Mamta And Another vs Hem Raj Khanna And Others
2023 Latest Caselaw 5042 P&H

                                                      Neutral Citation No:=2023:PHHC:057911




                                                             2023:PHHC:057911

      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH

                                                          CR-4993-2022 (O&M)
                                                 Date of Decision: April 24, 2023


Mamta and another
                                                                        ...Petitioners

                                        Versus

Hem Raj Khanna and others
                                                                      ...Respondents


CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI


Present:    Mr.Ajay Jain, Advocate
            for the petitioners.

            Mr.Shalender Mohan, Advocate
            for respondents No.1 and 2.

                   ****

ARCHANA PURI, J.

Challenge in the present revision petition is to the order dated

11.10.2022 passed by learned Civil Judge (Jr. Divn.), whereby, an

application filed by the petitioners under Order 22 Rule 10 read with

Section 151 CPC, has been dismissed.

The material facts, as culled out from the paperbook are that,

initially, respondents No.1 and 2 (who are plaintiffs before the lower Court)

had filed a suit for seeking relief of separate possession of half share

through partition by metes and bounds, in respect of shop consisting of two

'khans' bearing No.21, Ward No.XV, as detailed in paragraph 1 of judgment,

copy whereof is Annexure P-1.

As evident from the judgment dated 22.05.2018 (Annexure P-

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1), the said suit was dismissed. Respondents No.1 and 2 (plaintiff) had

filed an appeal. Vide order dated 16.12.2021, the judgment and decree

dated 22.05.2018 was set aside and the case was remanded back to the

lower court, with the direction to take additional evidence of the plaintiff,

as permitted by the Court and also to afford an opportunity, to the

defendant, to rebut the additional evidence and learned lower Court was

further directed to record/return its finding on the aspect of partial partition

of the suit property and to decide the suit afresh on merits. Copy of the

said order is Annexure P-2.

However, on 08.04.2022, the petitioners, namely Mamta and

Kiran, had filed an application under Order 22 Rule 10 read with Section

151 CPC, thereby, asserting about respondent No.3-Radha Krishan

(defendant before the Court below) to have sold his share, in the suit

property, in their favour, vide Vasika No.9926 dated 14.01.2020. It was

also pleaded therein, that they purchased the suit property from the

defendant-Radha Krishan, to the extent of his share. The interest has

devolved upon the petitioners and in view of the above, the petitioners

want to continue the said suit, in place of defendant-Radha Krishan. Copy

of the said application is Annexure P-3.

However, in pursuance of the notice issued, respondents-

plaintiffs had filed their reply, inter alia, stating that the application is false

and frivolous and that the alleged sale deed had come into existence,

without the permission of the Court and is hit by Section 52 of the Transfer

of the Property Act, 1882. The petitioners are neither necessary nor proper

parties. However, the Court below, after hearing the parties concerned,

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vide impugned order dated 11.10.2022, dismissed the application for

substitution of the petitioners, in place of defendant-Radha Krishan, in the

suit, while holding in the facts and circumstances, doctrine of lis-pendence

will apply and petitioners would be bound by the order in the suit.

Learned counsel for the parties heard.

In order to adjudicate the controversy involved in the present

petition, the provisions of Order 22 Rule 10 CPC, is reproduced, as herein

given:-

"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, 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 of sub-rule (1)."

In view of this provision, the finding so recorded by learned

lower Court is erroneous.

Clause 1 of Rule 10 of Order 22 CPC, provides for

continuation of the suit by or against the person to or upon whom such

interest has come or devolved, where there is assignment, creation or

devolution of any interest during the pendency of the suit. Creation and

devolution of interest, in the part of the suit property upon the petitioners

by virtue of registered sale deed dated 14.01.2020, as such, is not a

disputed fact. In fact, the respondents-plaintiffs only submit that said

document is collusive. However, at this juncture, it is pertinent to note that

seemingly, this assertion of collusion is vague, as no substantive material,

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to so establish, has come on record.

In the given circumstances, when the parties are interested to

continue the suit, the Court had no discretion, much-less a judicial

discretion but to allow the suit to be continued against the petitioners by

his substitution in place of defendant in the suit, on the strength of the

aforesaid sale deeds. In this regard, reliance has been placed upon the

judgment passed by this Court in Pipal Singh vs. Anokh Singh and others,

decided on 30.08.2011 in CR-2678-2011.

As observed in the above-said judgment, even the application

of principle of lis pendence, does not in any manner, prevent a person upon

whom the interest in the suit property is created or devolved upon, during

the pendency of the suit, to approach the Court for his/her substitution as a

party. In the aforesaid judgment, it was observed as herein given:-

"XXXX.......True, logical and conclusive interpretation of Order 22 Rule 10 of the Code of Civil Procedure is that a person in whose favour an interest is created or devolved by assignment, steps into the shoes of the party to the suit whose interest such person has acquired by such assignment. Even though, Section 52 of the Transfer of Property Act, prohibits transfer of property during the pendency of the suit, except with the authority of the Court, however, such transfer per se does not become illegitimate. The only impact of Section 52 of the Transfer of Property Act is that the purchaser of the property during the pendency of the lis may be bound by the decree and such transferee may not be a necessary or a property party to be impleaded under Order 1 Rule 10 of the Code of Civil Procedure. However, the scope of Order 22 Rule 10 of the Code of Civil Procedure is slightly different and under this provision by virtue of creation or devolution of interest during the pendency of the suit, the party in whose favour such right or interest is created or devolved upon, is entitled to step in the shoes of the litigant whose interest is devolved upon him. In such a situation, Section 52 of the Transfer of Property Act, does not operate as an embargo for permitting the assignee to step into the shoes of the litigating party on the strength of creation or devolution of any interest in the suit property."

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A similar question came up for consideration before this Court

in the case of Jagdish Chander & another Vs. Om Piari & others, 2008

(4) R.C.R. (Civil), 56, wherein it has been held as herein given:-

"12. Order 22 Rule 10 of the CPC deals with a situation, wherein pending a lis, a party assigns property or during the pending lis, an interest is created in or devolves upon a person not arrayed as a party. Such a person may, subject to the discretion of a Court, file an application praying that he be arrayed as a party, whether as a plaintiff or a defendant subject to his establishing assignment, creation or devolution of any interest in the suit property during the pendency of the suit. The words and expressions appearing in Order 22 Rule 10 of the CPC unlike the words and expressions used in Order 1 Rule 10 of the CPC, permit the suit to be continued by or against the person to or upon whom such interest has come to be assigned or devolved, subject as always to the judicial discretion of a Court. It is, therefore, apparent that the assignee of suit property, pending CR No.2678 of 2011 (6) adjudication of a lis, cannot be impleaded as a party under Order 1 Rule 10 of the CPC but may be allowed to continue or defend the suit under Order 22 Rule 10 of the CPC, by stepping into the shoes of the party assigning property to him."

Considering the ratio of the aforesaid judgment fully

applicable to the facts of case, under consideration in the aforesaid Pipal

Singh's case, the petition was allowed and the concerned applicant was

allowed to step into the shoes of the defendants, on the strength of the sale

deeds.

Furthermore, it was also observed that in the event, the

plaintiff intends to continue with the suit, it shall be continued against the

applicant as an assignee of concerned defendants.

Furthermore, the provision of Order 22 Rule 10 CPC being of

enabling character, do not compel the assignee or party to a suit or appeal

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to make an application during the pendency thereof. If no such application

is made, then the suit or appeal will be continued and will be decided

between the parties to the lis, but the decision will bind the assignee, on

whom interest in the subject matter in the litigation has devolved, during

the pendency of the suit.

However, it cannot be said that in any case, the assignee, so

circumstanced, should promptly take advantage of this statutory provision.

However, if he does not do so, then he does so on his own peril and at his

own risk.

Now, reverting to the case in hand, the sale deed in question

was executed in favour of the petitioners by defendant-Radha Krishan, to

the extent of his share only and possession had been handed over. In these

circumstances, the petitioners, as such, have stepped into the shoes of the

defendant. No doubt, vide order dated 16.12.2021, the impugned judgment

and decree dated 22.05.2018 was set aside by learned lower Appellate

Court and the case was remanded back to the Court below, with the

direction to take additional evidence of the respondents-plaintiffs, as

permitted by that Court and also to afford an opportunity to the defendant

to rebut said additional evidence, but however, this direction, so give by

learned lower Appellate Court, as now submitted by learned counsel for the

petitioners, does not cause any obstruction to the petitioners, from

becoming parties to the proceedings, while stepping into the shoes of

defendant-Radha Krishan.

Even if the petitioners join the proceedings, in lieu of

defendant-Radha Krishan, then also, learned Court below shall be bound to

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record the finding, as so observed by learned lower Appellate Court vide

order dated 16.12.2021, unless and until, this is set aside by any Superior

Court.

In the impugned order, the Court below had placed reliance

upon the judgment passed in Dhanna Singh vs. Baljinder Kaur, 1997(2)

Apex Court Journal 150(SC), Jaswinder Singh vs. Sohan Singh and others,

2005(1) PLR 593, wherein, it was observed as quoted by learned lower

Court that 'the subsequent purchaser does not get any right to be

impleaded as a party. Therefore, it cannot possibly be said that they are

necessary parties to be impleaded as defendants in the main suit. This

matter is no more res integra and is well settled.' However, the

observations so made and so relied upon by learned lower Court, related to

the cases, where the facts of the cases, under consideration were different.

In Dhanna Singh's case (supra), the facts were about the suit for

permanent injunction, having filed by the respondents and therein, despite

availing several opportunities, no evidence was adduced by the defendant

and the Court had closed the evidence of the defendant, while passing an

order, on the statement of the counsel that the first defendant was not

willing to lead any evidence. An application for impleadment was filed

earlier by the appellant, who is a subsequent purchaser from the first

defendant. After impleadment, he filed an application for adduction of

evidence, which was rejected. Under these circumstances, it was observed

that the subsequent purchaser does not get any right to lead to any

evidence, as he stepped into the shoes of the first defendant, who has given

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up his right to lead evidence. In view of the same, he was held not entitled

to any right to lead any evidence.

Likewise, even facts of Jaswinder Singh's case (supra), are

distinguishable from the facts of the case in hand and therefore, no right to

contest the suit and file separate written statement was given to the

subsequent purchaser.

In the light of the aforesaid discussion, the present petition is

hereby allowed and the impugned order dated 11.10.2022 is set aside. The

petitioners are allowed to step into the shoes of defendant-Radha Krishan,

on the strength of the sale deed dated 14.01.2020. In the event,

respondents No.1 and 2-plaintiffs intend to continue with the suit, it shall

be continued against the present petitioners, as assignee of defendant-

Radha Krishan.

April 24, 2023                                       (ARCHANA PURI)
Vgulati                                                  JUDGE

            Whether speaking/reasoned                       Yes
            Whether reportable                              Yes/No




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