# Smt. Vishnu Kumari v. Sandeep Kumar & Ors

- **Citation:** (2023) 6 ILRA 441
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-19
- **Case number:** Writ-A No. 8227 of 2023
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-vishnu-kumari-v-sandeep-kumar-ors-50488
- **Pages:** 7

## Headnote

A. Property Law - Entitlement to recover
arrears - Impleadment - Transfer of
Property Act, 1882 - Section 109 - 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. (Para 13)

As per 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, Etawah 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. (Para 15)

B. Impleadment - 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. (Para 22, 23)

While considering the application u/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. (Para 20, 21)

In present case, there is no doubt 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. (Para 19, 24)

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 u/Order I Rule 10,
CPC has directed legal heirs of Sri Govind Saran
Dixit to file application for impleadment u/Order
I Rule 10, CPC and Order VI Rule 17, CPC r/w
Section 151 CPC. 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. (Para
25, 26)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

6 All. Smt. Vishnu Kumari Vs. Sandeep Kumar & Ors.
441
----------
(2023) 6 ILRA 441
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 8227 of 2023

Smt. Vishnu Kumari ...Petitioner
Versus
Sandeep Kumar & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Praveen
Kumar,
Sri
Onkar
Nath
Vishwakarma, Sri Pradeep Kumar (Sr.
Advocate)

Counsel for the Respondents:
Sri Punit Bhaduria

A. Property Law - Entitlement to recover
arrears - Impleadment - Transfer of
Property Act, 1882 - Section 109 - 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. (Para 13)

As per 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, Etawah 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. (Para 15)

B. Impleadment - 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. (Para 22, 23)

While considering the application u/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. (Para 20, 21)

In present case, there is no doubt 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. (Para 19, 24)

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 u/Order I Rule 10,
CPC has directed legal heirs of Sri Govind Saran
Dixit to file application for impleadment u/Order
I Rule 10, CPC and Order VI Rule 17, CPC r/w
Section 151 CPC. 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. (Para
25, 26)

Writ petition dismissed. (E-4)

Precedent followed:

1. Amit Kumar Shaw Vs Farida Khatoon, 2005
AIR (SC) 2209 (Para 8)

2. Bhim Sen Wadhwa Vs Sri Om Prakash Batra &
ors., 2010 (2) ARC 360 (Para 8)

Precedent distinguished:

Sheikh Noor Vs Sheikh G.S. Ibrahim (Dead) by
Lrs., 2003 0 Supreme (SC) 712 (Para 6)
442 INDIAN LAW REPORTS ALLAHABAD SERIES
Present appeal challenges orders dated
13.03.2023 and 26.04.2023, passed by
Addl. District Judge, Court No. 8, Etawah.

(Delivered by 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
6 All. Smt. Vishnu Kumari Vs. Sandeep Kumar & Ors.
443
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
444 INDIAN LAW REPORTS ALLAHABAD SERIES
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
मिान मुवैया में आवाद है उनिी किरायेदारी
रखना अथवा उनिो दखल िरना खरीदार िी
मजी पर है हम मुकिरान िी िोई जजम्मेदारी
6 All. Smt. Vishnu Kumari Vs. Sandeep Kumar & Ors.
445
वावत मिान मुवैया खाली िराने िे न होगी।
किराये पर बाब मुरारी लाल श्रीवास्तव व हम
मुकिरान िे दरलमयान एि वाद वावत किराया
वस ली व वेदखली किराये दार मिान मुवैया से
सम्बजन्द्धत न्द्यायालय खिीिा मुसूंिी इटावा िो
प्रचललत है जजसिा मुिदमा नम्बर 64/75 है।
इस मुिदमें में यदद खरीदार चाहे तो वह स्वूंय
प्राथषना पत्र देिर मुकिरान िे स्थान पर स्वूंय
पक्षिार वने तथा अपने खचे से उक्त किरायेदार
िे ववरूद्ध मुिदमें में हस्व मूंशा अपनी पैरवी
िरे हम मुकिरान िो उक्त मुिदमें िी पैरवी से
िोई वास्ता व सरोिार 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 plaintiffrespondent. 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
446 INDIAN LAW REPORTS ALLAHABAD SERIES
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 Dixitplaintiff 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
6 All. Jadhav Siddhodhan Ankush Vs. Union of India & Ors.
447
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.
----------
(2023) 6 ILRA 447
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.04.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 44517 of 2016

Jadhav Siddhodhan Ankush ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Gulab Chandra

Counsel for the Respondents:
A.S.G.I., Sri Nand Lal. U.O.I.

A.
Service
Law
-
Termination
-
Misrepresentation - Central Civil Services
(Temporary Service) Rules, 1965 - In
order to elicit truth of 'knowledge' directly
from the employee, given an opportunity,
he would be explaining his conduct and
that will do the needful. (Para 14)

Even though there is right to terminate the
service of employee who is charged of
furnishing false information and so there can be
no compulsion for the appointing authority to
continue
with
such
employee,
but
"McCarthyism"
is
antithesis
to
the
constitutional goal which of course is on
the bed-rock of reformative theory qua
the young offenders in suitable cases.
(Para 13)

Whenever a fact is to be enquired into as to
whether a candidate had the knowledge of a
criminal
case/proceeding
lodged/instituted
against him at the time he filled up the
application
form
seeking
selection
and
appointment on post advertised, the knowledge
factor becomes important. In order to elicit this
factum of knowledge of criminal case, it
becomes imperative to hold atleast a preliminary
fact finding enquiry even while an employee is
still on probation, and therefore, such an
employee must be put to a notice to explain his
conduct in the matter. (Para 15)

Thus, if concealment or alleged concealment for
want of knowledge of a candidate, in a criminal
case becomes a dominant factor to reject his
candidature and consequently to terminate him
from service, an order of termination may
be an order simpliciter termination but
department/employer must conform to
the principles of natural justice in its
action. It is held that continuance of an
employee
in
service
where
he
had
knowledge or no knowledge at the time of
filing up a form or signing the attestation
form, will be well within the discretion of
the employer. (Para 16)

It is considered appropriate for the authority to
give one opportunity to the petitioner to explain
his conduct and then to take action in
accordance with law. (Para 17)

Writ petition allowed. (E-4)

Precedent followed: