Rajasthan High Court

Naresh Singal S/O Shri Hazari Lal ... vs Smt. Surekha Chitkara W/O Shri ... on 4 February, 2021

Bench: Goverdhan Bardhar

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Revision Petition No. 17/2021

Naresh Singal S/o Shri Hazari Lal Agarwal, Age About 65 Years,
Resident of 4, Shanti Kunj, City And District Alwar And New
Tourist Hotel, 2 Manu Marg, Alwar.
                                                 ----Non-applicant/Petitioner
                                    Versus
1.     Smt. Surekha Chitkara W/o Shri Mahendra Chitkara,
       Resident Of 1/91 Shanti Kunj, Alwar thorough her power
       of attorney holder Mahendra Chitkara S/o Sh. Ram Lal
       Chitkara.
2.     Smt. Sangeeta Sahgal W/o Sh. Vijay Sahgal, Resident of
       D/217, Bhaskar Marg, 101 Akshat Tower, Bani Park, Jaipur
       Through Her Power Of Attorney Holder Sh. Mahendra
       Chitkara S/o Ram Lal Chitkara, Resident Of 1/91, Shanti
       Kunj, Alwar.
                                                                 ----Respondents

For Petitioner(s) : Mr. R.K. Daga For Respondent(s) : Mr. Ashok Mehta Sr. Advocate assisted by Mr. Mudit Singhvi and Mr. Nayar Mahar

HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

Order

04/02/2021 The instant civil revision has been filed

by the non-applicant/ petitioner (herein 'the non-

applicant') under section 115 of the Code of Civil

Procedure against the order dated 12.03.2020 passed

by the Court of Addl. Senior Civil Judge No.1, Alwar

(Raj.) [for short 'the court below'), whereby the

trial court dismissed the application filed by the

non-applicant under Order 7 Rule 11 CPC in an

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eviction petition filed before the Rent Tribunal,

Alwar.

Facts of the case in brief are that the

applicant filed a petition before the Rent Tribunal,

Alwar on the ground of material alteration default

and nuisance. Non-applicant filed written statement

of denial. The case has been posted for evidence and

during the pendency of the petition, the petitioner-

non-applicant-tenant filed an application under

Order 7 Rule 11 CPC with the averments that the

applicant entered into a contract with Hetram Mill

and Pushpendra Choudhary and sold the rental

premises to the aforesaid persons on 26.10.2018 and

possession of the maximum property was handed over

to the purchaser. During the course of cross

examination, agreement to sale (Ex.A34) was produced

before the court below and during the course of

cross-examination this fact was admitted by the

applicant s that they sold the property to the

aforesaid persons. The non-applicant filed aforesaid

application under Order 7 Rule 11 CPC mainly

mentioning therein that no cause of action remains,

as such the petition is apparently barred by law and

liable to be dismissed under the aforesaid

provisions.

Learned counsel for the petitioner- non-

applicant argued that the Rent Tribunal erred in

rejecting the application filed by the non-applicant

under Order 7 Rule 11 CPC. It is not in dispute that

during the course of cross-examination of the

applicants/ respondents (herein 'the applicants'),

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the agreement (Ex.A34) was produced and it is

admitted that the applicants entered into an

agreement to sale with Hetram Mill and Pushpendra

Choudhary. In view of the aforesaid fact, no cause

of action survives in favour of the applicants but

the learned court below did not consider the fact of

subsequent event. When the non-applicant sold the

property in question, he cannot claim the possession

from the applicants- tenant. In support of his

submissions, learned counsel has placed reliance

upon the following judgments:-

1. Shipping Corporation of India Ltd. Vs. Machado Brothers and Ors., reported in (2004) 11 SCC 168;

2. Hasmati Rai & Anr. Vs. Raghunath Prashad, reported in 1981 (2) RCR 405.

On the other hand, learned counsel for the

non-petitioners -applicants submitted that the court

below rightly rejected the application filed by the non-applicant under Order 7 Rule 11 CPC. The Rent

Tribunal has power to adopt its own procedure.

Learned counsel further submitted that it is wrong

to say that the cause of action does not survive.

The status of the non-applicant as tenant in the

premises in question is not disputed and the

agreement does not confer any legal right / title in

view of provisions of section 54 of the Transfer of

Property Act. The eviction petition was filed on the

ground of material alteration.

In support of his submissions, learned

counsel for the non-petitioners-applicants has

placed reliance upon following judgments:-

1. Sharadamma Vs. Mohammed Pyrejan & Ors., reported in AIR 2015 SSC 3747;

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2. Roshan Lal Devi Dass & Ors. Vs. Man Mohan Chopra, C.R. No. 450-D of 1963 , decided by Delhi High Court on 21.12.1970;

3. Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana & Anr., reported in AIR 2012 SC 206;

4. Crest Hotel Ltd. & Anr. Vs. The Assistant Superintendent of Stamps & Anr., reported in AIR 1994 Bombay 228;

5. Jaskirat Datwani Vs. Vidyavati & Ors., reported in (2002) 5 SCC 647; and

6. Dhurandhar Prasad Singh Vs. Jai Prakash University and Ors., reported in (2001) 6 SCC 534.

In the case of Hashmati Rai & Anr. (supra),

the Hon'ble Apex Court allowed the application filed

by the applicant therein under Order 6 Rule 17 CPC

for amendment of the written statement and the

matter was remanded to the first appellate court.

Further, the Hon'ble Apex Court in the case

of Shipping Corporation of India Ltd. (supra), while

allowing the application filed by the applicant

therein under Order 7 Rule 11 (a) and Section 151

CPC being the same maintainable held that the suit which has become infructuous by disappearance of the

cause of action would amount to an abuse of the

process of the court.

Thus, both the judgments- Hasmati Rai &

Anr. and Shipping Corporation of India Ltd. (supra)

cited by the learned counsel for the petitioner-non-

applicant do not help in the instant case to the

petitioner- non-applicant.

In Sharadamma (supra) the Hon'ble Apex

Court in para 6 of its judgment held as under:-

"6. A bare reading of the provisions of Order XXII Rule 10 makes it clear that the legislature has not envisaged the penalty of dismissal of the suit or appeal on

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account of failure of the assignee to move an application for impleadment and to continue the proceedings. Thus, there cannot be dismissal of the suit or appeal, as the case may be, on account of failure of assignee to file an application to continue the proceedings. It would be open to the assignor to continue the proceedings notwithstanding the fact that he ceased to have any interest in the subject-matter of dispute. He can continue the proceedings for the benefit of assignee. The question is no more res integra. This Court in Dhurandhar Prasad Singh v. Jai Prakash University & Ors. [2001 (6) SCC 534] has laid down thus :

"6. In order to appreciate the points involved, it would be necessary to refer to the provisions of Order 22 of the Code, Rules 3 and 4 whereof prescribe procedure in case of devolution of interest on the death of a party to a suit. Under these Rules, if a party dies and right to sue survives, the court on an application made in that behalf is required to substitute legal representatives of the deceased party for proceeding with a suit but if such an application is not filed within the time prescribed by law, the suit shall abate so far as the deceased party is concerned. Rule 7 deals with the case of creation of an interest in a husband on marriage and Rule 8 deals with the case of assignment on the insolvency of a plaintiff. Rule 10 provides for cases of assignment, creation and devolution of interest during the pendency of a suit other than those

(6 of 11) [CR-17/2021]

referred to in the foregoing Rules and is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject-matter of the suit has devolved upon another during its pendency but such a suit may be continued with the leave of the court by or against the person upon whom such interest has devolved.

But, if no such step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by and can have the benefit of the decree, as the case may be, unless it is shown in a properly constituted proceeding that the original party being no longer interested in the proceeding did not vigorously prosecute or colluded with the adversary resulting in decision adverse to the party upon whom the interest had devolved. The legislature while enacting Rules 3, 4 and 10 has made a clear-cut distinction. In cases covered by Rules 3 and 4, if right to sue survives and no application for bringing the legal representatives of a deceased party is filed within the time prescribed, there is automatic abatement of the suit and procedure has been prescribed for setting aside abatement under Rule 9 on the grounds postulated therein. In cases covered by Rule 10, the legislature has not prescribed any such procedure in the event of failure to apply for leave of the court to continue the proceeding by or against the person

(7 of 11) [CR-17/2021]

upon whom interest has devolved during the pendency of a suit which shows that the legislature was conscious of this eventuality and yet has not prescribed that failure would entail dismissal of the suit as it was intended that the proceeding would continue by or against the original party although he ceased to have any interest in the subject of dispute in the event of failure to apply for leave to continue by or against the person upon whom the interest has devolved for bringing him on the record.

7. Under Rule 10 Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against persons upon whom such interest has devolved and this entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet, as pointed out by Their Lordships of the Judicial Committee in Moti Lal v. Karrabuldin [ILR (1898) 25 Cal. 179] he will be bound by the result of the litigation even though he is not represented at the hearing unless it

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is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. It is also plain that if the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit, for, as Lord Kingsdown of the Judicial Committee said in Prannath Roy Chowdry v. Rookea Begum [(1857-60) 7 MIA 323], a cause of action is not prolonged by mere transfer of the title. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings.

x x x x x

26. The plain language of Rule 10 referred to above does not suggest that leave can be sought by that person alone upon whom the interest has devolved. It simply says that the suit may be continued by the person upon whom such an interest has devolved and this applies in a case where the interest of the plaintiff has devolved. Likewise, in a case where interest of the defendant has devolved, the suit may be continued against such a person upon whom interest has devolved, but in either eventuality, for continuance of the suit against the persons upon whom the interest has devolved during the pendency of the suit, leave of the court has to be obtained. If it is laid down that leave can be obtained by that person alone upon whom interest of a party to the suit has devolved during its pendency, then

(9 of 11) [CR-17/2021]

there may be preposterous results as such a party might not be knowing about the litigation and consequently not feasible for him to apply for leave and if a duty is cast upon him then in such an eventuality he would be bound by the decree even in cases of failure to apply for leave. As a rule of prudence, initial duty lies upon the plaintiff to apply for leave in case the factum of devolution was within his knowledge or with due diligence could have been known by him. The person upon whom the interest has devolved may also apply for such a leave so that his interest may be properly represented as the original party, if it ceased to have an interest in the subject-matter of dispute by virtue of devolution of interest upon another person, may not take interest therein, in ordinary course, which is but natural, or by colluding with the other side. If the submission of Shri Mishra is accepted, a party upon whom interest has devolved, upon his failure to apply for leave, would be deprived from challenging correctness of the decree by filing a properly constituted suit on the ground that the original party having lost interest in the subject of dispute, did not properly prosecute or defend the litigation or, in doing so, colluded with the adversary. Any other party, in our view, may also seek leave as, for example, where the plaintiff filed a suit for partition and during its pendency he gifted away his undivided interest in the

(10 of 11) [CR-17/2021]

Mitakshara coparcenary in favour of the contesting defendant, in that event the contesting defendant upon whom the interest of the original plaintiff has devolved has no cause of action to prosecute the suit, but if there is any other co-sharer who is supporting the plaintiff, he may have a cause of action to continue with the suit by getting himself transposed to the category of plaintiff as it is well settled that in a partition suit every defendant is a plaintiff, provided he has cause of action for seeking partition. Thus, we do not find any substance in this submission of learned counsel appearing on behalf of the appellant and hold that prayer for leave can be made not only by the person upon whom interest has devolved, but also by the plaintiff or any other party or person interested."

(emphasis supplied)

During the course of arguments, learned

counsel for the non-applicant has submitted that as

on today no such agreement exists between the

parties and in an eviction petition filed on the

ground of material alteration, default and mistake,

it cannot be said that the cause of action does not

survive. The non-applicant has very much interest in

the subject matter of dispute as till date ownership

remains with the petitioner-non-applicant.

Thus, the trial court has rightly rejected

the application filed by the non-applicant under