Rajasthan High Court - Jaipur
Chhotu Ram Son Of Shri Gopal Nath @ Gopi ... vs Rameshwar Lal Son Of Late Shri Gopal Nath on 7 September, 2021
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 2082/2020
Chhotu Ram Son Of Shri Gopal Nath @ Gopi Nath Yogi, Aged
About 62 Years, Resident Of Gram Kudli, Tehsil And District Sikar
(Raj.).
----Petitioner
Versus
1. Rameshwar Lal Son Of Late Shri Gopal Nath, Resident Of
Gram Kudli, Tehsil And District Sikar (Raj.).
2. Smt. Sayari Devi Wife Of Late Banti Ram, Resident Of
Gram Kudli, Tehsil And District Sikar (Raj.).
3. Shri Ratan Lal Son Of Late Shri Banti Ram, Resident Of
Gram Kudli, Tehsil And District Sikar (Raj.).
4. Shri Rakesh Son Of Bajrang Lal, Resident Of Gram Kudli,
Tehsil And District Sikar (Raj.).
5. Ashok Son Of Bajrang Lal, Resident Of Gram Kudli, Tehsil
And District Sikar (Raj.).
6. Santosh Devi Daughter Of Bajrang Lal, Resident Of Gram
Kudli, Tehsil And District Sikar (Raj.).
7. Suman Devi Daughter Of Bajrang Lal, Resident Of Gram
Kudli, Tehsil And District Sikar (Raj.).
8. Smt. Geeta Devi Wife Of Bajrang Lal, Resident Of Gram
Kudli, Tehsil And District Sikar (Raj.).
9. Ganesh Son Of Shri Mohan Lal, Resident Of Gram Kudli,
Tehsil And District Sikar (Raj.).
10. Mahesh Son Of Shri Mohan Lal, Resident Of Gram Kudli,
Tehsil And District Sikar (Raj.).
11. Dinesh Son Of Shri Mohan Lal, Resident Of Gram Kudli,
Tehsil And District Sikar (Raj.).
12. Smt. Phooli Devi Wife Of Shri Mohan Lal, Resident Of
Gram Kudli, Tehsil And District Sikar (Raj.).
13. Sita Ram Son Of Shri Fatehchand, Resident Of Gram
Kudli, Tehsil And District Sikar (Raj.).
14. Madan Lal Son Of Shri Fatehchand, Resident Of Gram
Kudli, Tehsil And District Sikar (Raj.).
15. Makkhan Lal Son Of Shri Fatehchand, Resident Of Gram
Kudli, Tehsil And District Sikar (Raj.).
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(2 of 8) [CW-2082/2020]
16. Smt. Sukhi Devi Wife Of Shri Fatehchand, Resident Of
Gram Kudli, Tehsil And District Sikar (Raj.).
17. Smt. Durga Devi Wife Of Shri Banwari Lal, Resident Of
Gram Kudli, Tehsil And District Sikar (Raj.).
18. Anju Daughter Of Shri Banwari Lal, Resident Of Gram
Kudli, Tehsil And District Sikar (Raj.).
19. Guljari Son Of Shri Onkarmal, Resident Of Gram Kudli,
Tehsil And District Sikar (Raj.).
20. Smt. Rukmani Devi Daughter Of Shri Onkarmal, Resident
Of Gram Kudli, Tehsil And District Sikar (Raj.).
21. Kamla Devi Daughter Of Shri Onkarmal, Resident Of
Gram Kudli, Tehsil And District Sikar (Raj.).
22. Sub Registrar, Sikar.
23. Tehsildar, Sikar.
24. Patwari Halka, Kudli, Tehsil And District Sikar (Raj.)
----Respondents
For Petitioner(s) : Mr. Bipin Gupta
For Respondent(s) : Mr. RK Agarwal, Sr. Adv with Ms.
Sunita Pareek, Adv
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Judgment / Order 07/09/2021 Learned counsel to take steps relating to respondent nos. 2 and 16 which are said to have expired.
Learned counsel for the petitioner submits that as the application has been moved under Order 7 Rule 11 CPC by the respondent Nos. 1 and 10 alone, the service on the remaining respondents may be dispensed with.
Accordingly, the requirement of service on the remaining respondents is dispensed with at this stage. (Downloaded on 09/09/2021 at 10:05:42 PM)
(3 of 8) [CW-2082/2020] Another application has been moved by the petitioner under Order 1 Rule 10 CPC for impleading the subsequent purchaser as a party to the present proceedings. Reply has been filed by the respondent Nos. 1 and 10 and it is stated that as the subsequent purchaser would be bound by the decision of the suit between the parties and he is not a necessary party, therefore, in terms of Order 22 Rule 10, he need not be impleaded as a party to the suit.
Learned counsel for the petitioner submits that a purchaser of a suit property, would not make a sale void or voidable because of the pendency of the suit and subsequent purchaser would be always bound by the decision of the suit. In view thereof, he is not a necessary party.
Learned counsel for the petitioner has further submitted that notice is required to be given to the subsequent purchaser of the pendency of the suit and therefore, the plaintiff has in his wisdom moved this application for impleading the subsequent purchaser also.
I have considered the submissions.
In case of Dhurandhar Prasad Singh Vs Jai Prakash University and others reported in 2001 (6) SCC 534, it was held as under:
"24. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing Court can allow objection under section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground that decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. In the case on hand, the decree was passed against the governing body of the College which was defendant without seeking leave of the Court to continue the suit against (Downloaded on 09/09/2021 at 10:05:42 PM) (4 of 8) [CW-2082/2020] the University upon whom the interest of the original defendant devolved and impleading it. Such an omission would not make the decree void ab initio so as to invoke application of Section 47 of the Code and entail dismissal of execution. The validity or otherwise of a decree may be challenged by filing a properly constituted suit or taking any other remedy available under law on the ground that original defendant absented himself from the proceeding of the suit after appearance as it had no longer any interest in the subject of dispute or did not purposely take interest in the proceeding or colluded with the adversary or any other ground permissible under law.
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 plaintiff has devolved. Likewise, in a case where interest of 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 party to the suit has devolved during its pendency, then 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 (Downloaded on 09/09/2021 at 10:05:42 PM) (5 of 8) [CW-2082/2020] 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 plaintiff filed a suit for partition and during its pendency he gifted away his undivided interest in the 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, 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 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."
In Sharadamma Versus. Mohammed Pyrejan (D) through LRs. & Anr. reported in JT 2015 (8) SC 468, the provision of Order 22 Rule 10 & 11 was examined and it was held as under:
"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 referred to in the foregoing Rules and is based on the principle that the trial of a suit cannot be brought to (Downloaded on 09/09/2021 at 10:05:42 PM) (6 of 8) [CW-2082/2020] 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 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."
In A. Nawab John and Others Vs. VC Subramaniyam reported in (2012) 7 SCC 738, the scope of Section 52 was considered and was held as under:
"18. It is settled legal position that the effect of Section 52 is not to render transfers affected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the (Downloaded on 09/09/2021 at 10:05:42 PM) (7 of 8) [CW-2082/2020] result of the suit. The pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the Court.
The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court.
19. Such being the scope of Section 52, two questions arise: whether a pendente lite purchaser (1) is entitled to be impleaded as a party to the suit; (2) once impleaded what are the grounds on which he is entitled to contest the suit.
22. The preponderance of opinion of this Court is that a pendente lite purchaser's application for impleadment should normally be allowed or "considered liberally"."
In view of the above, taking into consideration, that the applications have been moved for impleadment by the plaintiff who has to be treated as master of his suit and can implead persons against whom he wants any relief. The application moved by the petitioner for impleading the subsequent purchaser as a party to the suit deserves to be allowed.
Accordingly, the same is allowed and the objections made by the respondents are accordingly, rejected.
Amended cause-title be filed accordingly. At this stage, learned senior counsel upon instructions submits that the Power shall be filed on behalf of the subsequent purchaser also and he accepts notice on behalf of the subsequent purchaser, therefore, notices need not be issued. (Downloaded on 09/09/2021 at 10:05:42 PM)
(8 of 8) [CW-2082/2020] List this case in "reply filed category" for orders on 28.09.2021.
Interim order, if any, shall continue.
(SANJEEV PRAKASH SHARMA),J CHHAYA AWASTHI /24 (Downloaded on 09/09/2021 at 10:05:42 PM) Powered by TCPDF (www.tcpdf.org)