Delhi High Court
Sh. Kundal Lal & Ors. vs Smt. Prakash Devi on 28 August, 2009
Author: V.B.Gupta
* HIGH COURT OF DELHI : NEW DELHI
FAO. No.258/2009 & C.M. No. 11681/2009
% Judgment reserved on: 24th August, 2009
Judgment delivered on: 28th August, 2009
1. Sh. Kundan Lal
S/o Sh. Tirath Das
R/o A-202, Tarang Apartments,
Plot NO. 19, Patparganj, Delhi-92
2. Sh. Tirath Das
S/o Sh. Atar Prakash
R/o A-202, Tarang Apartments,
Plot NO. 19, Patparganj, Delhi-92
3. Smt. Hukam Devi
W/o Sh. Mool Chand
R/o D -102, Preet Vihar
New Delhi.
4. Smt. Kamlesh Devi
W/o Sh. Uttam Chand
R/o B-42, Ashok Vihar
Delhi.
5. Smt. Vidya Wanti
W/o Sh. Madan Lal
R/o 163-A/E, Shalimar Bagh,
New Delhi
6. Smt. Vimla Devi
W/o Sh. Jagdish Chander
C/o Hotel Delux
Railway Road, Bikaner ....Appellants
FAO No.258/2009 Page 1 of 6
Through: Mr. S.S. Panwar with
Mr. Sumit Dutt Balani
Advocates.
Versus
Smt. Prakash Devi
Wd./o Sh. Pritam Das,
R/o I/9229, West Rohtas Nagar
Gali No. 6, Shahdara,
Delhi. ....Respondent.
Through: Nemo.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
This appeal has been filed the appellant no. 1, against
judgment dated 10th July, 2009 of Additional District Judge,
Delhi, who dismissed the application of appellant no. 1,
filed under Order 22 Rule 10 read with Order 1 Rule 10
and Section 151 of Code of Civil Procedure (for short as
code).
2. Brief facts are that respondent filed a suit for
partition against appellant nos. 2 to 6 and her mother Smt.
Sewi Bai @ Savitri Devi, who was defendant no. 2 at the
time of filing of the suit. Smt. Sewi Bai died on 26 th May,
1998. Vide order dated 22nd October, 1998, application
under Order 22 Rule 2 of the Code, was disposed of since
her legal representatives were already on record as
defendants.
3. On 26th September, 2003 appellant no. 1 herein, filed
application under Order 22 Rule 10 read with Order 1 Rule
10 of the Code on the basis of registered Will dated 27th
April, 1995 of her grandmother, Smt. Sewi Bai.
4. It is contended by learned counsel that appellant no.
1 is the assignee/transferee in suit property and as such he
is a necessary party. The court has power to join the
necessary party under law at any stage of the proceedings
and mere delay in moving the application does not justify
to reject it. No prejudice would be caused to the opposite
party, if appellant no. 1 is impleaded in this case. In
support of its contention learned counsel cited decision of
Supreme Court; Amit Kumar Shaw and Anr Vs. Farida
Khatoon and Anr. (2005) 11 Supreme Court Cases
403.
5. Order 22 Rule 10 of the Code reads as under :
10."Procedure in case of
assignment before final order in
suit:-
(1) In other cases of an assignment,
creation or devolution of any 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 has come
or devolved.
(2) The attachment of a decree
pending an appeal therefrom shall be
deemed to be an interest entitling the
person who procured such attachment
to the benefit sub-rule (1)."
6. This provision is based on the principle that trial of a
suit cannot be brought to an end merely because interest of
a party in the subject matter of the suit has devolved upon
another during the pendency of the suit, but that suit may
be continued against the person acquiring the interest with
the leave of the court. It is the discretion of the court to
implead any party to whom such interest has devolved or
not. This discretion to implead or not to implead the parties
who apply to continue the suit, has to be exercised
judicially and not arbitrarily.
7. As per appellant no.1's case, Smt. Sewi Bai being his
grandmother, executed Will on 27th April, 1995 in his
favour. Smt. Sewi Bai died on 26th May, 1998. It was only
on 26th September, 2003, appellant no. 1 filed present
application, that is, five years four months after, death of
Smt. Sewi Bai.
8. In Lakshan Chunder Dey Vs. Smt. Nikunjamoni
Dassi and Others reported AIR 1924 Calcutta 188, it
has been observed:
"An applicant who invokes the aid of
Rule 10 of Order 22 is not entitled, as
a matter of right, to an order in his
favour, regardless of delay or laches.
The court undoubtedly has a
discretion in the matter which must
be judicially exercised."
9. In Amit Kumar Shaw (Supra) same principle is laid
down:
"Transferee cannot be joined as of
right but court has discretion to do
so"
10. Trial court in impugned judgment held that;
"why the applicant kept mum from 26th May, 1998 to
26th September, 2003." I agree with the findings of the trial
court. There is no explanation as to why there is delay of
more than five years, in filing of this application nor it is
stated as to how and when appellant no. 1, got knowledge
of pending suit before trial court.
11. The application is absolutely silent on these points.
So there is no infirmity and ambiguity in the impugned
judgment. The present appeal is thus not maintainable and
same is hereby dismissed with costs of Rs. 5000/-.
12. Appellant no. 1 is directed to deposit the costs with
Registrar General of this Court within one month from
today.
CM NO. 11681/2009
13. In view of dismissal of appeal, this application stands
dismissed.
14. Copy of this judgment be sent to trial court.
15. List for compliance on 6th October, 2009.
August 28, 2009 V.B.G UPTA,
J.
mr
