# Uday Bhan Tiwari Revisionist v. Pashupati Colonizers Pvt. Ltd. & Ors

- **Citation:** (2021) 4 ILRA 118
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-04-12
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uday-bhan-tiwari-revisionist-v-pashupati-colonizers-pvt-ltd-ors-47030
- **Pages:** 7

## Headnote

-----

(A) Practice & Procedure - Necessary &
Proper
Party
-
Code
of
Civil
Procedure,1908 - Order 1 Rule 10(2)

It is a settled proposition of law that on death of
a tenant, his heirs inherits the tenancy jointly
and decree passed against one or some of the
tenant is binding on non impleaded tenant also.
The revision-applicant who is claiming to be the
4 All. Uday Bhan Tiwari Vs. Pashupati Colonizers Pvt. Ltd. & Ors.
119
joint tenant of the property is neither necessary
or proper party. The present impleadment
application is filed mischievously with an intent
to delay the disposal of the suit. (Para 16-19)

Revision Rejected. (E-8)

List of Cases cited:-

## Text

118 INDIAN LAW REPORTS ALLAHABAD SERIES
comes to the deposit of the total amount to
be paid to the allottee including interest
and compensation under the orders of the
regulatory
authority
or
adjudicating
officer, no such discretion based on a
'determination' appears to have been vested
in
the
Appellate
Tribunal
by
the
legislature."

30. Thus, the view taken by this Court
in the aforesaid decision is only to the
effect that the minimum deposit to maintain
an appeal against the penalty, would be
30% of the penalty amount. For deposit of
any higher amount, a determination would
have to be made by the Tribunal. The Court
made
a
distinction
in
the
statutory
conditions requiring pre deposit to be made
with respect to the disputed demand of
penalty (where a minimum 30% was
required to be deposited and a higher
deposit
required
if
the
Tribunal
so
determined) and other amounts that may be
awarded by the RERA where no such
discretion exists. Therefore, those amounts
may have to be deposited in entirety.

31. Therefore, even in that earlier
decision of this Court, it was not laid down
by way of a rule that the appellant deposits
the entire amount of penalty as a precondition to maintain its appeal. The
Tribunal has clearly misconstrued, both the
statutory provision as well as the decisions
of this Court passed in Second Appeal Nos.
364 of 2018 and 367 of 2018. Accordingly,
the question of law is answered in the
negative i.e. in favour of the appellant.

32. Consequently, the order dated
passed by the Tribunal dated 28.02.2020 is
set aside. Normally, the matter would have
been remanded to decide the application
under section 43(5) of the Act, afresh,
however, since it has already been
observed, that no special circumstance had
been recorded or noted by the Tribunal and
the appellant had already deposited 30% of
the disputed demand of penalty, in the facts
of the present case, since the status of the
appellant is also claimed to be that of a
zero-profit society existing solely for the
object of providing affordable housing to
the personnel of the Indian Air Force and
Indian Navy and the widows of such
personnel, it appears just that the appeal be
heard and decided by the Tribunal on its
own merits, against the deposit of 30% of
the disputed demand of penalty.

33. According the appeal is allowed.
----------
(2021)04ILR A118
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

S.C.C. Revision Defective No.- 02 of 2021

Uday Bhan Tiwari ...Revisionist
Versus
Pashupati Colonizers Pvt. Ltd. & Ors.
 ...Respondents

Counsel for the Revisionist:
Sri Kamlesh Kumar Mishra

Counsel for the Respondents:
-----

(A) Practice & Procedure - Necessary &
Proper
Party
-
Code
of
Civil
Procedure,1908 - Order 1 Rule 10(2)

It is a settled proposition of law that on death of
a tenant, his heirs inherits the tenancy jointly
and decree passed against one or some of the
tenant is binding on non impleaded tenant also.
The revision-applicant who is claiming to be the
4 All. Uday Bhan Tiwari Vs. Pashupati Colonizers Pvt. Ltd. & Ors.
119
joint tenant of the property is neither necessary
or proper party. The present impleadment
application is filed mischievously with an intent
to delay the disposal of the suit. (Para 16-19)

Revision Rejected. (E-8)

List of Cases cited:-

1. Suresh Kumar Kohli Vs Rakesh Jain & anr.
2018 (2) ARC 40 SC

2. Krishna Kityal (Smt.) Vs Kamlesh Gupta
(Smt.) & anr. 2008 (2) ARC 603 (followed)

3. Lalit Kumar Vs Neel Kantheshwar & ors. Civil
Misc.
Writ
Petition
No.
20787
of
2006
(distinguished)

4. Gauri Shankar Gupta Vs Anita Mishra & anr.
2004 (1) ARC 200 (followed)

5. Ashok Chintaman Juker & ors. Vs Kishore
Pandurang Mantri & anr. AIR 2001 SC 2251

6. H.C. Pandey Vs G.C. Paul AIR 1989 SC 1470

7. Harish Tandon Vs Aditional District Magistrate
& ors. 1995 (1) ARC 220 (SC) (followed)

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard learned counsel for the
revision-applicant.

2. The present revision under Section
25 of Provincial Small Causes Courts Act is
directed against the order dated 5.12.2020
passed by Additional District Judge/Special
Judge (Prevention of Corruption Act), Court
No. 5, Gorakhpur in S.C.C. Suit No. 9 of
2010 (Pashupati Colonizers Vs. Chandra
Bhan Tripathi) whereby the court below has
dismissed the application of the revisionapplicant under Order 1 Rule 10 (2) of C.P.C.
for impleading him as respondent in the
S.C.C. Suit No. 9 of 2010.

3. A suit for eviction has been
instituted by the respondent No. 1Pashupati
Colonizers
Private
Limited
contending inter-alia that Chandra Bhan
Tiwari (since deceased) was tenant of the
premise No. C-123/89 Purdilpur, District
Gorakhpur. The rent of the premise has not
been paid since January 2006. After the
death of Sri Chandra Bhan Tiwari, the
respondent Nos. 2 and 3 have been
substituted as his heirs.

4. In the suit, the revision-applicant
filed an application paper No. 127-Ga
under order 1 rule 10 (2) C.P.C. on the
ground that his father late Ram Lakhan
Tiwari was original tenant of the premises
in question, and after his death, he
alongwith his brother late Chandra Bhan
Tiwari became the joint tenant of the
premises
in
question.
Therefore,
the
revision-applicant is necessary and proper
party in the aforesaid suit and the suit
cannot be decided effectively without
impleadment of revision-applicant.

5. The application paper No. 127-ga
was contested by the respondent No. 1 by
filing objection paper No. 131-ga wherein
it is contended that the revision-applicant
was never in possession of any portion of
the property in dispute nor he was a joint
tenant of the property in dispute. The
application has been filed after 10 years
from the date of institution of suit only with
an intention to delay the disposal of the
suit. It was further pleaded that the
revision-applicant alongwith his brother
had submitted affidavit 16-ga on 9.2.2011
for recall of the ex-parte order, and in the
affidavit paper No. 17-ga, he had not
claimed that he was ever in possession of
the property in dispute. It was also stated
120 INDIAN LAW REPORTS ALLAHABAD SERIES
that the revision-applicant had knowledge
about the case since 7.2.2011.

6. The trial court while dismissing the
application noted that the suit have been
instituted in the year 2010 and the revisionapplicant alongwith his brother late Chandra
Bhan Tiwari had filed application 16-ga
under order 9 rule 7 of C.P.C. for recalling
the ex-parte order and in the objection filed
against the said application, the respondent
No. 1-plaintiff has stated that the revisionapplicant was not recessary party as the
person who is doing business in the premises
in dispute was impleaded as a party, yet he
did not file any impleadment application
immediately thereafter.

7. The trial court also noticed the
judgement of the Apex Court in the case of
Suresh Kumar Kohli Vs. Rakesh Jain and
another, 2018 (2) ARC 40 SC and
judgement of this Court in the case of
Krishna Kityal (Smt.) Vs. Kamlesh Gupta
(Smt.) and another, 2008 (2) ARC 603 in
concluding that the revision-applicant is
neither necessary party nor a proper party as
after the death of original tenant, his heirs
inherited the property jointly and a decree
passed against one or some of them is
binding upon other tenants.

8. Challenging the impugned order,
counsel for the revision-applicant has
submitted that the revision-applicant is
necessary
and
proper
party
and
impleadment of necessary and proper party
can be done at any stage of the proceedings
in the interest of justice. He submits that in
the facts of the present case, the court
below has committed manifest error of law
in not allowing the application of revisionapplicant under order 1 rule 10 (2) of
C.P.C. despite the fact that the revisionapplicant is necessary and proper party.

9. In support of his submission, he has
placed the judgement of this Court
rendered in Civil Misc. Writ Petition No.
20787 of 2006 (Lalit Kumar vs. Neel
Kantheshwar and others) wherein this
Court relying the judgement of this Court
in Gauri Shankar Gupta Vs. Anita
Mishra and another, 2004 (1) ARC 200
has held that ordinarily after the death of
tenants particularly in case of tenancy of
non-residential building all the heirs must
be impleaded as tenants in ejectment suit.

10. I have heard learned counsel for
the revision-applicant and perused the
record.

11. The facts as emanate from the
record are that the case of plaintiffrespondent No. 1 is that he has purchased
the property in dispute from the erstwhile
owner Sri Amitabh Rai by sale deed dated
15.6.2004. Chandra Bhan Tiwari (since
deceased) was the tenant of the property in
dispute. The tenant had not paid the rent of
the property in dispute since January 2006,
and therefore, the cause of action arose for
the plaintiff-respondent No. 1 seeking a
decree of eviction against tenant Chand
Bhan Tiwari (since deceased) on the
ground of arrears of rent. It is also clear
from the record that the revision-applicant
has filed application alongwith affidavit
paper No. 16-ga and 17-ga with late
Chandra Bhan Tiwari for recalling the exparte order in which specific objection was
filed by the plaintiff/respondent No. 1 that
the revision-applicant has no concern with
the premise in question nor he is in
possession over any part of the premises in
dispute. The revision-applicant, thereafter,
did
not
file
any
application
for
impleadment in the suit and went into
slumber, and after about 10 years from the
date of filing of the suit, he woke up for his
4 All. Uday Bhan Tiwari Vs. Pashupati Colonizers Pvt. Ltd. & Ors.
121
right and filed impleadment application
under order 1 rule 10 (2) of C.P.C. claiming
himself to be proper and necessary party
for effective adjudication of the case.

12. The trial court noticed paragraphs25 and 26 of the written statement of the
defendant No. 1 wherein it is averred that
original suit No. 776 of 2003 (Chandra
Bhan Tiwari vs. Amitabh Rai and others)
was instituted in the court of Civil Judge
(Jr. Division) with respect to the property
in dispute, and if the revision-applicant was
necessary party then in what capacity
Chandra Bhan Tiwari alone instituted
original suit No. 776 of 2003. The trial
court after noticing the aforesaid fact held
that
the
revision-applicant
is
not
a
necessary party as Chandra Bhan Tiwari
alone had instituted a suit against erstwhile
owner Amitabh Rai on the ground of
possession in the property in dispute. The
aforesaid finding is based upon proper
apprecation of facts on record and is not
perverse.

12.A. At this juncture, it would be apt
to consider judgement of Apex Court as well
as of this Court as to what is the right of the
heirs of original tenant after his death in the
rented property. The Apex Court in the case
of Suresh Kumar Kohli (supra) held that
where original tenant dies, the legal heirs
inherit the tenancy as joint tenants and
occupation of one of the tenant is occupation
of all the joint tenants, therefore, it is not
necessary for landlord to implead all legal
heirs of deceased tenant, whether they are
occupying the property or not. It is sufficient
for the landlord to implead either of those
persons who are occupying the property as
party. Paragraphs-20 & 21 of the said
judgement is reproduced herein below:-

"20. We are of the view that in
the light of H.C. Pandey (supra), the
situation is very clear that when original
tenant dies, the legal heirs inherit the
tenancy as joint tenants and occupation of
one of the tenant is occupation of all the
joint tenants. It is not necessary for
landlord to implead all legal heirs of the
deceased
tenant,
whether
they
are
occupying the property or not. It is
sufficient for the landlord to implead either
of those persons who are occupying the
property, as party. There may be a case
where landlord is not aware of all the legal
heirs of deceased tenant and impleading
only those heirs who are in occupation of
the property is sufficient for the purpose of
filing of eviction petition. An eviction
petition against one of the joint tenant is
sufficient against all the joint tenants and
all joint tenants are bound by the order of
the Rent Controller as joint tenancy is one
tenancy and is not a tenancy split into
different legal heirs. Thus, the plea of the
tenants on this count must fail.

21. Even otherwise, the intervention at
this belated stage of execution proceedings,
in the fact and circumstances of the case,
seems to be a deliberate attempt to nullify
the decree passed in favour of the appellant
herein as when Respondent No.1 filed
objections under Section 47 Order XXI of
the Code, he claimed to be in possession of
the suit premises, however, he failed to
produce any evidence except two rent
receipts for the months of December, 1993
and January 1994 that too when the
Respondent No. 1 in his objection petition
filed in the execution proceedings of the
eviction decree has himself admitted that
the there exists a dispute between him and
Respondent No. 2 and they had parted their
ways."
122 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Paragraphs-11, 14 and 16 of
Ashok Chintaman Juker & Ors vs.
Kishore Pandurang Mantri & Anr, AIR
2001 SC 2251 relevant in the context of
present case is reproduced herein below:-

"11. The question that arises for
consideration in such cases is whether the
tenancy is joint or separate. In the former
case notice on any one of the tenants is
valid and a suit impleading one of them as
a defendant is maintainable. A decree
passed in such a suit is binding on all the
tenants. Determination of the question
depends on the facts and circumstances of
the case. No inflexible rule or straight-
jacket formula can be laid down for the
purpose. Therefore, the case in hand is to
be decided in the facts and circumstances
thereof.

14. This Court in the case of H.C.
Pandey vs. G.C. Paul, AIR 1989 SC 1470
taking note of the settled position that on
the death of the original tenant, subject to
any provision to the contrary either
negativing or limiting the succession, the
tenancy rights devolve on the heirs of the
deceased tenant, held that it is a single
tenancy which devolves on the heirs. There
is no division of the premises or of the rent
payable thereafter and that is the position
as between the landlord and the heirs of the
deceased tenant. In other words, the heirs
succeed to the tenancy as joint tenants.
This Court further held that the respondent
acted on behalf of the tenants; he paid rent
on behalf of his father and he accepted
notice on behalf of all; in the circumstances
the notice served under Section 106 of the
Transfer of Property Act on the respondent
was sufficient and it was a valid notice.

16. In the case on hand, as noted
earlier, on the death of the original tenant
Chintaman the rent bills in respect of the
premises in question were issued in the
name of his elder son Kesrinath and on his
death the rent bills were issued in the name
of his widow Smt.Kishori Kesrinath Juker.
It is not the case of the appellant no.1 that
there was any division of the premises in
question or that rent was being paid to the
landlord separately by him. Indeed the
appellant no.1 took the plea that he was
paying the rent through Smt. Kishori
Kesrinath Juker. Thus the tenancy being
one, all the members of the family of the
original tenant residing with him at the
time of his death, succeeded to the tenancy
together.
In
the
circumstances
the
conclusion is inescapable that Smt. Kishori
Kesrinath Juker who was impleaded as a
tenant in the suit filed by the landlord
represented all the tenants and the decree
passed in the suit is binding on all the
members of the family covered by the
tenancy. In the circumstances the decree
passed in terms of the compromise entered
between the landlord and Smt. Kishori
Kesrinath Juker can neither be said to be
invalid nor inexecutable against any person
who claims to be a member of the family
residing with the original tenant, and
therefore, a tenant as defined in Section 5
(11) (c). The position that follows is that
the appellants have no right to resist on the
ground that the decree is not binding on
them. Further, the trial court and the
appellate court concurrently held that the
appellant no.1 has not been residing in the
premises since 1962 i.e. when his elder
brother Kesrinath was alive. Therefore,
when the suit was filed in the year 1992
there was no necessity for the landlord to
implead appellant no.1 or members of his
family in the suit since he (landlord) had no
cause of action for seeking a decree of
recovery of possession from them. In that
view of the matter the decree under
4 All. Uday Bhan Tiwari Vs. Pashupati Colonizers Pvt. Ltd. & Ors.
123
execution does not suffer from any
illegality or infirmity. Viewed from any
angle the appellants have no justification
on the facts as well as in law to resist
execution of the decree for possession of
the
premises
by
the
landlord.
The
Executing Court rightly rejected the
objection filed by the appellants against
execution of the decree and the appellate
court and the High Court rightly confirmed
the said order. This appeal being devoid of
merit is dismissed with costs which is
assessed at Rs.10,000/-."

14. The Apex Court in the case of
H.C. Pandey Vs. G.C. Paul, AIR 1989 SC
1470 held that heirs of original tenant
succeed to tenancy as joint tenants and not
as tenant in common. Paragraph-4 of the
judgement is reproduced herein below:-

"4. It is now well settled that on
the death of the original tenant, subject to
any provision to the contrary either
negativing or limiting the succession, the
tenancy rights devolve on the heirs of the
deceased tenant. The incidence of the
tenancy are the same as those enjoyed by
the original tenant. It is a single tenancy
which devolves on the heirs. There is no
division of the premises or of the rent
payable therefor. That is the position as
between the landlord and the heirs of the
deceased tenant. In other words, the heirs
succeed to the tenancy as joint tenants. In
the present case it appears that the
respondent acted on behalf of the ten- ants,
that he paid rent on behalf of all and he
accepted notice also on behalf of all. In the
circumstances, the notice served on the
respondent was sufficient. It seems to us
that the view taken in Ramesh Chand Bose
(supra) is erroneous where the High Court
lays down that the heirs of the deceased
tenant succeed as tenants in common. In
our opinion, the notice under S. 106 of the
Transfer of Property Act served by the
appellant on the respondent is a valid
notice and therefore the suit must succeed.
"

15. This Court also in the case of
Krishna Kityal (Smt.) (supra) has held
that on the death of tenant, his heirs
succeeds the tenancy right as joint tenancy.
Paragraph-7 of the judgement is reproduced
herein below:-

"7. Coming to the facts of the
present case, it is not in dispute that Sanjay
Kumar one of the sons of Late Manohar
Lal is carrying on the business from the
shop in question he admittedly has obtained
registration from the Trade Tax Department
for carrying on the business in the said
shop. It is also not in dispute that the
present application for impleadment was
filed on a day earlier when date of delivery
of judgment was fixed. The Supreme Court
in the case of Harish Tandon (Supra) has
held that on the death of tenant, the heirs
succeed the tenancy rights as joint tenants,
he represents the estate of the deceased as
heirs. 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."

16. In the case of Lalit Kumar (supra)
relied upon by counsel for the revisionapplicant, this Court has also noted the
proposition that after the death of tenant, his
heirs inherited the tenancy jointly and decree
passed against one or some of the tenant is
binding on non impleaded tenant also.
However, this Court in the said case
concurred with the argument of counsel for
124 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner that when a joint tenant applies
for impleadment, he cannot be non suited on
the aforesaid proposition of law by placing
reliance upon judgement of this Court in the
case of Gauri Shankar Gupta (supra). In
my opinion, the judgement of this Court in
the case of Lalit Kumar (supra) is not
applicable in the facts of the present case for
two reasons; firstly in the case in hand, the
impleadment application has been filed
maliciously to delay the disposal of the suit
inasmuch as the suit has been filed in the year
2010 and the impleadment application has
been filed in the year 2020 despite the fact
that the applicant has knowledge about the
pendency of the suit since 2011 as he had
filed application to recall the ex-parte order
on 9.2.2011. Secondly, the judgement of this
Court in Gauri Shankar Gupta (supra) was
considered by this Court in the case of
Krishna Kityal (Smt.) (supra) and this Court
placing reliance upon judgement of Harish
Tandon Vs. Additional District Magistrate
and others, 1995 (1) ARC 220 (SC) held
that on the death of a tenant the heirs
succeeded the tenancy rights as joint tenant,
and it rejected impleadment application.
Accordingly, this Court is bound by the law
propounded by this Court in latter judgement
Krishna Kityal (Smt.) (supra).

17.
Now
applying
the
aforesaid
principle in the case in hand, the revisionapplicant who is claiming to be the joint
tenant of the property being son of late Ram
Lakhan Tiwari, who according to the
revision-applicant was original tenant of the
premises in dispute, is neither necessary party
nor proper party.

18. It is also pertinent to mention that
the present application has been filed by the
revision-applicant only with a purpose to
delay the disposal of the suit inasmuch as
he had filed an application in the year 2011
for recall of the ex-parte order in which
specific case of the landlord-respondent
No. 1-plaintiff was that the revisionapplicant is neither in possession of the
premises in dispute nor has any concern
with the premises in dispute, yet he had
slept over the matter and did not file any
impleadment application immediately, and
after about 10 years, he filed application for
impleadment in the suit.

19. For the aforesaid reasons, the
present application under order 1 rule 10 of
C.P.C., has been filed mischieviously only
to delay the suit.

20. For the reasons given above, in the
opinion of the Court, the trial court has not
committed any jurisdictional error or any
material
irregularity
in
rejecting
the
application under order 1 rule 10 of C.P.C.
Accordingly, this Court is of the opinion
that the present revision lacks merit and is
dismissed with no order as to costs.

----------
(2021)04ILR A124
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2021

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Matter Under Article 227 No. 673 of 2021 (Civil)

Om Prakash Agarwal ...Petitioner
Versus
Lacchi Ram & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anupam Laloriya, Sri Pankaj Saksena

Counsel for the Respondents:
-----