The petitioner has filed this civil revision petition challenging the fair and final order dated 12.7.2013 passed in I.A.No.472 of 2013 in O.S.No.366 of 2008 on the file of the learned Subordinate Judge, Thiruchengode.
2. The facts in a nutshell are as under: The respondents 1 and 2 have filed the suit in O.S.No.266 of 2008 on the file of the Subordinate Judge, Thiruchengode seeking a direction on the third respondent to divide the suit property by way of partition and to put respondents 1 and 2 in separate possession of their shares.
3. In the said suit, written statements and additional written statement were filed by respondents 3 and 4. The trial was conducted and both the plaintiff side witnesses and defendant side witnesses have been examined and the case was posted for arguments on 1.2.2012. At that stage, the petitioner herein filed I.A.No.472 of 2013 seeking to implead him as the third plaintiff in the suit. The said interlocutory application was resisted by the third respondent.
4. The Court below, by order dated 12.7.2013 passed in I.A.No.472 of 2013 in O.S.No.366 of 2008, dismissed the interlocutory application.
5. Assailing the said order, the present revision petition is filed.
6. The learned counsel for the petitioner vehemently contended that the Court below ought not to have dismissed the interlocutory application filed by the petitioner under Order XXII Rule 10 of the Civil Procedure Code, inasmuch as such impleadment is sought on the basis of a registered Will.
7. He further submitted that in the registered Will dated 22.2.2010 executed by the first respondent (since deceased) in favour of the petitioner, the only person who has to represent the first respondent is the petitioner herein and if the same is not allowed, much prejudice would be caused to the petitioner.
8. The learned counsel for the third respondent reiterated the reasons that weighed with the Court below in dismissing the interlocutory application and prayed for dismissal of the civil revision petition.
9. I heard Mr.R.Nalliyappan, learned counsel for the petitioner and Mr.E.P.Senniyangiri, learned counsel for the 3rd respondent and perused the documents available on record. No representation on behalf of the respondents 2 and 4.
10. It is beyond any cavil that the original plaintiffs, namely the respondents 1 and 2 herein, are grandmother and mother of the petitioner respectively. It is also not disputed that the first respondent, who is the grandmother of the petitioner, passed away on 4.3.2013 and before her death, the first respondent had executed a Will on 22.2.2010 allotting her lawful share in the suit property to him.
11. At this juncture, it is apposite to refer to Order XXII Rule 10 of the Civil Procedure Code, which is extracted below:
O.22, Rule 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 the 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).
12. A bare perusal of Order XXII Rule 10 of the Civil Procedure Code makes it clear that so long as no final decree has been passed, the assignee can carry on the suit and cannot in disregard thereof file a new suit for the same relief. While exercising the jurisdiction under this Rule, the Court must consider the prima facie equities among other things. Devolution of interest by death is governed by Order XXII, Rules 2 to 4. Order XXII Rule 10 applies to all other cases of devolution. Sec.146, C.P.C. governs the situation.
13. Thus, it is clear that Order XXII Rule 10 of the Civil Procedure Code is an enabling provision and it must be considered liberally so as to advance justice. This rule is based on the principle that the trial of a suit cannot be arrested merely by reason of devolution of interest of a party in the subject matter of the suit; that the person acquiring the interest may continue the suit with the leave of the Court. It is well settled that party assigning whole or his or her interest pendente lite cannot ask for judgment in respect thereof but his or her assignee can.
14. In the case on hand, the Will was executed after the institution of the suit. During the lifetime of the first respondent there was a transfer of the property, which is the subject matter of the suit, by way of a registered Will. In other words, it is a clear case of devolution of interest and the case falls under Order XXII Rule 10 of Civil Procedure Code.
15. In view of the fact that the petitioner had acquired interest over the suit property by way of the registered Will and that Order XXII Rule 10 of the Civil Procedure Code is an enabling provision and it must be construed liberally so as to advance justice, this Court to avoid multiplicity of litigation and to ensure that the petitioner upon whom the suit property is devolved is not driven from pillar to post to file another suit, this Court feels it just and proper to set aside the order of the trial court and allow this revision.
16. In the result, this civil revision petition is allowed and the order dated 12.07.2013 passed in I.A.No.472 of 2013 in O.S.No.366 of 2008 on the file of the learned Subordinate Judge, Thiruchengode, is set aside. The trial court is directed to take necessary steps to carry out the amendment of the cause title. The petitioner and respondents are directed to file their additional written statements, if any, within one month from the date of receipt of a copy of this order. The trial Court is directed to dispose of the suit on merits and in accordance with law within a period of three months from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is closed.
30.01.2017 Note:Issue order copy on 04.10.2018 vs Index : Yes To The Sub Judge, Thiruchengode.
M.V.MURALIDARAN, J.
vs C.R.P. (PD) No.3248 of 2013 and M.P.No.1 of 2013 30.01.2017