1. Heard Sri Amit Verma, learned counsel for petitioner; Sri Pradeep Kumar Srivastava, Advocate, for respondents; and, perused the record.
2. The facts giving rise to the present writ petition are as under.
3. One Zahira, respondent no. 1, instituted Original Suit No. 306 of 1994 impleading Tasadduq and Zakir Husain as defendants in the Court of Munsif Hawali, Saharanpur for cancellation of registered sale-deed dated 13.5.1994, which was executed by defendants in their favour representing plaintiff-respondent no. 1 as major though on the date of execution of sale-deed she was minor. The suit was contested by defendants, i.e., respondents no. 3 and 4 by filing their written statement. Trial Court, i.e., Civil Judge (Junior Division), Hawali, Saharanpur decreed the suit vide judgment and decree dated 28.1.2009 to the extent of declaring 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 compromise. Therein plaintiff-respondent admitted that she was major on the date of registration of sale-deed dated 13.5.1994 and, therefore, sale-deed is valid.
6. On the contrary, petitioner moved an application under Order 1 Rule 10 C.P.C. dated 21.2.2012 stating that he has purchased land from Smt. Sanjida and is in possession of property in dispute. Therefore, he is necessary party and should be impleaded as defendant no. 2 in the pending Appeal No. 6 of 2009.
7. The plaintiff-respondent no. 1, Smt. Zahira, had also challenged judgment and decree dated 28.1.2009 passed by Trial Court in Original Suit No. 306 of 1994 to the extent it declined 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-respondent no. 1.
9. Lower Appellate Court has rejected above application of petitioner by recording a finding that judgment of Trial Court was stayed by Lower Appellate Court. It is during continuance of interim order the disputed property was transferred by plaintiff-respondent no. 1 to Smt. Sanjida vide sale-deed dated 25.11.2011 and there is further transfer by Smt. Sanjida in favour of petitioner Mehboob which is nothing but an act on the part of plaintiff-respondent to complicate the matter. Since there was stay, hence she could not have transferred 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 application under Order 1 Rule 10 C.P.C., petitioner ought to have sought leave of Court for prosecuting the case by bringing on record third party, i.e. the petitioner, who has got the rights transferred from plaintiff-respondent for continuance of proceeding.
12. Order 22, Rule 10 C.P.C. contemplates continuation of suit where person against whom proceedings were initiated, by way of assignment, creation or devolution of interest, has given effect to a transfer in respect to the property, to someone else. For example, where suit is filed in respect to Company 'A' and during pendency thereof this Company 'A' is taken over 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 has intended that proceedings would continue by or against the original party, although he ceased to have any interest in the subject of dispute, in the event of failure to apply for leave, to continue by or against the person upon whom the interest has devolved, for bringing him on record.
15. It is also plain inference drawn from the aforesaid provision that the person who has acquired an interest by devolution, if obtains leave to carry on suit, the suit in his hands is not a new suit. A cause of action is not prolonged by mere transfer of title. It 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 Mahant. The suit was decreed by Trial Court but in appeal the Trial Court's judgment was reversed. The second appeal preferred before High Court and when the same was pending, defendant Som Dass died on 13.10.1970. No application to bring on record legal representatives of Som Dass was filed within the period of limitation. An application, filed subsequently after period of limitation, was rejected by High Court holding that appeal had abated and there was no ground for setting aside abatement. The Apex Court came to the conclusion that application for impleadment of Chela Shiam Dass as legal representative of defendant Som Dass 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 temple resigns his office or is removed from his office. In such a case, successor to the head of mutt or the manager of temple may be substituted as a party under this rule.
17. The word 'interest' in Order XXII, Rule 10 means interest in the property i.e. the subject matter of the suit. The "interest" is the interest of the person who was party to the suit.
18. In Ghafoor Ahmad Khan Vs. Bashir Ahmad Khan (Dead) by L.Rs., (1982) 3 SCC 486 during lifetime of sole respondent, there was a transfer of property, which was subject matter of appeal, 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 by registered sale deeds in favour of other respondents. So, by operation of Order XXII Rule 10 CPC, their respective interest devolved by transfer of the respondents who are already on record. Therefore, there is no need to bring the L.Rs. of the deceased on record or to transpose them as legal representatives." (emphasis added)
20. In Dhurandhar Prasad Singh Vs. Jai Prakash University, AIR 2001 SC 2552, the Court, construing scope and ambit of Order XXII, Rule 10 C.P.C., said, "it provides for cases of assignment, creation and devolution of interest during the pendency of a suit". Trial of a 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 may be continued by the person upon whom such an interest has devolved and this applies in a case where the interest of plaintiff has devolved. Likewise, in a case where interest of defendant has devolved, the suit may be continued against such a person upon whom interest has devolved, but in either eventuality, for continuance of the suit against the persons upon whom the interest has devolved during the pendency of the suit, leave of the court has to be obtained. If it is laid down that leave can be obtained by that person alone upon whom interest of party to the suit has devolved during its pendency, 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 prosecute or defend the litigation or, in doing so, colluded with the adversary. Any other party, in our view, may also seek leave as, for example, where plaintiff filed a suit for partition and during its pendency he gifted away his undivided interest in the Mitakshara Coparcenary in favour of the contesting defendant, in that event the contesting defendant upon whom the interest of the original plaintiff has devolved has no cause of action to prosecute the suit, but if there is any other co-sharer who is supporting the plaintiff, may have a cause of action to continue with the suit by getting 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 decree passed against judgment-debtor, though neither the defendant has chosen to bring transferee on record by apprising his opponent and the Court about the aforesaid transfer, nor, the transferee has chosen to come on record by taking recourse to Order XXII, Rule 10. The Court, further, said:
"In case of an assignment creation or devolution of any interest during the pendency of any suit to grant leave for the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a lis pendens transferee on record is not as of right but in the discretion of the Court. Though not 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 and others Vs. V.N. Subramaniyam (2012) 7 SCC 738. Therein also I find that Apex Court with reference to Order XXII Rule 10 has observed that the subsequent pendente lite purchaser can be allowed to be impleaded as party to prosecute the suit and placed reliance on its earlier decision in Amit Kumar Shaw Vs. Farida Khatoon 2005 (11) SCC 403. In para 16 of the judgement in Amit Kumar Shaw (supra), the Court said:
"16. .... Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make 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 case."
24. Referring to the aforesaid observations in Amit Kumar shaw (supra), the Court in A. Nawab John (supra) in para 22 said as under:
"22. The preponderance of opinion of this Court is that a pendente lite purchaser's application for impleadment should normally be allowed or "considered liberally"."
25. A question arose, whether period of limitation is attracted for filing an application under Order XXII, Rule 10. In Baijnath Ram and Ors. Vs. Tunkowati Kuer and Ors., AIR 1962 Patna 285, A Full Bench of Patna High Court said:
"Another thing to notice in connection with this rule is that a party on whom the interest 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 applicable for impleadment of legal heirs of parties to the suit but is confined for impleadment of person/persons who during pendency of suit have got transferred. In para 16 of the judgment, the Court said:
"...while deciding the application, the Court has to exercise the discretion judiciously and it should not result into miscarriage of justice. The assignee unless brought on record, cannot protect his interest, therefore, is required to be arrayed as party in the proceedings during the currency of suit or subsequent 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 another provision and, therefore, the Court below ought to have treated this application of petitioner filed under Order 1 Rule 10 C.P.C. as application under Order 22 Rule 10 CPC and ought to have passed appropriate order accordingly.
30. The submission refers to well accepted exposition of law that mere wrong mention of provision shall not deprive the Court's jurisdiction, if otherwise vested under any other provision, and merely for that reason, the application should not be rejected. But here, in the case in hand, this proposition has no application. It is not the case that there was wrong mention of provision but the petitioner with due legal advice chose to file 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 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.
33. 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.
34. In view of above, the order of Court below, impugned in this writ petition, cannot be faulted.
35. The writ petition lacks merit. Dismissed.
Dt. 12.11.2014 PS