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TMI Blog2014 (11) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... eclaring sale-deed dated 13.5.1994 a nullity. Trial Court, however, declined to grant relief of permanent injunction holding that plaintiff has failed to prove her possession over property in dispute, and, on the contrary, property in dispute is in possession of defendants, therefore, injunction as sought, cannot be granted. 4. Respondents no. 3 and 4, aggrieved by judgment and decree dated 28.1.2009 insofar as it declared sale-deed dated 13.5.1994 a nullity, preferred Civil Appeal No. 6 of 2009 before District Judge, Saharanpur. During pendency of appeal, Zahira, plaintiff-respondent no. 1, executed sale-deed dated 25.11.2011 in favour of Smt. Sanjida, wife of Waheed, i.e., respondent no. 2. In its turn, Smt. Sanjida, wife of Waheed respondent no. 2, executed another sale-deed dated 27.1.2012 in favour of petitioner. It is also alleged that vendee Smt. Sanjida put petitioner in physical possession over suit property. 5. In the meantime, defendants no. 3 and 4, who were appellants in Civil Appeal No. 6 of 2009 filed an application dated 21.2.2012 stating that there is a compromise between defendants-appellants and plaintiff-respondent, therefore, appeal be decided in terms of com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred property pursuant to judgment which was already stayed. Lower Appellate Court observing that application moved by petitioner was not bona fide, and authorities relied were not applicable, rejected application. 10. In my view, apparently, it is not a case where Order 1 Rule 10 is applicable and further application under Order 1 Rule 10 was not maintainable. It is not a case where suit was instituted in the name of wrong plaintiff and also not a case, filed without impleading necessary and proper party, who should be allowed to be impleaded, if so found by Court concerned. In my view, it was a case in which Order XXII Rule 10 would have attracted, which reads as under: "10. 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, the 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)." 11. Therefore, instead of filing appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings. This is what was observed by Lord Kingsdown of Judicial Committee in Prannath Vs. Rookea Begum (1851) 7 M.I.A. 323. The Apex Court in Sri Saila Bala Dassi Vs. Smt. Nirmala Sundari Dassi and another, (1958) 1 SCR 1287, held, if a suit is pending when transfer in favour of a party was made, that would not affect the result when no application has been made to bring such transferee on record, in the original court, during pendency of suit. 16. In Shri Rikhu Dev, Chela Bawa Harjug Dass Vs. Som Dass (Deceased) through his Chela Shiam Das, (1976) 1 SCC 103, a three Judge Bench considered the scope and effect of Order XXII, Rule 10. A suit was filed by Mahant (the appellant before the Apex Court) on the allegation that Dera at Patiala of which he was Mahant had other branches, one at Landeke in Moga Tehsil and possession of that Dera and properties attached with, be restored to him. The defendant Som Dass contended that the said Dera at Landeke was an independent Dera and he was in possession of the properties thereof, being a lawfully appointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , by way of gift to his wife. The High Court, where the appeal was pending, observing that appeal has abated, dismissed the same. The Apex Court held that here is not a case where proceedings would stand abated and said: "In other words it is a case of devolution of interest and the case falls under Order XXII, Rule 10 C.P.C. and there will be no question of abatement. We, therefore, direct that the transferee be brought on the record." 19. In P.P.K. Gopalan Nambiar Vs. P.P.K. Balakrishna Nambiar, AIR 1995 SC 1852 the suit was decreed by trial court but in appeal, decree was partially modified excluding the property covered by a Will dated 1.11.1955 executed by one Lakshmi Amma, the mother of the first defendant in the suit. On second appeal, the High Court reversed the decree of first Appellate Court and confirmed trial court's judgment. Before Apex Court, the defendant in suit, who was appellant, contended that three of the parties i.e. respondents No. 2, 4 and 11 since have expired, their legal representatives were not substituted, the appeal stood abated. Rejecting this contention, the Court observed: "Admittedly, before their deaths, they sold their respective shares ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndency, then there may be preposterous results as such a party might not be knowing about the litigation and consequently not feasible for him to apply for leave and if a duty is cast upon him then in such an eventuality he would be bound by the decree even in cases of failure to apply for leave. As a rule of prudence, initial duty lies upon the plaintiff to apply for leave in case the factum of devolution was within his knowledge or with due diligence could have been known by him. The person upon whom the interest has devolved may also apply for such a leave so that his interest may be properly represented as the original party, if it ceased to have an interest in the subject matter of dispute by virtue of devolution of interest upon another person, may not take interest therein, in ordinary course, which is but natural, or by colluding with the other side. If the submission of Shri Mishra is accepted, a party upon whom interest has devolved, upon his failure to apply for leave, would be deprived from challenging correctness of the decree by filing a properly constituted suit on the ground that the original party having lost interest in the subject of dispute, did not properly pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought on record the lis pendens transferee remains bound by the decree." (emphasis added) 22. Similar issue also came up for consideration in Amit Kumar Shaw and Anr. Vs. Farida Khatoon and Anr., AIR 2005 SC 2209. The Court observed that power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property or not. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will include necessarily an enforceable legal right. 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 devolution. The question about existence and validity of 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. 23. Counsel for petitioner has placed reliance on the Apex Court's decision in A. Nawab John an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est of the deceased plaintiff or defendant devolves is not entitled to continue the suit or appeal as a matter of right. It is essential to obtain the leave of the Court. The granting of leave is within the discretion of the Court. The Court, however, is to exercise its discretion judicially and according to well established principles. Further, unlike Rules 3 and 4, no limitation is prescribed for presentation of an application under this rule and no penalty is laid down for failure to substitute the person on whom the interest of the deceased plaintiff or defendant has devolved. Therefore, the right to make an application under this rule is a right which accrues from day-to-day and can be made at any time during the pendency of a suit. There is no abatement under this rule." 26. The aforesaid decision on the question of limitation in respect to application under Order XXII, Rule 10 has been followed by a Division Bench of Rajasthan High Court in Chandra Bai Vs. Khandal Vipra Vidyalay Samiti and Ors., AIR 2008 Raj. 1. The Court said, when matter is subjudice, assignee can be impleaded at any stage and even at execution proceedings. Order XXII, Rule 10 C.P.C. therefore, is not app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e application under Order 1 Rule 10 CPC instead of Order 22 Rule 10 CPC. 31. The scope and ambit of the two provisions is quite different. It was always open to petitioner to opt as to in which capacity and in what manner, he intends his application to be considered by the Court. If he intended that he should be impleaded as a party to contest the suit under Order 1 Rule 10 CPC, it means that he is claiming his right of contest in his own capacity independently, without being governed by the stand taken by initial plaintiffs including the one who has transferred property in dispute to petitioner during pendency of proceedings. When the applicant has chosen a particular provision for consideration of his matter, it is not open to Court to treat such an application under any other provision, where scope and ambit is quite different. 32. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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