a lodging house shall not be deemed to
be a tenant;

20. The learned Counsel for the petitioners has admitted that the premises in question is a residential
premises and therefore, Section 3(a)(2) of Act would not apply to the present case. In the application under
Section 47 CPC, as also in the petition under Article 227 of the Constitution of India, there is no averment that
petitioner no.2 was normally residing with late Ram Bharose Verma in the building in question at the time of his
death. Therefore, the pleadings do not make out that upon the death of late Ram Bharose Verma, the petitioner
no.2 became a tenant in respect of the premises in dispute and she was entitled to be substituted in his place.

21. The Learned Counsel for the petitioner has placed reliance upon a judgment of the Hon'ble Supreme
Court in the case of Textile Association (India) Bombay Unit Vs. Balmohan Gopal Kurup and another:
AIR 1990 Supreme Court 2053 wherein the Hon ble Supreme Court has noted that there is a finding in this
case that the respondent was as much a tenant as the mother and other brother. That being the position, the exparte decree for eviction obtained against his mother and brother, without impleading him in that suit has to be
set aside .

22. Neither is there any such finding in the present case, nor are there any pleadings or averments so as to
make out that the petitioner no.2 has become one of the joint tenants upon the death of the original defendant for
the reason that she was normally residing with him in the building at the time of his death. Therefore, the facts of
the present case are different from the facts on the basis whereof the judgment in the case of Textile Association
(Supra) was rendered.

23. In Harish Tandon v. ADM: (1995) 1 SCC 537, the Hon ble Supreme Court held that: -

23. It appears to us, in the case of H.C. Pandey v. G.C. Paul [(1989) 3 SCC 77] it was rightly said by
this Court that after the death of the original tenant, subject to any provision to the contrary, the tenancy
rights devolve on the heirs of the deceased tenants jointly. The incidence of the tenancy is the same as those
enjoyed by the original tenant. It is a single tenancy which devolves on the heirs and there is no division of
the premises or of the rent payable therefor and the heirs succeed to the tenancy as joint tenants.

24. In the case of Gian Devi Anand v. Jeevan Kumar [(1985) 2 SCC 683] the Constitution Bench of
this Court in connection with Delhi Rent Control Act, 1958 said:

 The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will
step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including
the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant. As
the protection afforded by the Rent Act to a tenant after determination of the tenancy and to his heirs on the
death of such tenant is a creation of the Act for the benefit of the tenants, it is open to the Legislature which
provides for such protection to make appropriate provisions in the Act with regard to the nature and extent of the
benefit and protection to be enjoyed and the manner in which the same is to be enjoyed. If the Legislature
makes any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in
a specified manner by any particular class of heirs of the deceased tenant on any condition laid down being
fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfilment of the condition in the
manner and to the extent stipulated in the Act.
1 All. Krishna Bihari Yadav Vs. State of U.P. & Ors.
585

25. The framers of the Act have clearly expressed their intention in Sections 12, 20 and 25 while
protecting the tenant from eviction except on the grounds mentioned in Section 20, that after the death of the
original tenant his heirs will be deemed to be holding the premises as joint tenants and for any breach
committed by any of such joint tenants, all the heirs of the original tenant have to suffer. They cannot take a
plea that unless the grounds for eviction mentioned in sub-section (2) of Section 20 are established individually
against each one of them, they cannot be evicted from the premises in question.

24. In Durga Prasad Tiwari v. Additional District Judge/Special Judge (S.C./S.T. Act), Allahabad:
(2008) 1 All.L.J. 518 = 2007 SCC OnLine All 590, this Court held that

20. ...The Supreme Court in the case of Harish Tandon (supra) has categorically held that the
heirs of tenant inherit the premises as joint tenants and not as tenants-in-common and therefore, the notice
to one was sufficient notice to all for the purpose of the proceedings under section 21(1)(a) of the Act. The
Supreme Court held that after the death of the original tenant, his heirs became the joint tenants and not
tenants-in-common .

Therefore, the petitioner no. 2 being merely one of the several joint tenants, even in case there was
any defect in service of notice upon her, it would not make the decree passed against all the joint tenants a
nullity when the notices were served on the other joint tenants.

25. The Learned Counsel for the petitioners next submitted that summons of the suit were not
properly served on the original defendant. The trial court has recorded a satisfaction regarding proper
service of the suit in the order dated 10.12.2012, on the basis whereof the ex-parte judgment and decree
dated 03.10.2013 was passed. The petitioners did not assail the order dated 10.12.2012 and they did not
file any revision under Section 25 of the Provincial Small Causes Courts Act against the ex-parte judgment
and decree dated 03.10.2013. It is settled law that the executing court cannot go behind the decree and
cannot examine the facts recorded or the satisfaction recorded by the trial court in the ex-parte judgment or
in any order passed during the pendency of the suit. Therefore, this plea is not open to be raised in a
proceeding under Section 47 CPC.

26. In view of the foregoing discussions, I find no good ground to entertain the petition, which is dismissed
at the admission stage.
----------
(2026) 1 ILRA 585
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.01.2026

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Matters Under Article 227 No. 15414 of 2025

Krishna Bihari Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents