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Ghulam Mohamad Sodagar Vs. Ghulam Ahmed Baba and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtJammu and Kashmir High Court
Decided On
Case NumberC.M.P. Nos. 33 and 38 of 1981
Judge
Reported inAIR1983J& K62
ActsCode of Civil Procedure (CPC) , 1908 - Section 107 - Order 41, Rule 33
AppellantGhulam Mohamad Sodagar
RespondentGhulam Ahmed Baba and ors.
Appellant Advocate K.N. Raina, Adv.
Respondent Advocate J.E. Chowdhry, Adv.
Excerpt:
- .....application was moved on 9th of march 1981. soon after, on 26th of mar., 1981, habib ullah sodagar moved an application, being c.m.p. no. 38 of 1981, saying that the alleged assignment had really been made in his favour and ask-ed for leave to continue the appeal as the assignee of the appellant, 2. at the hearing today, the only point on which the emphasis was laid by mr. k. n. raina was that the assignee was guilty of unreasonable delay and as such his request for impleadment was liable to be rejected. in support of his argument, he relied upon the decisions reported in air 1918 pat 606, air 1925 lah 574 and air 1965 madh pra 275. in lahore and patna cases (supra) the reasons of rejecting the im-pleadment on the ground of delay have not been clearly spelt out. in the lahore case, the.....
Judgment:
ORDER

Mufti Baha-Ud-Din Farooqi, Actg. C.J.

1. This order will govern the disposal of C.M.P. Nos. 33 and 38 of 1981. By virtue of C.M.P. No. 33 of 1981, respondent Nos. 1 to 3 moved this court for dismissal of the appeal titled Ghulam Mohamad Baba Versus Ghulam Ahmed Sodagar on the plea that inasmuch as the appellant had assigned his interest in the suit property to Habib Ullah Sodagar, his right to pursue the appeal had got extinguished. It was further pleaded that three years had elapsed since the assignment was made but the assignee had not cared to seek leave of the court to continue the appeal and this constituted an additional reason for the dismissal of the appeal. This application was moved on 9th of March 1981. Soon after, on 26th of Mar., 1981, Habib Ullah Sodagar moved an application, being C.M.P. No. 38 of 1981, saying that the alleged assignment had really been made in his favour and ask-ed for leave to continue the appeal as the assignee of the appellant,

2. At the hearing today, the only point on which the emphasis was laid by Mr. K. N. Raina was that the assignee was guilty of unreasonable delay and as such his request for impleadment was liable to be rejected. In support of his argument, he relied upon the decisions reported in AIR 1918 Pat 606, AIR 1925 Lah 574 and AIR 1965 Madh Pra 275. In Lahore and Patna cases (supra) the reasons of rejecting the im-pleadment on the ground of delay have not been clearly spelt out. In the Lahore case, the learned Judge was more influenced by the fact that the assignment was disputed rather than by the fact there was delay for the prayer for impleadment though that was an additional reason for rejection of the motion for impleadment. In the Patna case, it was broadly stated that the delay was deliberate. In the Madhya Pradesh case, the reasons have been described succinctly. It has been stated that the assignee was aware of the pending suit but he did not care to be impleaded in the suit till the same was decreed. He came up with the request for impleadment only at the appellate stage, his object simply being to create complications in the matter. The ratio of the decision clearly is that where the assignee is aware of the proceedings and wants to delay the impleadment in order to cause the reversal of the proceedings already taken in the matter, the request should be rejected. Applying this rule in the present case, there is hardly any room for the rejection of the application. Perusal of the file shows that during the period intervening the assignment and the motion for impleadment, no effective proceedings have been taken in the appeal and the acceptance of the application for impleadment would not cause the least inconvenience much less, involve reversal of the proceedings already taken in the matter. In the circumstances merely because there has been some delay in moving the application for impleadment. it cannot constitute a sufficient cause for rejection of the application. The other side, can, however, claim costs for the delay occasioned in the disposal of the appeal by the fact that the application for impleadment was moved at a belated stage. I, therefore, reject C.M.P. No. 33 of 1981. However, C.M.P, No. 38 of 1981 is allowed on payment of Rupees 100/- (rupees one hundred) as costs. The assignee is allowed to continue the appeal. The Index shall be corrected accordingly. The application shall be filed.


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