D. G. Traders vs M/s. W. Newman & Co. Ltd. And Another

The said suit being dismissed for default, the opposite party no. 1 took out an application under Order IX Rule 9 of the Code of Civil Procedure for

restoration of the suit, accompanied by an application under Section 5 of the Limitation Act for condonation of delay in filing the restoration

application.

During the pendency of such proceeding, the opposite party no. 2 acquired the entire title of the opposite party no. 1 in the suit premises by virtue of a

compromise decree and applied under Order XXII Rule 10 of the Code of Civil Procedure, apparently for being substituted in place of the petitioner

therein, that is, opposite party no. 1 and for  the plaint to be amended accordingly, with the leave to continue with the suit against the defendant.

The said application was controverted by the present petitioner by filing a written objection. Ultimately, by order no. 103 dated February 4, 2012, the

said application under Order XXII Rule 10 of the Code was allowed. The defendant in the eviction suit has preferred the instant revisional application

against such order dated February 4, 2012.

Learned counsel for the petitioner submits that the application under Order XXII Rule 10 of the Code was not maintainable in the eye of law, since the

suit had already been dismissed for default and there was no existence of the suit in the eye of law on the date when such application was filed. As,

according to learned counsel for the petitioner, Order XXII Rule 10 contemplates devolution of interest during pendency of a suit, the said application

was not maintainable in connection with a miscellaneous case, which was at best an offshoot of the suit.

It was further contended by learned counsel for the petitioner that the said application sought for the present opposite party no. 2 to be impleaded in

the suit itself and for leave to continue with the suit, which was palpably absurd since no suit was existing on the date of filing of the application. In this

context, learned counsel for the petitioner cites a judgment of the Hon’ble Supreme Court reported at AIR 1998 Supreme Court 2542 (Ajmera

Housing Corporation Vs. Amrit M. Patel (dead) through LRs and others). Placing particular reliance on Paragraph â€" 14 of the said judgment,

learned counsel argues that in that case also it was held that Order XXII Rule 10 of the Code  could not be relied on since there was no assignment

or devolution of interest during the pendency of the suit.

Learned counsel for the petitioner also cites a judgment reported at AIR 1959 Calcutta 368 (Kedarnath Kanoria and others Vs. Khaitan Sons and

Co.), where a Division Bench of this Court held that the assignee can obtain leave only to conduct a suit. If the suit has already abated, there is no suit

which may be continued. The abatement terminates the suit and disposes of the plaintiff’s claim as if the suit has been dismissed without a

hearing. Leave to continue a suit cannot be given after the suit has terminated. It cannot be given if the suit has already been decreed or dismissed for

default of appearance of the plaintiff. Similarly, leave cannot be given if the suit has already abated. The suit abates automatically in the absence of

any application under Order XXII Rule 3 within ninety days and a further order declaring that the suit has abated is not necessary. The assignee is

bound by the abatement and by proceedings had in the suit before his intervention.

Controverting such arguments, learned counsel for the opposite party no. 2, who is obviously the main contesting opposite party, submits that the

application filed by the opposite party no. 2 was very much maintainable, since there was devolution of interest from the original plaintiff to the present

opposite party no. 2 by virtue of a compromise decree. Since the opposite party no. 2 has stepped into the shoes of the original plaintiff, the opposite

party no. 2 would not be debarred from exercising rights akin to the original plaintiff even in the miscellaneous case.

It is further argued by learned counsel for the opposite party no. 2, it was agreed by both sides in the court below that the application under Section 5

of the Limitation Act and  the proceeding under Order IX Rule 9 of the Code of Civil Procedure would be taken up together. As such, learned

counsel submits, that there was no infirmity in the impugned order. In this context, learned counsel for the opposite party no. 2 cites a judgment

reported at AIR 2001 Supreme Court 2552 (Dhurandhar Prasad Singh Vs. Jai Prakash University and others), where it was held inter alia that not

only the plaintiff but also the transferee can maintain an application under Order XXII Rule 10 of the Code for being impleaded in a suit.

Upon considering the arguments of both sides, it is seen that, although the application-in-question was filed with a prayer for amendment of the plaint

and leave to continue with the suit, the prayer preceding the same was to substitute the name of the petitioner therein (present opposite party no. 2) in

the place of the plaintiff. Â Moreover, the application had been filed in connection with Miscellaneous Case No. 1854 of 1994, which was the

application under Order IX Rule 9 of the Code of Civil Procedure. In paragraph- 8 of the said application, the present opposite party no. 2 had

specifically prayed that leave might be granted to continue “suit proceeding†against the defendant after substituting their names in the place of

the plaintiff as per the schedule given therein.

A perusal of Section 141 of the Code makes it evident that the procedure provided in the Code of Civil Procedure in regard to suits shall be followed,

as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. The explanation to such section provides that the expression

‘proceedings’ in that section includes proceedings under Order IX of the Code as well.

The provisions of the said section, however, have been read down by certain decisions, wherein it was held that such provision was applicable only to

proceedings of an original nature and not mere interlocutory applications. The provisions of Order XXII Rule 10 of the Code undoubtedly give the right

to an assignee to continue a ‘suit’ by leave of the court. In the present case, by virtue of Section 141 of the Code, the provisions of Order XXII

Rule 10 could very well be applied to a proceeding under Order IX Rule 9 of the Code. The explanation of the said section specifically provides so.

However, a question arises as to whether such a proceeding for restoration of the suit would be non-est in the eye of law due to pendency of an

application for condonation of delay in filing the same.

The said issue has to be addressed from a pragmatic view point, keeping in mind that the assignee of the original plaintiff could not have a right but still

have no remedy. Such a scenario would be violative of the maxim “Ubi Jus Ibi Remediumâ€​.

In such view of the matter, an application under Section 5 of the Limitation Act has to be construed as a necessary corollary of a proceeding under

Order IX Rule 9 of the Code. If, by virtue of Section 141, the provisions of Order XXII Rule 10 of the Code could be invoked in case of an application

under Order IX Rule 9, the same could very well be invoked in respect of an application under Section 5 of the Limitation Act, which is a necessary

vehicle for carrying the Order IX Rule 9 of the Code to the shore of existence. In view of the implicit nature of an application for condonation of

delay, the said application also has to be given some colour of originality, since, in the interregnum before dismissal of a suit for default and an

application for restoration being allowed, Section 5 is the only existing application of original nature (in the sense that it is independent in character and

not an offshoot or not an interlocutory application within the  frame of another proceeding), which can give substance to the inchoate existence of an

 application under Order IX Rule 9 of the Code. Â

Keeping the said principle in view, I have to construe Section 141 of the Code to be  applicable to an application under Section 5 of the Limitation

Act which, in turn would  necessarily have to be allowed for an order under Order IX Rule 9 of the Code to come  into being. As far as the

judgment reported at AIR 1959 Calcutta 368 (Kedarnath Kanoria and othrs Vs. Khaitan Sons and Co.) is concerned, the said judgment was rendered

in the light of a suit having abated and thereafter an application under Order XXII Rule 10 of the Code being taken out.

A combined reading of paragraph nos. 25 and 26 of the said judgment would be relevant for the present purpose. The said paragraphs are as follows :

“25. It is true that the death of the assignor plaintiff simpliciter does not take away the right of the assignee to apply under Order XXII, rule 10 of

the Code of Civil Procedure. By Order XXII, rule 1 the death of the plaintiff of itself does not cause the suit to abate. Before the suit has abated the

assignee may apply for and obtain leave to continue the suit. He may also, if he chooses, apply for substitution of the legal representative of the

deceased plaintiff. In a proper case the order for leave to continue the suit may be dated nunc pro tune as of the date when the application was made.

If necessary, the application for leave to continue the suit may be treated as being in substance a composite application for substitution of the legal

representatives of the deceased plaintiff and thereafter of the applicant. On obtaining the necessary leave the assignee becomes the new plaintiff and

the suit cannot thereafter abate on account of the death of the original plaintiff.

But the assignee can obtain leave only to continue a suit. If the suit has already abated, there is no suit which may be continued. The abatement

terminates the suit and disposes of the plaintiff’s claim as if the suit has been dismissed without a hearing. Leave to continue a suit cannot be

given after the suit has terminated. It cannot be given if the suit has already been decreed or dismissed for default of appearance of the plaintiff.

Similarly, leave cannot be given if the suit has already abated. The suit abates automatically in the absence of any application under Order XXII, rule 3

within ninety days and a further order declaring that the suit has abated is not necessary. The assignee is bound by the abatement and by proceedings

had in the suit before his intervention. I will now notice and deal with cases relied upon by Mr. Bhabhra in this connection.â€​

A conjoint reading of such paragraphs reveals that the Division Bench of this Court categorically held that in such a situation the transferee, if he

chooses, could apply for substitution of the legal representatives of the deceased plaintiff and, if necessary, even the application for leave to continue

the suit might be treated as being in substance a composite application for substitution of the legal representatives of the deceased plaintiff and

thereafter of the applicant. On obtaining the necessary leave, the assignee becomes the new plaintiff and the suit cannot thereafter abate on account

of the death of the original plaintiff.

Keeping the said principle in view, the same analogy can very well be applied to the instant case, replacing of application for substitution by an

application for restoration. On a similar footing as the said judgment, in the present case, the suit stood dismissed for default, at which juncture the

present opposite party no. 2 filed an application under Order XXII Rule 10 of the Code for being impleaded in connection with the suit. Such relief,

sought by the opposite party no. 2 in the said application, has to be read down and moulded in accordance with law and has to be construed as an

application for leave to continue the suit upon being impleaded in the application under Order IX rule 9 of the Code, which was a necessary precursor

to the suit being restored.

As such, the proposition laid down in the cited judgment could not be an impediment to the opposite party no. 2 being permitted to continue with the

application under Order IX rule 9 of the Code and the ancillary application under Section 5 of the Limitation Act. As to the next judgment cited on

behalf of the petitioner, reported at AIR 1998 Supreme Court 2542, in that case, there was no assignment at all. In such context, the Hon’ble

Supreme Court held that Order XXII Rule 10 of the Code did not apply. This apart, in the said case, the question of addition of the transferee arose in

an appeal arising out of an interlocutory application.

In such view of the matter, the Hon’ble Supreme Court held that the decision on the application for addition of party would be likely to prejudice

any decision on the same question, if taken up either in the suit or in any separate suit that might be filed by the appellant. Since the said judgment was

rendered in such a factual matrix, the same could not, by any stretch of imagination operate as a precedent in the present context. As such, it appears

that none of the judgments cited by the petitioner can come to the aid of the proposition sought to be advanced by the petitioner.

Insofar as the judgment cited by the opposite party no. 2 is concerned, the same was on an entirely different proposition and has no relevance to the

instant lis at all. In view of the aforesaid discussions, the impugned order, although miserly in reason, is arrived at the correct conclusion, that is,

permitting the opposite party no. 2 to be impleaded in the proceeding. However, it was left vague by the court below as to, in which proceeding the

opposite party no. 2 was impleaded.

Accordingly, C. O. No. 2107 of 2012 is disposed of on contest, thereby modifying the impugned order to the extent that the present opposite party no.

2 is added as the petitioner in Miscellaneous Case No. 301 of 2013 arising out of Ejectment Suit No. 25 of 1992, as well as the connected application

under Section 5 of the Limitation Act, for condonation of delay in filing the said miscellaneous case. The opposite party no. 2 will now be permitted to

proceed with the said miscellaneous case and connected applications in the court below.

There will, however, be no order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon

compliance with the requisite formalities. In view of the above facts and circumstances, we are not inclined to interfere with the order impugned to

this appeal. Since no other issue is involved in this appeal, this appeal is treated as on day’s list and the same is also taken up for hearing. The

appeal and the application are dismissed accordingly.There will be, however, no order as to costs. Urgent photostat certified copy of this order be

given to the parties on priority basis.