9911796707
TMI Blog2014 (11) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. X X X X Extracts X X X X X X X X Extracts X X X X ..... ed relief of permanent injunction by recording a finding against her and in favour of defendants-respondents no. 3 and 4 that they were in possession of property in dispute. The said Civil Appeal was registered as Appeal No. 9 of 2009 (Zahira Vs. Tasadduq and others). Therein she moved an application for dismissing appeal as not pressed and Lower Appellate Court vide order dated 21.2.2012 dismissed the said appeal of plaintiff-respondent no. 1. 8. Giving details of aforesaid facts and also the factum that Waheed, i.e., husband of Smt. Sanjida, himself was doing pairavi of the case on behalf of plaintiff-respondent no. 1 and when plaintiff-respondent no. 1 proceeded to compromise the matter, he (petitioner) committed fraud with Smt. Zahira also and got a fraudulent sale-deed dated 25.11.2011 executed in favour of his wife Smt. Sanjida and, got re-transferred property to himself vide sale-deed dated 27.1.2012 though Smt. Zahira has no information of all these transactions and contention of petitioner that he is in possession of property in dispute is patently false, therefore he is neither necessary nor proper party to be impleaded. The application was opposed by plaintiff-responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er by a new Company 'B', the suit can continue by new Company 'B'. 13. Order 22 Rule 10 contemplates a situation arising in the cases of assignment, creation and devolution of interest during pendency of a suit other than those referred to earlier Rules. It is based on the principle that trial of a suit cannot be brought to an end merely on account of interest of a party, subject matter of a suit, is devolved upon another during its pendency. Such a suit may be continued with the leave of Court, by or against the person upon whom such interest has devolved. But, if no such step is taken, and transferee of interest is not brought on record and impleaded, that would not mean that suit cannot proceed. It may be continued with original party and the person upon whom interest has devolved, will be bound by and can have the benefit of decree, as the case may be, unless it is shown in a properly constituted proceeding that the original party being no longer interested in the proceeding did not vigorously prosecute, or colluded with the adversary, resulting in decision adverse to the party upon whom interest had devolved. 14. Under Order XXII Rule 10 C.P.C., Legislature h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not have been taken as an application under Order XXII, Rule 3 C.P.C. but it is an application under Order XXII, Rule 10. When Som Dass died, the interest which was subject-matter of suit, i.e. the property of Dera, devolved upon Shiam Dass as he was elected Mahant of Dera and therefore appeal could be continued under Order XXII, Rule 10 against the person upon whom the interest had devolved. The Court said that Order XXII, Rule 10 is based on the principle that trial of a suit cannot be brought to an end merely because interest of a party in a subject matter of suit has devolved upon another during pendency of suit. In fact such proceeding may be continued against the person acquiring interest, with the leave of the Court. When a suit is brought, by or against a person in a representative capacity, and there is a devolution of interest of such person, the rule that has to be applied is Order XXII, Rule 10 and not Rule 3 or 4, irrespective of fact whether devolution has takes place as a consequence of death or for any other reason. Order XXII, Rule 10, is not confined to devolution of interest due to death of a party but it also applies where the head of mutt or manager of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit cannot be brought to an end for the sole reason that interest of a party in the subject matter of suit has devolved upon another, during its pendency. Such a suit may be continued with the leave of Court, by or against person upon whom such interest has devolved. The Court also observed that if no such steps is taken, the suit may be continued with original party and person upon whom interest has devolved will be bound by decree, particularly, when such transferor had knowledge of proceedings and made no attempt to get himself impleaded in pending proceedings. The Limitation Act provides limitation in respect to applications under Order XXII, Rule 3 and 4 but it has not been shown to the Court that there is any provision providing limitation for impleadment of a transferor by way of assignment, creation or devolution of interest in subject matter of suit property, pendency thereof is governed by Order XXII, Rule 10. The relevant extract of judgment discussing Order XXII, Rule 10 C.P.C. is as under: "Plain language of Rule 10 referred to above does not suggest that leave can be sought by that person alone upon whom the interest has devolved. It simply says that the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng himself transposed to the category of plaintiff as it is well settled that in a partition suit every defendant is plaintiff, provided he has cause of action for seeking partition. Thus, we do not find any substance in this submission of learned counsel appearing on behalf of the appellant and hold that prayer for leave can be made not only by the person upon whom interest has devolved, but also by the plaintiff or any other party or person interested." (emphasis added) 21. In Rajkumar Vs. Sardari Lal and Ors., 2004 (1) Sup 532 the Apex court following and reiterating its view taken in Smt. Saila Bala Dassi (supra) said that doctrine of lis pendens expressed in the maxim 'ul lite pendente nihil innovetur' (during a litigation nothing new should be introduced) has been statutorily incorporated in Section 52 of Transfer of the Property Act, 1882 (hereinafter referred to as "Act, 1882"). A defendant cannot by alternating property during pendency of litigation, venture into depriving successful plaintiff of the fruits of decree. The transferee pendente lite is treated in the eye of law, as a representative in interest of the judgment-debtor, and is bound by de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings which includes even execution of the proceedings. It is settled law that an assignee on being arrayed as party, steps into the shoes of the transferor to take part in the proceedings with the leave of the Court ceased of the lis." 27. Thus, since it was Order XXII Rule 10, which was applicable in the case in hand, the application under Order 1 Rule 10, in my view, has rightly been rejected in view of Full Bench judgment in (Smt.) Mahendra Kaur Vs. Hafiz Khalil, 1987 RD 392 FB where a question was considered whether Order 1 Rule 10 would apply in a matter governed by Order 22. The Court said, when a specific procedure has been prescribed in Order XXII, Order 1, Rule 10 would have no application. 28. 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. 29. The counsel for the petitioner at the last contended that mere mention of a wrong provision should not justify rejection of an application if jurisdiction otherwise is vested in Court in a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
