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Shakti Chand Vs. Chamaru and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 9 of 1975
Judge
Reported inAIR1985HP95
ActsCode of Civil Procedure (CPC) , 1908 - Section 96 - Order 22, Rules 10 and 11
AppellantShakti Chand
RespondentChamaru and ors.
Appellant Advocate P. Malhotra and; Shyama Vasudeva, Advs.
Respondent Advocate O.P. Sharma, Adv.
DispositionAppeal dismissed
Cases ReferredLiaq Ram v. Mithan Lal
Excerpt:
- .....disposed of and that for want of such hearing he had been gravely prejudiced. the learned single judge observed in the judgment that it was open to the appellant or respondents in appeal to apply under order 22 rule 10, c. p. c. for bringing on the record the transferee of a party to the appeal if during the pendency of that appeal the properly in dispute had been sold to such transferee. it was further observed that no such application was made during the pendency of the appeal. the learned single judge while considering the judgment in smt. saila bala dassi v. smt. niramala sundari dassi, air 1958 sc 394 observed that in the present case there was nothing to show that the vendors had been acting against the interests of the transferee in the appeal before the lower appellate court......
Judgment:

H.S. Thakur, J.

1. This letters patent appeal so preferred by the appellant (purchaser of the land in dispute) against the judgment and decree of the learned single Judge of this Court, D/- 11-12-1974: (reported in ILR(1974) Him Pra 1154).

2. A few facts relevant to decide this appeal may be stated. The plaintiffs (the original owners) filed a suit for possession of the land in dispute alleging that the defendant Rirku (whose legal representative Chamaru has been brought on record) executed a document D/-22-12-1964 (Ex. P.1) undertaking to relinquish tenancy rights after harvesting the Rabi Crop 1965. The defendant had not fulfilled the terms of the document and had retained the possession thereby contravening his undertaking. As such, it was prayed that a decree for possession of the land in dispute be granted in favour of the plaintiffs. In the written slatement filed by Rirku, he denied that any such agreement had been entered into by him and it was asserted that a blank document had been signed by him on the representation that an objection had to be filed by him as tenant as the land would otherwise be acquired by the Government. It was further asserted that the agreement was without consideration and was a void transaction. It was also contended that the defendant was an occupancy tenant under the Punjab Act No. VIII of 1953 and that he had become owner of the land and, therefore, civil court had no jurisdiction to entertain the suit.

3. The trial court decreed the suit and also held that it had jurisdiction to entertain the suit, that theagreementdt. 22-12-1964 had in fact been executed by the defendant that the agreement had not been obtained by fraud and that the defendant was not an occupancy tenant of the land.

3A. Rirku defendant preferred an appeal before the learned District Judge. During the pendency of thy appeal, the plaintiffs obtained possession pursuant to the decree of the trial court and sold the property to the present appellant and the respondents 7 and 8. The vendees were put in possession of the land. On 30-9-1969, the learned Additional Distriet Judge, Kangra, allowed the appeal and dismissed the suit. It was held that the agreement had not been executed by Rirku and fraud had been practised upon him and thai the transaction was void inasmuch as no consideration had passed.

4. A second appeal was preferred to this Court but the learned single Judge dismissed the same. In the second appeal, it was urged on behalf of the appellant that he should have had an opportunity of being heard in the appeal by the learned District Judge before it was disposed of and that for want of such hearing he had been gravely prejudiced. The learned single Judge observed in the judgment that it was open to the appellant or respondents in appeal to apply under Order 22 Rule 10, C. P. C. for bringing on the record the transferee of a party to the appeal if during the pendency of that appeal the properly in dispute had been sold to such transferee. It was further observed that no such application was made during the pendency of the appeal. The learned single Judge while considering the judgment in Smt. Saila Bala Dassi v. Smt. Niramala Sundari Dassi, AIR 1958 SC 394 observed that in the present case there was nothing to show that the vendors had been acting against the interests of the transferee in the appeal before the lower appellate court. It was also observed that the law does not require that if property is transferred during the pendency of an appeal and the transferors are already on the record, it is still necessary that the transferee should be brought on the record. It was further observed that mere circumstance that the property had been transferred during the pendency of the appeal did not give a right to the transferee to be brought on the record. Ultimately, the appeal was dismissed by the learned single Judge observing that he was not satisfied that the judgment under appeal was vitiated by any error of law.

5. In this Letters Patent Appeal, it has been reiterated by the learned counsel for theappellant that it was necessary that the appellant and respondents 7 and 8, were impleaded as respondents before the learned District Judge so that they could defend their cause and substantiate their claim to the possession of the land in dispute on the basis of the sale made in their favour. Mrs. P. Malhotra, learned counsel for the appellant, has drawn our attention to the decision in Saila Bala Dassi's case (supra). We have also perused the judgment but we have no hesitation in holding that the observations made by the learned single Judge are fully justified.

6. It is frankly pointed out by Miss Shyama Vasudeva vice Mrs. P. Malhotra that in spite of her best efforts she has not been able to find any direct authority to the effect that it is necessary under the law that a transferee during the pendency of a suit is inevitably to be impleaded as a party in a suit or an appeal.

7. Mr. O. P. Sharma, learned counsel for respondent 1, has drawn our attention to certain decisions to support the view taken by the learned single Judge. He has referred to a Division Bench decision in Lakhsmi Narain v. Babu AIR 1946 Lah 33. The relevant observations of the said judgment may be extracted for a ready reference :

'The provisions contained in Rules 10 and 11 do not make it incumbent upon an assignee to make an application during the pendency of the suit or appeal under the provisions of Order 22 Rules 10 and 11. These provisions are of an enabling character and entitle him to do so if he so desires. He may not, however, choose to make an application if he finds that his interests are being well looked after by his assignor. As Inng as he is of that view, it is unnecessary lor him to make an application for being brought on the record. But when he makes the application and the Court is not inclined to reject it either on the merits or in its exercise of proper judicial discretion, it cannot be turned down on the ground that it is not competent as the assignment was made in his favour during the pendency of the suit and he was making an application under Rules 10 and 11 during the pendency of an. appeal from the decree passed in that suit. He would be after all bound by the judgment and it is only right that he should be allowed to come on the record and protect his interests if he desires so to do.'

The other decision to which reference has been made by Mr. Sharma is in Bakhtawar Singh v. Nirmal Singh AIR 1973 Punj & Har 448. The relevant observations in this judgment may be reproduced for convenience (Paras 5 and 6) :

'......It is common ground that thedefendants 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, C. P. C, 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, Civil P. C. 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'.

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, it is only proper that they should be given a chance of defending the suit, which had been filed against their transferors. The provisions of Order 22, Rule 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.

It is further observed in this judgment as under(Para 8):

''Another Bench of this Court in Liaq Ram v. Mithan Lal, (1959) 61 Punj LR 8, had observed that the provisions of Order 22, Rule 10, Civil P. C., 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 continued as heretofore and 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 again said that an assignee so circumstanced should promptly take advantage of this statutory provision but if he did not do so, then he did so on his own peril and at his own risk.'

8. It is not the case of the appellant that he applied to the learned District Judge to be added as a respondent interms of Order 22 Rule 10, C. P. C. The case of the appellant, however, is that it was incumbent on respondent 1 to implead the appellant as a respondent in the appeal before the learned District Judge. We are unable to agree with this contention of the learned counsel for the appellant in view of the decisions referred to above. It may be pointed out that it is also not the case of the appellant that the transferors-respondents had not been defending his interest in the litigation,

9. In view of the above discussion, we are fully satisfied that the learned single Judge has taken perfectly a correct view of the legal position involved in this case and we affirmthe same. No other point has been canvassed before us.

10. Under the circumstances, there is no merit in this appeal and the same is dismissed with no order as to costs.


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