2014 (11) TMI 1127 - HC - Indian Laws

Maintainability of Application under Order XXII Rule 10 C.P.C. - Held that - In the present case the plaintiff-respondent admittedly has transferred his rights during the pendency of appeal. Therefore it was always open to subsequent transferee to seek leave of the Court to prosecute the matter by moving an application under Order XXII Rule 10 C.P.C. The petitioner has not only filed application under Order 1 Rule 10 but contested it and it is not the case where he ever took the stand that provision was wrongly mentioned by petitioner or his counsel. No such case was pleaded either before the Court below or even before this Court. Under Order 22 Rule 10 CPC if the petitioner would have filed application the same was liable to be considered by Court in order to grant leave in its discretion to petitioner being subsequent transferee lis pendens to continue proceedings from the stage he has joined in place of original party who has transferred property to him. In that view of the matter the petitioner would have been bound by stand taken by transferor/original party. Therefore the proposition as above in my view has no application. Be that as it may the discussion made above makes it very clear that petitioner is not without any remedy but what he has been pursuing uptill now was not in accordance with law. It is always open to petitioner to seek leave of the Court for prosecuting the case by submitting an application under Order 22 Rule 10 CPC which would then be considered by Court concerned in the light of observations made above and in accordance with law but it cannot be doubted that his application under Order 1 Rule 10 CPC was clearly impermissible and has rightly been rejected by the Court below.

Summary

Issues Involved:
1. Validity of the sale-deed dated 13.05.1994.
2. Possession of the disputed property.
3. Legitimacy of the compromise during the pendency of the appeal.
4. Application of Order 1 Rule 10 CPC.
5. Application of Order XXII Rule 10 CPC.
6. Procedural correctness in impleading parties.

Detailed Analysis:

1. Validity of the Sale-Deed Dated 13.05.1994:
The respondent no. 1, Zahira, filed Original Suit No. 306 of 1994 to cancel the registered sale-deed dated 13.05.1994, claiming she was a minor at the time of its execution. The Trial Court decreed the suit, declaring the sale-deed a nullity but declined the relief of permanent injunction due to lack of possession by the plaintiff.

2. Possession of the Disputed Property:
The Trial Court found that the plaintiff failed to prove her possession over the disputed property, which was instead in the possession of the defendants. Consequently, the request for a permanent injunction was denied.

3. Legitimacy of the Compromise During Pendency of the Appeal:
During the appeal (Civil Appeal No. 6 of 2009), Zahira executed a sale-deed in favor of Smt. Sanjida, who then sold the property to the petitioner. The defendants claimed a compromise with Zahira, who admitted she was a major at the time of the original sale-deed, thus validating it. The petitioner opposed this, alleging fraud and lack of possession by Zahira.

4. Application of Order 1 Rule 10 CPC:
The petitioner filed an application under Order 1 Rule 10 CPC to be impleaded as a necessary party, claiming possession of the property. The Lower Appellate Court rejected this application, noting that the transfer of property during the stay of the Trial Court's judgment was an attempt to complicate matters and was not bona fide.

5. Application of Order XXII Rule 10 CPC:
The Court emphasized that the correct provision for the petitioner's situation was Order XXII Rule 10 CPC, which deals with the continuation of suits in cases of assignment, creation, or devolution of interest during the pendency of a suit. The petitioner should have sought leave of the Court to continue the proceedings as a transferee of interest.

6. Procedural Correctness in Impleading Parties:
The Court discussed the principles underlying Order XXII Rule 10, noting that a suit can continue against the original party even if the interest has devolved upon another, provided the transferee seeks leave of the Court. The Court cited various precedents to support this interpretation, emphasizing that the transferee must apply for leave to be impleaded and continue the suit.

Conclusion:
The petitioner's application under Order 1 Rule 10 CPC was rightly rejected as it was not applicable. The petitioner should have filed an application under Order XXII Rule 10 CPC to seek leave to continue the suit as a transferee of interest. The Court dismissed the writ petition, affirming the procedural correctness of the Lower Appellate Court's decision.