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Pushpa Kumari and ors. Vs. Dewan Chand Trust and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 47 of 1979
Judge
Reported inAIR1983Delhi91; 22(1982)DLT184; 1982(3)DRJ324
ActsCode of Civil Procedure (CPC), 1908 - Order 22, Rule 10
AppellantPushpa Kumari and ors.
RespondentDewan Chand Trust and ors.
Advocates: B.J. Nayyar and; P.D. Bhargava, Advs
Cases ReferredChela Bawa Hurjug Dass v. Som Dass
Excerpt:
code of civil procedure - order 22, rule 10 ; right to make an application under rule 10 of order 22 of the code arises when there is appointment of successor of the representative who filed the suit newly appointed trustees may make an application as and when they consider fit. there is no period of limitation prescribed for an application under order 22 rule 10 of the code. - - (2) the attachment of a decree pending an appeal there from shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1). (4) it is well known that when a suit is brought by or .against a person in a representative capacity and there is devolution 'of interest of the representative, the rule that has to be applied is rule 10 of order 22 of the code......' of interest of the representative, the rule that has to be applied is rule 10 of order 22 of the code. rule 3 or 4 of order 22 of the code applies where the plaintiff or defendant who had filed or defended the suit in his personal capacity dies.the devolution under rule 10 may take place on account of death, resignation or or for any other reason. in such a case the successor of the representative who filed the suit is the person upon interest devolves and he is entitled to be brought on record. the devolution in the subject matter takes place when a successor is appointed. as the suit was filed in a representative capacity by the trustees, there is no question of application of rule 3 of order 22 of the code. it is only rule 19 of order 22 of the code which is applicable. right to.....
Judgment:

Sultan Singh, J.

(1) This appeal by the defendants challenges the judgment and order dated 30-1 -1978 of the Commercial Sub-Judge, Delhi allowing the application of the respondents-plaintiffs under Order 22 Rule 10 read with Order I Rule , of the Code of Civil Procedure (hereinafter referred to as 'the Code').

(2) Briefly the facts arc L.Dewen Chand; Trust plaintiff-respondent No.1 and its trustees respondents No. 2 to 6 filed a suit in 1967 for possession against Pishori Lal, predecessor of the appellants with respect to Quarter Nos.3 and 4 of 30, Ferozeshah Road, New Delhi. On 31-12-1977 an application under Order 22 Rule 10 read with Order I Rule 10 of the Code was filed by the plaintiffs and. the newly appointed trustees of L.Dewan Chand Trust alleging that out of five trustees, Mr Ram Lubhaya and Smt. Prakash Wati, respondents No. 4 and 5 have died, that the remaining trustees i.e. respondents No. 2,3 and 6 appointed Mr. K..C. Khanna, Prof Veda Vyas,Dr. G.L. Datta. Mr. Naunit Lal Advocate and Mr. Des Raj Mehta as other trustees of the plaintiff Trust, that the new trustees were desirous of becoming co-plaintiffs and to continue the suit against the defendants. The appellants-defendants resisted the application on the ground that the same was belated as Smt. Prakash Wati died in 1976 and Mr. Ram Lubhaya had died earlier and that the suit had abated. The plaintiffs and other trustees in their rejoinder stated that Mr. Ram Lubhaya trustee died on 7-10-1968, that Smt. Prakash Wati trustee died on 24-8-1976, that Mr. K.C. Khanna was appointed trustee on 24-7-1975, Prof. Veda Vyas and Dr. G.L. Datta were appointed trustees on 16-8-1976, Mr. Naunit Lal Advocate was appointed trustees on 3-9-1976 and Mr. Des Raj Mehta was appointed trustee on 18-10-1976. The trial Court rejected the objections of the defendants and allowed the application impleading the new trustees.

(3) The suit for possession was filed by the Trustees through its trustees. The trustees who are co-plaintiffs are representatives of the Trust. In other words, plaintiffs filed the suit in their representative capacity of the Trust and not' in personal capacity. Order 22 Rule 10 of the code reads as under.

'10(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 there from shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).

(4) It is well known that when a suit is brought by or .against a person in a representative capacity and there is devolution ' of interest of the representative, the rule that has to be applied is Rule 10 of Order 22 of the Code. Rule 3 or 4 of Order 22 of the Code applies where the plaintiff or defendant who had filed or defended the suit in his personal capacity dies.The devolution under Rule 10 may take place on account of death, resignation or or for any other reason. In such a case the successor of the representative who filed the suit is the person upon interest devolves and he is entitled to be brought on record. The devolution in the subject matter takes place when a successor is appointed. As the suit was filed in a representative capacity by the trustees, there is no question of application of Rule 3 of Order 22 of the Code. It is only Rule 19 of Order 22 of the Code which is applicable. Right to make an application under Rule 10 of Order 22 of the Code arises when there is appointment of successor of the representative who filed the suit. Although Mr. Ram Lubhaya trustee died on 7 10.1968 but no trustee was appointed up to 24.7.1975. The trust-deed dated 7.6.1930 pertaining to the plaintiff Trust confers a power on the remaining trustees to appoins other trustees in case of death of any of the trustees. The first appointment of the trustee after death of the two trustees during pendency was made on 24.7.1975 and the last appointment was made on 8.10.1976. The application for impleading newly appointed trustees was filed on 31.12.77. The learned counsel for the appellants submits' that it is a belated application. I do not agree. The newly appointed trustees may make an application as and when they consider fit. There is no period of limitation Prescribed for an application under Order 22 Rule 10 of the Code.'

(5) The learned counsel for the appellants refers to Devisahai Premraj Mahajan Govindrao v. Balwantrao and others, : AIR1965MP275 wherein it has been observed that if a party is guilty of unreasonable delay and waits and watches the proceedings without making an attempt to be imp leaded, and later on files an application at a very late stage, unless he explains the delay or shows some justifiable reason for having remained silent, his prayer to be imp leaded at a late stage can not be allowed. There is no limitation for making an application under Order 22 Rule 10 of the Code. In the said judgment however after taking into consideration the facts of that case, the application was allowed. The judgment thereforee, does not help the appellants. The learned counsel then refers to Harihar Prasad v. Gendi Lal and another, Air 1918 Pat 606, wherein it has been held that Court has discretion to add- party and deliberate delay is a ground for rejecting the application for addition of party. There is on question of deliberate delay in filing the present application by the newly appointed trustees. As there is no limitation prescribed for filing such an application, it is the discretion of the newly appointed trustees to approach the Court as and when 'they desire. It is not a case of delay. In Rikhu Dev, Chela Bawa Hurjug Dass v. Som Dass (Deceased) the ough his Chela Shiama Dass, : [1976]1SCR487 ; it has been observed that the word 'interest' in Rule 10 means interest in the properly i.e.. the subject matter of the suit and the interest is the interest of the person who was the party to the suit. It has been further observed that devolution of the interest in the subject matter of the suit takes place when the successor is elected after the death of the original party and that a succeeding trustee of a trustee who filed a suit and thereafter died during its pendency was not legal representtive of the processor in office. Further it has been observed that where some trustees die or retire during the pendency of a suit and new persons are elected to fill their place, it is a case of devolution of interest during the pendency of a suit and the elected persons can be added as parties under Order 22 Rule 10 of the Code notwithstanding the period of limitation for impleading them had expired In Roshan Lal Kunja Mal and others v. Kapur Chand and others. , the Division Bench has observed that in a representative suit bytrustees if some of the trustees die during pendehcy of a suit and new trustees arc appointed they are not representatives of these trustees within the meaning of Order 22 Rule 3 of the Code but the p,ew trustees are added as parties under Order 22 Rule 10 of the Code notwithstanding the question of limitation. Thus I find there is no infirmity in the judgment and order of the trial Court. The suit was filed in 1967 and the defendants with a view to delay the disposal of the suit for possession raised untenable picas. There is no merit in the appeal. The same is dismissed with costs. Counsel fee Rs. 300.00 . Parties are directed to appear before the trial Court on 20th May, 1982.


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