WP. 2286-05 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 2286 OF 2005 Gopikishan R. Garg & Anr. ...Petitioners Vs. Ramakant B. Sharma & Ors. ...Respondents *** Mr. R. A. Thorat & P. J. Thorat, for the Petitioners. *** CORAM: V. M. KANADE J. DATE : APRIL 18, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the petitioners. None appears on behalf of the respondents, though served. The petitioners are aggrieved by an order passed by the trial Court in the Misc. Notice No. 233 of 1996, taken out by them, for setting aside order of dismissal, dated 11-6-1996, which order was confirmed by the Division Bench of the Small Causes Court in Appeal, vide the judgment and order dated 22-9-2004. 2. The brief facts are as under- . A suit was filed by the original plaintiff against the WP. 2286-05 - 2 - respondent under Section 41 of the Preliminary Small Causes Court Acts. Said suit was dismissed for default on 11-6-1996. On the very same day, an application was made for restoration of the suit. However, it was rejected on the ground that stamped Vakalatnama had not been filed by the advocate. Within three days thereafter, Misc. Notice No. 233 of 1996 was filed by the original plaintiffs for recalling order dated 11-6-1996 and for restoration of the suit. This Notice, however, was dismissed for default. The present petitioners purchased the suit property by a registered deed of conveyance dated 25-3-1998 from the original plaintiff. Thereafter they filed Misc. Notice 16 of 2001 for condonation of delay caused in filing the application and for restoration of Misc. Notice No. 233 of 1996. By a judgment & order dated 30-10-2001 Misc. Notice No. 16 of 2001 was made absolute and delay was condoned and Misc. Notice No. 233 of 1996 was restored. The petitioners, thereafter filed an application for joining them as plaintiffs and for consequential amendment in the Misc. Notice No. 233 of 1996. This application was also allowed and on 9-7-2002 amendment was carried out in Misc. Notice No. 233 of 1996. A reply was filed by defendant No.2 in which it was alleged that the actionable claim was not assigned to the present WP. 2286-05 - 3 - petitioners as per the Deed of Conveyance. 3. By a judgment and order dated 12-11-2002 the trial Court dismissed Misc. Application No. 233 of 1996, holding that since actionable claim was not assigned, the application was not maintainable. Against the said judgment and order, an appeal was filed before the Appellate Bench of the Small Causes Court. The Appellate Court by an order dated 22-9-2004 dismissed the appeal. The Appellate Court held that the cause of action came to an end on the dismissal of the suit. Being aggrieved by the aforesaid two orders passed by the lower Courts, the petitioner has filed present petition under Art. 227 of the Constitution of India. It is submitted that by virtue of provisions of Section 109 of the Transfer of Property Act, the petitioners have stepped into the shoes of the original plaintiff and it was not necessary for the original plaintiff to assign the actionable claim. There is some substance in the submissions made by the learned counsel appearing on behalf of the petitioner. Section 109 of the Transfer of Property Act reads as under- “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 WP. 2286-05 - 4 - 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 possession of the property leased.” 4. Perusal of the said provision clearly reveals that by virtue of sale-deed, purchasing the property, the petitioners stepped into the shoes of the original lessor and was entitled to pursue the suit. For that purpose, it was not necessary to assign an actionable claim in the Conveyance Deed. Both the lower Courts have, therefore, committed an error of law which is apparent on the face of record and therefore, the WP. 2286-05 - 5 - said orders are liable to be set aside. Misc. Notice No. 233 of 1996, taken out in L.E. & C. Suit No. 73/95 of 1981 is allowed. Hearing of the suit is expedited. The trial Court may decide the dispute as expeditiously as possible and in any case within a period of one year. [ V. M. KANADE J.]