Jagrup Singh vs Naib Tehsildar (Sales) Sirsa

B.S. Yadav, J.

This order will dispose of the present revision petition as well as Civil Revision No. 2307 of 1984 (Surinder Singh v. Ishar Singh and others) as the law point involved in both is the same.

In both the cases the learned trial Courts have allowed the applications of the transferees (in other revision petition there is only one transferee) from the defendants on the record for being impleaded as party to the cause. The respective plaintiff/plaintiffs have challenged those orders.

The learned counsel for the contesting respondents/respondent in these petitions have raised a preliminary objection to the effect that the present revision petitions are not maintainable as the learned trial Courts had the jurisdiction to decide the said application and it has done so and there is nothing on the file to show that they have acted illegally or with material irregularity in the exercise of its jurisdiction. In support of their contention they have cited Sarup Chand v. Nagar Palika Sangrur and others, AIR 1980 P&H 114. In that case during the pendency of the suit an application had been filed by one Talia Ram under Order 1 Rule 10 of the Civil Procedure Code with the prayer that he be impleaded as defendant in the suit as he was a necessary party. The trial Court allowed that application. Feeling aggrieved, the plaintiff came to this Court in revision. J.V. Gupta, J. dismissed the revision petition after remarking as follows :

"After hearing the learned counsel for the parties, I do not find any merit in this petition, of course, the provisions of Order 1 Rule 10 of the Code Civil Procedure, confer wide discretion on the trial Court. If the trial Court exercises discretion in favour of the applicant who wishes to be impleaded as a party, High Court in revision will not ordinarily interfere unless impleading of the party results in manifest failure of justice even if it may be held that the trial Court acted illegally or with material irregularity in the exercise of its jurisdiction. The learned counsel for the petitioner was unable to point out as to how the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to him. Even if the order is wrong, the same cannot be interfered with in the exercise of revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure."

The learned counsel for the petitioners argued that in the above case the presence of Talia Ram might have been found by the Court to be necessary for adjudicating the matter in controversy effectually and completely but in the present case the newly added defendants are assignees from defendants on the record and are contesting the suit and, therefore, their presence was not necessary for deciding the cause and the Courts have acted illegally and with material irregularity. In support of this contention reliance was placed upon another judgment of J.V. Gupta, J. which has been reported as Gurbax Singh v. Union of India and others, 1982 Revenue Law Reporter 193. In that case the application of the assignees from Union of India, defendant, to be impleaded as parties was allowed by the trial Court. The plaintiff filed a revision petition in this Court which was allowed. It was remarked by Gupta, J. :

"I have heard the learned counsel for the parties at a great length and have also gone through the authorities cited at the bar. In the present case, the trial Court has acted illegally and with material irregularity in the exercise of its jurisdiction while allowing the applicants to be added as parties to the suit, under Order 1 Rule 10 of the Code. Admittedly, the rights and interest, if any, accrued to the applicants after the institution of the suit, as they claimed themselves to be the auctionpurchasers in the sale which had taken place during the pendency of the suit. The sale in their favour could not be confirmed because of the ad interim injunction passed by the trial Court. Thus, their title to the suit property is not complete till now. In any case, the principle of lis pendens, as envisaged under section 52 of the Act, relating to the transfer of property pending suit, is very much applicable to this case. Once it is held that the applicants had acquired the rights during the pendency of the suit, they cannot claim themselves to be impleaded as parties to the suit under Order 1 Rule 10 of the Code, because in that case, it could not be held that their presence before the Court will be necessary in order to enable the Court effectually and completely to adjudicate upon and to settle all the questions involved in the suit. The auctionpurchasers will have to accept the sale subject to the decision of the suit. Any other dispute or controversy between the applicants and the petitioner, cannot be decided in the suit filed by the plaintiffpetitioner, for which a separate suit may be instituted, if so advised. The mere fact that it will not change the scope and nature of the suit, is no ground for allowing the application under Order 1 Rule 10 of the Code, filed by the applicants. Under these provisions, a party is to be added to the suit only if, on the facts alleged in the application, the Court finds that in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit, the addition of the parties is necessary. On the facts, as stated earlier, no such finding could be given by the trial Court."

However, it appears that the provisions of Order 22 Rule 10 of the Civil Procedure Code and other earlier judgments of this Court were not brought to the notice of the learned Judge.

The said provision came up for interpretation before a Division Bench of this Court in case reported as Laiq Ram v. Mithan Lal etc., 1959 PLR 8. It was remarked :

"It is well established that when an interest has come or devolved on a person during the pendency of the suit or appeal, then he is bound by the decision even if he is not a party to the suit or appeal by name. As observed by Seshagiri Ayyar, J. in Veeraghava Reddi v. Subhe Reddi, I.L.R. 43 Mad. 37 at page 46, if the purchaser is not a party to the suit, he will be bound by the litigation which was in its inception contentious whatever may be the process by which the ultimate conclusion is reached, whether by obtaining after active contest a decision by the Judge or by a compromise outside Court and its recognition by the Judge. It is equally well established that mere omission to make an application under Order XXII Rule 10, Civil Procedure Code, does not effect the course of a suit or appeal. The provisions of Order XXII, Rule 10, Civil Procedure Code, do not compel the assignee or party to a suit or appeal to make an application during the pendency thereof. The provision is merely of enabling character. If no application is made, then the suit or appeal will be continued as heretofore and will be decided between the parties on the record, but the decision will bind the assignee on whom interest in the subjectmatter in the litigation has devolved during the pendency of the suit or appeal (T.K. Chakrapani Iyer v. Ammalu Amma, AIR 1949 Mad. 70). The Courts are not concerned whether or not the parties to the litigation or the assignee thereof has taken advantage of this enabling provision of Order XXII Rule 10 Civil Procedure Code. It is, therefore, obvious that this provision has been enacted mainly to safeguard the interest of an assignee who gets interest in the subjectmatter of the suit or appeal. It cannot be gainsaid that an assignee so circumstanced should promptly take advantage of this statutory provision, but if he does not do so, then he does so on his own peril and at his own risk"

Reference can also be made to Bakhtawar Singh and others v. Nirmal Singh and others, 1973 PLJ 154, wherein it was remarked :

"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 held by a Division Bench, consisting of Harries'' C.J. and Abdur Rahman J., of the Lahore High Court in Lakshmi Narain v. Babu and another, AIR 1946 Lahore 33, that the provisions contained in Rules 10 and 11, of Order 22, Civil Procedure Code, did not make it incumbent upon an assignee to make an application during the pendency of the suit or appeal. Those provisions were an enabling character and entitled the 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 ... ... 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."

In the light of the observations made by this Court in the last two cited cases, it cannot be said that the trial Court acted illegally or with material irregularity in allowing the transferees from the defendants to be impleaded as party. It is not the case of the respective petitioners that these orders have occasioned failure of justice or if allowed to stand would cause irreparable injury to them. Hence the impugned orders in the present cases are not liable to be interfered with. Reference may also be made to The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyederabad and another v. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd Balanagar Hyderabad, AIR 1973 Supreme Court 76 wherein their Lordships remarked, as follows :

"In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion of the High Court that the first appellate Court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under S. 115 of the Civil Procedure Code."

For the foregoing reasons the present revision petition as well as Revision Petition No. 2307 of 1984 are dismissed. No order to costs in both of them.