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Bakhtawar Singh and ors. Vs. Nirmal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 296 of 1972
Judge
Reported inAIR1973P& H448
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 27 - Order 22, Rule 10 and 11
AppellantBakhtawar Singh and ors.
RespondentNirmal Singh and ors.
Cases ReferredP. Veeraraghava Reddi v. C. Subba Reddi
Excerpt:
.....on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept..........was not ancestral. the appeal against this decree was also dismissed on 19th october, 1960, by the learned district judge, patiala. it might be stated that during the pendency of the appeal before the lower appellate court, on 14th october, 1960, an application under order 41, rule 27, code of civil procedure, was filed by the plaintiffs, but the same was also rejected by the learned judge.3. a second appeal was then taken to this court, which was allowed on 24th february, 1971, and it was held that the learned district judge was wrong in rejecting the application under order 41, rule 27, code of civil procedure, filed by the plaintiffs before him. the said application was, consequently, granted and the case remanded to the district judge for re-decision after allowing the parties an.....
Judgment:
ORDER

1. On 16th July, 1966, Amar Singh sold the agricultural land in dispute, situate in village Dadrala, District Patiala, to Mehar Singh, who, subsequently, sold the same to some other persons, that sale led to a suit of pre-emption by the sons of Mehar Singh, namely, Satpal Singh and Bhag Singh. They succeeded and thus became the owners of the land in question. Thereafter Nirmal Singh and others, sons of Amar Singh, brought a usual declaratory suit under custom challenging the sale made by their father Amar Singh in favour of Mehar Singh.

2. The suit was contested and ultimately dismissed on 2nd July, 1960 on the finding that the land was not ancestral. The appeal against this decree was also dismissed on 19th October, 1960, by the learned District Judge, Patiala. It might be stated that during the pendency of the appeal before the lower appellate Court, on 14th October, 1960, an application under Order 41, Rule 27, Code of Civil Procedure, was filed by the plaintiffs, but the same was also rejected by the learned Judge.

3. A second appeal was then taken to this Court, which was allowed on 24th February, 1971, and it was held that the learned District Judge was wrong in rejecting the application under Order 41, Rule 27, Code of Civil Procedure, filed by the plaintiffs before him. The said application was, consequently, granted and the case remanded to the District Judge for re-decision after allowing the parties an opportunity to produce additional evidence.

4. During the pendency of the appeal in this Court, by means of two deeds dated 18th September, 1969, and 5th November, 1969, Satpal Singh and Bhag Singh who were contesting the declaratory suit, sold the land in question to Bakhtawar Singh, Joginder Singh and Uttam Singh. When on remand the case went to the learned Additional District Judge, an application was made on 26th April, 1971, by the transferees, namely, Bakhtawar Singh and others, that they be impleaded in the result of the appeal and would be bound by the decree passed by the learned Additional District Judge. This application was dismissed by the learned Judge on 5th February, 1972. Against this decision, the present revision petition has been filed by the transferees, namely, Bakhtawar Singh and others.

5. After hearing the counsel for the parties, I am of the view that this petition must be accepted. It is common ground that the defendants in the suit had sold the property in dispute to the petitioners during the pendency of the litigation. By virtue of the provisions of Order 22, Rule 10, Code of Civil Procedure, the proceedings in the suit, by the leave of the Court, can be continued by the persons, on whom the interest either of the plaintiff or the defendant devolves. Therefore, under this provision, the petitioners could defend the suit. The learned Judge rejected their application, which they made under Order 22, Rules 10 and 11 of the Code of Civil Procedure, on two grounds. Firstly, it was said that the principle of lis pendens would apply and the petitioners would be bound by the result of the litigation that was already going on. In the second place, it was observed that if the petitioners were allowed to be added as parties, then further complications would arise, because 'they might raise some other pleas.'

6. As regards the first ground, it is quite true that the principle of lis pendens would apply and the petitioners would be bound by the result of the litigation. It is precisely for that very reason that, in my view, the application filed by them should have been granted. If they have to suffer the consequences of the litigation that was going on, chance of defending the suit, which had been filed against their transferors. The provisions of O. 22, R. 10 do not, however, compel an assignee to make an application in that behalf, but if he chooses to do so, the said application should ordinarily be granted, unless there are some exceptional grounds for rejecting it and such grounds, in my view, do not exist in the instant case.

7. It was held by a Division Bench, consisting of Harries, C. J. and Abdur Rahman, J. of the Lahore High Court in Lakshmi Narain v. Babu, AIR 1946 Lah 33, that the provisions contained in Rules 10 and 11 of Order 22, Civil P. C., did not make it incumbent upon an assignee to make an application during the pendency of the suit or appeal. Those provisions were of an enabling character and entitled to assignee to do so if he so desired. He might not, however, choose to apply if he found that his interests were being well looked after by his assignor. So long as he was of that view, it was not necessary for him to make an application for being brought on the record. It was further held in this very ruling that the Appellate Court had jurisdiction to implead an assignee as a party to the appeal, even when the assignment was made in his favour during the pendency of the suit.

8. Another Bench of this Court in Liaq Ram v. Mithan Lal, (1959) 61 Pun LR 8, had observed that the provisions of Order 22, Rule 10, Code of Civil Procedure, did not compel the assignee or party to a suit or appeal to make an application during the pendency thereof. The provision was merely of enabling character. If no application was made, then the suit or appeal would be decided between the parties on the record, but the decision would bind the assignee on whom interest in the subject-matter in the litigation had devolved during the pendency of the suit. It could not be gainsaid that an assignee so circumstanced should promptly take advantage of this statutory provisions but if he did not do so, then he did so on his own peril and at his own risk.

9. Under these circumstances, the learned Judge was wrong in holding that since the principle of lis pendens applied, therefore, the petitioners had no right to be impleaded as respondents before him.

10. Equally faulty is the other reason given by the learned Judge for rejecting this application. No complications, as envisaged by the learned Judge, are going to arise, if the petitioners are impleaded as parties, because they would not be allowed to raise defences, which were not open to their transferors. Besides they would be bound by all the orders passed up-to-date. A special Bench of three Judges in P. Veeraraghava Reddi v. C. Subba Reddi, AIR 1920 Mad 391, observed that under Order 22, Rules 10 and 11, a transferee pendente lite was entitled to come on record and to conduct all proceedings from the date he was added as a party, though he was bound by all orders passed up to that date, and could not raise defences not open to his transferor.

11. It was contended by the learned counsel for the respondents that the petitioners had filed this application at a belated stage.

Be that as it may, but we find in the instant case, no proceedings had so far been taken after the case was remanded by this Court to the learned Additional District Judge for redecision. As soon as the case was received by the learned Judge on remand, the petitioners made the said application. The respondents did not suffer in any way on account of this alleged delay on the part of the petitioners in making this application.

12. In view of what I have said above, this petition succeeds and the impugned order is quashed. There will, however, be no order as to costs. Parties have been directed to appear before the learned Additional District Judge on 15th January, 1973, for further proceedings in the case.

13. Revision allowed.


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