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Phul Chand and ors. Vs. Khwaja Tahir Husain - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All442
AppellantPhul Chand and ors.
RespondentKhwaja Tahir Husain
Excerpt:
- - 50 but failed to deposit half the costs incurred by phul chand plaintiff by 12th april 1933. the court then dismissed the application of phul chand and after recording evidence passed a decree in the plaintiff's favour on the same date, viz. the contention of the learned counsel for phul chand respondent is well founded and ought to prevail.iqbal ahmad, j.1. this is an application by one phul chand for being arrayed as respondent in first appeal no. 249 of 1933. the appeal arises out of a suit for sale on a mortgage executed in 1926 by tahir husain, appellant, in favour of one chharang ram. chharang ram died leaving two sons, phul chand and hansraj. phul chand, the applicant before us, is a person other than phul chand son of chharang ram.2. phul chand, son of chharang ram filed the suit giving rise to the present appeal and he impleaded tahir husain and his brother hansraj as defendants to the suit. he alleged in the plaint that he and hansraj were entitled to the mortgage debt in equal shares and, that hansraj was being impleaded as a pro forma defendant.3. during the pendency of the suit in the court below, phul chand,.....
Judgment:

Iqbal Ahmad, J.

1. This is an application by one Phul Chand for being arrayed as respondent in first appeal No. 249 of 1933. The appeal arises out of a suit for sale on a mortgage executed in 1926 by Tahir Husain, appellant, in favour of one Chharang Ram. Chharang Ram died leaving two sons, Phul Chand and Hansraj. Phul Chand, the applicant before us, is a person other than Phul Chand son of Chharang Ram.

2. Phul Chand, son of Chharang Ram filed the suit giving rise to the present appeal and he impleaded Tahir Husain and his brother Hansraj as defendants to the suit. He alleged in the plaint that he and Hansraj were entitled to the mortgage debt in equal shares and, that Hansraj was being impleaded as a pro forma defendant.

3. During the pendency of the suit in the Court below, Phul Chand, applicant purchased the rights and interest of Hansraj in the mortgage deed in suit and filed an application in the Court below for being added as a defendant to the suit. On 26th February 1930, the Court ordered that the application be granted on payment of Rs. 50 by Phul Chand applicant to Phul Chand plaintiff on account of the costs of the day. By a subsequent order on the same date, the Court further ordered that Phul Chand be made a defendant to the suit on condition of his paying half of the total costs incurred by Phul Chand plaintiff in filing the suit. The Court fixed 12th April 1933 for the payment of half the costs.

4. Phul Chand, applicant, deposited the sum of Rs. 50 but failed to deposit half the costs incurred by Phul Chand plaintiff by 12th April 1933. The Court then dismissed the application of Phul Chand and after recording evidence passed a decree in the plaintiff's favour on the same date, viz., 12th April 1933. Tahir Husain has come up in appeal to this Court and has impleaded Phul Chand and Hansraj, the sons of Chharang Ram as respondents to the appeal. Phul Chand applicant, has, as already observed, filed an application in the appeal to be made a respondent in the appeal.

5. The learned Counsel for Phul Chand plaintiff-respondent opposes the application on the ground that in accordance with the provisions of Rule 10, Order 22, Civil P.C., the application cannot be entertained by this Court, as the assignment in favour of Phul Chand, applicant, by Hansraj was made during the pendency of the suit in the Court below and prior to the filing of the appeal, in this Court. It is further urged by him that to grant the application of Phul Chand applicant, would be in substance to revise the order passed by the Court below rejecting his application, though no appropiate steps to have that order set aside were taken by Phul Chand, applicant. In our judgment; the contention of the learned Counsel for Phul Chand respondent is well founded and ought to prevail. It is provided by Rule 10 that in cases of 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. By Rule 11 of Order 22 it is provided that in the application of Order 22 to appeals, so far as may be, the word 'plaintiff' shall be held to include an appellant, the word 'defendant' respondent, and the word 'suit' an appeal. If we substitute the word 'appeal' for the word 'suit' in Rule 10, the rule runs thus:

In other cases of assignment, creation or devolution of any interest during the pendency of an appeal, the appeal may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

6. In the case before us the assignment in favour of the applicant was during the pendency of the suit in the Court below and not during the pendency of the appeal in this Court. As the assignment in favour of the applicant was not; during the pendency of the appeal we have no jurisdiction under Rule 10 to implead the applicant as a party to the appeal.

7. It is however argued by the learned Counsel for the applicant that as a mortgage suit remains pending till the passing of the final decree in the suit, the pendency of the appeal must be deemed to be tantamount to the pendency of the suit, and as such it is contended by him that we have jurisdiction under Rule 10 to implead the applicant as a respondent to the appeal. The obvious answer to this contention is that the word 'suit' in Rule 10 has been used in contradistinction to the word 'appeal'. That this is so, is demonstrated by the provisions of Rule 11 that the words 'appeal' shall, so far as may be, be substituted for the word 'suit' in the application of the provisions of Order 22 to appeals. If the legislature had intended that the word 'suit' in Order 22 should be deemed to in. elude an appeal, it would have been wholly superfluous to enact the provisions of Rule 11, Order 22. The appeal before us is not a continuance of the suit filed in the Court below, but is a proceeding taken by the party aggrieved by the decree passed in she suit by the Court below with a view to get rid of that decree.

8. Moreover it cannot be disputed that the Court below had jurisdiction to deal with the application that was filed by the applicant to be made a defendant in the suit. The propriety of the order of the Court below directing that the application be granted conditional on the payment by the applicant of half of the costs incurred by Phul Chand plaintiff also cannot be questioned. To accede to the application of the applicant would be to set aside the order of the Court below rejecting the application of the applicant in consequence of the non-compliance by him of the direction to pay the costs, and this obviously would be unjust.

9. The learned Counsel for the applicant further contended that the application should be treated as an application under Section 151 of the Code and that we should, in exercise of our inherent jurisdiction, order the applicant to be made a respondent in the appeal. There are two answers to this contention. In the first place it is not permissible to invoke the inherent jurisdiction of the Court as defined by Section 151, in cases where the applicant has his remedy provided elsewhere in the Code and has neglected to avail himself of it. In the second place the inherent jurisdiction vested in Courts is to be exercised only to further the ends of justice and not to create complications in a cause by introducing matters, the adjudication of which may be impossible without reception of additional evidence. In the case before us it is alleged by Phul Chand, plaintiff, that he holds a charge over the half share of the mortgage debt due to Hansraj from Tahir Husain and, that in a suit filed by Hansraj against Phul Chand plaintiff it has been decided that he is entitled to realise the mortgage debt due to Hansraj in satisfaction of his claim on the charge created by Hansraj in his favour. The questions whether or not Phul Chand applicant is bound by that decision and, whether or not he is entitled to realise half of the mortgage debt due to Hansraj from Tahir Husain, are questions that are not free from difficulty and cannot, in that absence of adequate materials, be adjudicated in the present appeal. The rights of Phul Chand plaintiff and Phul Chand applicant inter se can appropriately be decided in separate proceedings, Ibis not permissible therefore in support of the present application to appeal to the inherent jurisdiction of this Court as defined by Section 151 of the Coda.

10. For the reasons given above we dismiss this application with costs.


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