JUDGMENT :

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 and Others.

(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 and Others.”

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 app