N.S. Nataraja Iyer vs Subramania Iyer and Others

Kunhamed Kutti, J.—In this Civil Revision Petition against the order of the Principal Judge, City Civil Court, Madras, the short question for

consideration is whether the said order directing the impleading of Subramania Iyer, the first respondent-third-party, as a party defendant in O.S.

No. 1508 of 1957, is liable to be interfered with. Subramania Iyer sought to get himself impleaded as a party to O.S. No. 1508 of 1957 on the file

of the Sixth Assistant Judge, City Civil Court, under Order 22, Rule 10, Civil Procedure Code, by I.A. No. 617 of 1959 having purchased the

rights of respondents 2 and 3 herein in certain properties, thatched huts in a piece of land of the extent of 3 grounds and 350 sq.ft. bearing Door

No. 28, Lloyds Road, Mylapore, comprised in R.S. No. 1094 Block No. 23, Mylapore Division, Plot No. 4 in the Corporation Layout No. 13 of

1951, together with the leasehold rights in the said land and all the rights conferred upon the vendors by the order in LA. No. 773 of 1957 in the

said suit, under a sale-deed, dated 18th May, 1959. The learned Sixth Assistant Judge dismissed his application and also his further application

LA. No. 626 of 1959, for leave to deposit the amount of Rs. 9,063-25 nP. and for directions to the plaintiff Nataraja Iyer, the petitioner herein, to

execute a sale deed in his favour conveying the property mentioned in the order in LA. No. 773 of 1957, based on a compromise between the

plaintiff and the defendants in the suit. Subramania Iyer took the matter in appeal in C.M.A. No. 33 of 1959, and the Principal Judge, City Civil

Court allowed the appeal for the reasons stated by him in his judgment, dated 22nd February, 1960. Hence this Revision Petition.

The learned Sixth Assistant Judge rested his conclusion relying largely on the decision in Madhava Rao v. Sri Gangadeswarar Temple (1964) 2

M.L.J. 285. He was no doubt inclined to concede that, if the defendants were legally capable of conveying their rights u/s 9 of the City Tenants

Protection Act, recognised under the consent decree, dated 15th October, 1958, then the applicant, vendor, could be brought on record. But

following the reasoning in Madhava Rao v. Gangadeswarar Temple (1964) 2 M.L.J. 285, he took the view that the decree, dated 15th October,

1958, where under the rights of the defendants u/s 9 of the Act belonged exclusively to them are incapable of being assigned or transferred

according to law, cannot be conveyed or assigned although it is property capable of being conveyed in law. In his opinion the rights under the

decree sought to be transferred by the sale-deed (Exhibit A-1) are purely personal rights which cannot be assigned as laid down in the aforesaid

ruling and concluded:

The alleged conveyance of the alleged leasehold rights and their rights under the decree, dated 15th October, 1958 by means of documents,

Exhibit A-1 is not legally valid. The applicant does not get the rights of the defendants to purchase the land Plot No. 4 for the price fixed in I.A.

No. 773 of 1957 by means of the said document. He cannot, therefore, be added as a party defendant.

""Tenant"" in the Madras City Tenants Protection Act (III of 1922) means a tenant of land liable to pay rent on it, every other person deriving title

from him, and includes persons who continue in possession after the termination of the tenancy. Such a tenant in case a suit for ejectment is

instituted against him, is entitled u/s 9 of the Act to apply to the Court for an order that the landlord shall be direct-ed to sell the land for a price to

be fixed by the Court. If, therefore, assignment of the tenancy rights had been made in favour of the first respondent-plaintiff prior to the institution

of the suit for eviction, there was nothing in law to prevent him from applying u/s 9 for purchase of the landlord''s right in the property. The

assignment in the present case was made subsequent to order (pursuant to a compromise) directing the tenants, respondents 2 and 3, to purchase

the landlord''s right. The assignment deed in favour of the first respondent makes it clear that the rights assigned include the right to purchase the

land from the owner as per the order in LA. No. 773 of 1957. In the typed list of documents supplied by the respondents this part, namely,

paragraph 7 of the document has not been fully set out, but, the relevant portion has been correctly extracted by the lower appellate Court in

paragraph 4 of its judgment. This makes it clear that what was sold to the first respondent is not only right, title and interest in the superstructure in

Plot No. 4 of the extent of 3 grounds and 350 sq.ft. and their leasehold rights, but also the right to purchase the land from the owner as per the

decree in LA. No. 773 of 1957. When so much is clear from the sale-deed, the question for consideration is whether the lower appellate Court

can be said to have acted in the exercise of its jurisdiction illegally or with material irregularity in allowing the transferee, the first respondent, to be

made a party to the proceedings.

I am not prepared to agree with the petitioner that the order passed by the lower appellate Court is materially irregular. In the case relied on by

the learned Assistant Judge, the appellant was an auction-purchaser of the right, title and interest of Ponnuswami in the property and claimed the

benefit of the Madras City Tenants Protection Act. The purchase was two years after Ponnuswami''s tenancy was terminated, and he was called

upon to deliver vacant possession of the land. In such circumstances, the Court found that, if Ponnuswami had, in law, any right in the land it would

have passed to the appellant, but that he had no such right and none therefore passed to the appellant. On facts this case is distinguishable from the

facts of the present case. We are here governed by the simple question whether the first respondent as assignee of the rights of respondents 2 and

3 was entitled to come on record. The matter is governed by Order 22, Rule 10, Civil Procedure Code. Rule 10 lays down that, in case of

assignment or devolution of 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 had come or devolved. The lower appellate Court found that the rights under the order in I.A. No. 773 of 1957 in O.S.

No. 1508 of 1957 having devolved on the first respondent, he is a proper party and has to be impleaded as such. In Re: Kotta Veeraiah and

Others, , was a case of specific performance. It was held in that case that if there was an assignment of the right by the original plaintiff during the

pendency of the suit, the person in whom such right had passed could continue the suit under Rule 10 of Order 22. Pantanjali Sastri, J., (as he then

was) who delivered the judgment construed the words "" assignment, creation or devolution of any interest "" as not to mean an assignment, creation

or devolution of interest in tangible property only. In my view, there is nothing either in Act III of 1922, or in the CPC to preclude respondents 2

and 3 from assigning their rights under the Order in I.A. No. 773 of 1957. This does not however preclude the present petitioner from questioning

the first respondent assignee''s competence to get the reliefs prayed for by him. That is no reason for denying him the right to come on record.

In the circumstances, I am not inclined to interfere with the order passed by the Court below. The Petition is dismissed with costs to the first

respondent.