Madras High Court
C.Venkatesan vs R.Natarajan on 12 June, 2013
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :- 12 .06.2013 Coram The Hon'ble Mr. Justice K.RAVICHANDRABAABU C.R.P.(NPD) No. 1940 of 2011 and M.P.No. 1 of 2011 C.Venkatesan ... Petitioner Vs R.Natarajan ... Respondent Civil Revision Petition filed against the fair and decretal order dated 1.2.2011 made in I.A.No.1369 of 2010 in I.A.No. 471 of 2009 in O.S.No.249 of 2003 on the file of the Principal District Munsif , Vellore. For Petitioner :- Mr.E.Prabu for M/s. R.Munuswamy For Respondent :- Mr. R.Margabandhu ORDER
This Civil Revision Petition is filed against an order made in I.A.No.1369 of 2010 in I.A.No. 471 of 2009 in O.S.No.249 of 2003 on the file of the Principal District Munsif Court, Vellore, wherein and whereby the application filed by the respondent herein under Section 151 CPC praying for deciding the preliminary issue of maintainability of I.A.No. 471 of 2009 was allowed. The said I.A.No. 471 of 2009 was filed by the petitioner herein under Section 5 of the Limitation Act for condoning the delay of 1796 days in filing application under Order 9 Rule 13 of CPC to set aside the exparte decree passed against one V.M.Narayanamurthy and Kupendiran Naidu, who were the defendants in O.S.No. 249 of 2003.
2. The short facts that are necessary for consideration of this Court in this Civil Revision Petition are as follows:-
The respondent herein as the plaintiff filed a suit in O.S.No. 249 of 2003 on the file of the District Munsif Court, Vellore against one V.M.Narayanamurthy and Kupendiran Naidu seeking for permanent injunction restraining the defendants therein, their men, agents and subordinates from in any way interfering with the peaceful possession and enjoyment of the plaintiff over the suit property. The said suit came to be decreed on 26.2.2004 by the trial Court by setting the defendants exparte. Thereafter, the petitioner herein being a third party to the said suit, filed I.A.No. 471 of 2009 on 26.2.2009, that is exactly after five years from the date of the judgment and decree, under section 5 of the Limitation Act seeking for condonation of the delay of 1796 days in filing Order 9 Rule 13 application to set aside the exparte decree passed on 26.2.2004. It is the contention of the petitioner that the first defendant in the said suit viz., V.M.Narayanamurhty sold the suit property to the petitioner on 14.7.2003 under a registered sale deed and he is in possession and enjoyment of the same, right from the date of purchase and the plaintiff has never been in possession of the suit property.
3. A counter affidavit was filed in the said application by the respondent herein contending that the petitioner herein has no right or locus standi to file the petition. It is also specifically denied by the respondent herein that the petitioner did not purchase the suit property from the first defendant and no possession was handed over to the petitioner as contended by him. It is the further contention of the respondent that he alone is in possession and enjoyment of the suit property for several years by having right and interest over the same. After filing the said counter, the respondent herein also filed I.A.No. 1367 of 2010 seeking for deciding the preliminary issue of maintainability of I.A.No. 471 of 2009 by contending that the petitioner herein being not a party to the suit, cannot file I.A.No. 471 of 2009 and as such it is not maintainable. Therefore, the respondent herein prayed for deciding the preliminary issue of maintainability first. The petitioner herein filed a counter in the said I.A.No. 1367 of 2010 and contested the same.
4. The Court below after considering the respective pleadings of the parties and the submissions made on behalf of them allowed the application by observing that the exparte decree passed was not against the petitioner herein and he was not a party in the above suit and as such he has no right to file application under Section 5 the Limitation Act. Aggrieved against the said order, the petitioner is before this Court.
5. Learned counsel appearing for the petitioner submitted that when the petitioner had purchased the suit property from the first defendant during the pendency of the proceedings, all the rights available to the vendor of the petitioner, are also available to the petitioner as the purchaser pendente lite . Section 146 of the Civil Procedure Code permits the proceedings to be continued by the representative of the original parties and therefore, the petitioner is entitled to conduct the proceedings before the Court below. He further submitted that Order 22 Rule 10 CPC, which deals with procedure in case of assignment before final order in suit, permits continuation of the proceedings by the person upon whom such interest has come or devolved. Thus, the learned counsel, relying upon those two provisions of the Code of Civil Procedure submitted that the petitioner's application in I.A.No. 471 of 2009 is maintainable. The learned counsel also submitted that even without seeking leave of the Court, the petitioner is entitled to maintain an application under Section 5 of the Limitation Act. He also submitted that under Order 14 Rule 2 CPC consideration of preliminary issue would arise only in the main suit proceedings and not in I.A. and therefore the Court below ought not to have allowed the application to take up the preliminary issue. He also brought to the notice of this Court that the Court below has not simply allowed the application to consider the maintainability issue as preliminary issue but also gone one step further by specifically holding that the application filed by the petitioner under Section 5 of the Limitation Act in I.A.No. 471 of 2009 is not maintainable. Thus, the learned counsel submitted that the finding of the Court below in effect tantamount in rejecting I.A.No. 471 of 2009. In support of his above submissions, the learned counsel relied on the following decisions :-
1. Raj Kumar Vs.Sardari Lal and others (2004 (2) SCC 601)
2. M.P.Kanoi and Others Vs. Palani , Prop.
M.P.Builders ( 2001 (3) CTC 452)
3. Amit Kumar Shaw and Another Vs. Farida Khatoon and Another (2005 (11) SCC 403)
4. Dhurandhar Prasad Singh Vs. Jai Prakash University and others ( 2001 (6) SCC 534)
5. Smt. Saila Bala Dassi Vs. Smt Nirmala Sundari Dassi and Another (AIR 1958 SC 394)
6. Per contra, the learned counsel Mr.R.Margabandhu, appearing for the respondent submitted that the petitioner admittedly not being a party to the suit is not entitled to file any application without there being any leave granted by the Court below. In the absence of any application filed by the petitioner seeking leave of the Court and any order passed thereon, the application filed in I.A.No. 471 of 2009 is not maintainable as the petitioner has no locus standi to maintain the proceedings. It is the further contention of the learned counsel that the suit decreed on 26.2.2004 is sought to be set aside after five years, especially by a person who is not a party to the proceedings, which action only shows that there is no bonafide on the part of the petitioner. He also submitted that the petitioner himself has already filed a suit in O.S.No. 651 of 2008 seeking for permanent injunction against the respondent which is still pending. Therefore, the Court below has rightly considered all these aspects and allowed the application praying for deciding the maintainability issue as preliminary issue. Insofar as the finding rendered by the Court below with regard to the maintainability of Section 5 application is concerned, the learned counsel submitted that it has to be treated only as an observation since no such order is passed in I.A.No. 471 of 2009 so far, and therefore this cannot be taken as a ground in this Civil Revision Petition.
7. Heard the learned counsel appearing on either side and perused the materials placed before me as well as the case laws cited on behalf of the petitioner.
8. The points for consideration in this case are as follows:- i) Whether a person, who is not admittedly a party to the suit can question the correctness or otherwise of the decree passed therein without seeking leave of the court ?
ii) If any such application is filed by such person without leave of the Court, whether such application is maintainable in law ?
iii) Whether the issue of such maintainability can be raised by the other side to be decided as preliminary issue ?
9. Even though what is under challenge before this Court is against an order made in allowing an application to decide the preliminary issue of maintainability of an application filed by the petitioner under Section 5 of the Limitation Act, based on the facts and circumstances placed before this Court as well as the arguments advanced by either side , this Court has to necessarily decide the other issues also as the same go to the root of the matter.
10. Admittedly, in O.S.No. 249 of 2003 filed by the respondent herein seeking for permanent injunction, the petitioner herein was not a party defendant. On the other hand, it is the contention of the petitioner that he purchased the suit property from the first defendant V.M.Narayanamurthy on 14.7.2003 under a registered sale deed during the pendency of the suit. Thus, even though he is said to have purchased the suit property as early as 14.7.2003 from the first defendant admittedly he has not taken any step to get himself impleaded as party defendant in the said suit during its pendency. Even after the said judgment and decree was passed on 26.2.2004, the fact remains the petitioner had kept quite for five years and thereafter filed I.A.No. 471 of 2009 seeking to condone the delay of 1796 days in filling Order 9 Rule 13 CPC application.
11. From the said admitted facts, the question that would arise for consideration is as to whether the petitioner is entitled to maintain an application straightaway under Section 5 of the Limitation Act and whether such application is maintainable, in the absence of any leave granted by the Court to the petitioner to file such application. In my considered view, certainly, the petitioner being not a party to the proceedings before the Court below is not entitled to maintain an application straightaway under Section 5 of the Limitation Act or under any other provision of law except by obtaining leave of the Court to file such application. Merely because the petitioner purchased the property during the pendency of the proceedings from the first defendant would not entitle him automatically to agitate the matter without getting himself impleaded as party to the proceedings or by leave of the Court. Once a decree is passed against the predecessor in title, the right of purchaser pendente lite is well settled. Needless to say that such purchaser pendente lite is only stepping into the shoes of his vendor and whatever rights and liabilities available on his vendor is also available to the purchaser. However, for establishing such right one cannot straightaway agitate against the decree by projecting himself as a party to the proceedings , without seeking leave of the Court.
12. At this juncture, it is useful to refer to Order 22 Rule 10 CPC, which reads as follows:-
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 there from shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).
13. A bare perusal of the said procedure undoubtedly show that a person is entitled to continue the proceedings if he has acquired an interest by way of an assignment, creation or devolution during the pendency of the suit, only by obtaining leave of the Court and not otherwise. It is not disputed herein in this case that no such leave was ever obtained by the petitioner or no material is placed before this Court indicating that any such leave was either granted or any attempt is made by the petitioner to seek such leave so far. Thus, the application filed by the petitioner without there being any leave granted by the Court is certainly not maintainable. No doubt, the learned counsel for the petitioner relied on Section 146 of Civl Procedure Code to contend that the petitioner being the representative of the first defendant is entitled to continue the proceedings . I am unable to appreciate the said contention. Section 146 is extracted hereunder:-
" Section 146. Proceedings by or against representatives Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person then the proceeding may be taken or the application may be made by or against any person claiming under him. "
14. A bare perusal of Section 146 CPC would show that a person can continue the proceedings as a representative of another person. Going by the facts in this case, certainly the petitioner is not to be construed as the representative of the first defendant. On the other hand, he is claiming right over the suit property as a purchaser from the first defendant. Agitating the matter as the representative of a person is one thing and claiming a right as purchaser through such person is another thing. Therefore, conducting of the proceedings as a representative would mean that right of the principal still continues and the person who wants to continue the proceedings, is continuing the same only as his representative and not on his independent capacity or right. When the petitioner has purchased the suit property from the first defendant, his status is not certainly as that of the representative of his vendor but as a title holder through him. Therefore, the contention of the petitioner based on Section 146 has to be rejected in view of the admitted facts placed before this Court as discussed supra.
15. While considering the decisions relied on by the learned counsel for the petitioner, I find that none of the decisions would come to his support based on the facts and circumstances of the present case. I will deal with the decisions one by one as follows.
16. In Raj Kumar Vs.Sardari Lal and others (2004 (2) SCC 601), the Apex Court has observed that a person who is liable to be proceeded in execution of the decree or who can file an appeal against a decree, though not a party to the suit or decree, does have locus standi to move an application for setting aside an exparte decree passed against the person in whose shoes he has stepped in. The Apex Court observed so after considering the scope of Order 22 Rule 10 as well as Section 146 CPC. As already discussed supra such right is available to a person under Order 22 Rule 10 CPC only with the leave of the Court and not otherwise. When admittedly leave was not obtained by the petitioner, the learned counsel is not justified in relying on the said decision. In fact, the facts of the above case before the Supreme Court would reveal that while seeking to set aside the decree, the party therein also filed an application under Order 22 Rule 10 CPC for being brought on record. Thus, the facts of the said case are totally different and distinguishable.
17. In M.P.Kanoi and Others Vs. Palani , Prop. M.P.Builders ( 2001 (3) CTC 452 , a learned single Judge of this Court observed at paragraph 12 that parties to the decree can only seek to set aside the ex parte decree and this is not an absolute rule that third parties to the proceedings cannot seek to implead themselves and have the suit re-opened or restored. It is further observed that if a party to the suit suffers an ex-parte decree he can file a petition to set aside the exparte decree under the specific Order and Rule of Civil Procedure. But the applications filed by third parties for getting them impleaded in the suit to contest the suit cannot be denied as they have got valid interest in the subject matter of the suit. Here again, there cannot be any quarrel on the said proposition, as it is observed by the learned Judge that a third party who wants to contest the suit should first get himself impleaded in the suit. In this case, admittedly, no such step was ever taken by the petitioner. On the other hand, a decree passed against his vendor was sought to be set aside after five years by the petitioner without seeking leave of the Court. Thus, the petitioner cannot have any support from the above decision of the learned single Judge.
18. In Amit Kumar Shaw and Another Vs. Farida Khatoon and Another (2005 (11) SCC 403) the Apex Court while considering the scope of application under Order 22 Rule 10 CPC even at the appellate stage has observed at paragraph 11 and 12 as follows:-
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11. The application under Order 22 Rule 10 can be made to the appellate Court even though the devolution of interest occurred when the case was pending in the trial Court. In the instant case, the suit was decreed in favour of Fakir Mohammad by judgment and decree dated 03.11.1989. The suit was contested by two sets of defendants, one set of defendants was Birendra Nath Dey and Kalyani Dey and other set of defendants was Jagat Mohan Das alone. The appeals were preferred by the parties. Both the appeals were heard and by a common judgment and order dated 25.6.1992, the said appeals were allowed and the judgment and decree passed by the Munsif was set aside. By a deed of Assignment dated 15.12.1995, the said Birendra Nath Dey assigned his leasehold right in respect of 132 A Circular Garden Reach Road, presently known as 132 A, Karl Marx Sarani), Kolkata in favour of the appellants. By a deed of sale executed on 15.12.1995, duly registered with the Additional Registrar of Assurances, Calcutta, Kalyani Dey Sold the property being 132 B of the above address to the other appellant. The second appeals filed by the parties were pending on the file of the High Court at Calcutta. The appellants had no knowledge of the second appeals. Thereafter on verification, the appellants came to know about the pendency of the appeals which necessitated them to file the applications for substitution in the second appeals. In the meanwhile, the appellants filed the applications before the Municipal authorities for mutation of their names in respect of the property on 24.12.2002 and the Municipal authority informed the appellants that they are not in a position to mutate the names of the appellants of the property in question because of the pendency of the two second appeals before the High Court at Calcutta. Thereafter the appellants engaged an advocate to find out whether any such appeals have been filed by the parties. The advocate so engaged informed the appellants that two appeals being S.A.Nos. 631 and 632 of 1993 were filed by Fakir Mohammad, Farida Khatoon & Ors. Respondent Nos. herein. It was also informed that the said appeals were admitted by the High Court but the impugned judgment and order was neither prayed for stay nor stayed. Therefore, it was also submitted by the appellants that since the appellants have become the absolute owners of the property, their interest will be highly prejudiced and they will be vitally affected, if any order is passed by the High Court without hearing the appellants in the matter. Therefore, they prayed that the appellants are to be substituted in place and stead of the present respondents, since they have no existing and subsisting right, title or interest in the property.
12. Under Order XXII, Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. The question about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit. (emphasis supplied)
19. Going by the said decision of the Apex Court it only shows that the appellants therein filed an application under Order 22 Rule 10 and sought permission of the Court to substitute them in the place of the respondent therein, since the respondents have no existing and subsisting right or title or interest in the property. It is observed by the Apex Court that while considering the application under Order 22 Rule 10 the Court has to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. Thus, seeking of leave from the Court is the first and foremost step one has to take if he is not party to the proceedings, that too when the proceedings has culminated into passing of a decree. Therefore, the above decision relied on by the learned counsel for the petitioner is also not supporting his case.
20. In Dhurandhar Prasad Singh Vs. Jai Prakash University and others ( 2001 (6) SCC 534) the Hon'ble Supreme Court has considered once again the scope of Order 22 Rule 10 and observed at paragraph 26 as follows:-
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.
21. Thus, the categorical finding of the Apex Court as referred supra would show that the petitioner has to necessarily obtain leave of the Court for continuing the proceedings either during the pendency of suit or after the decree is passed. Therefore, the said decision also does not support the case of the petitioner. On the other hand, it only supports the case of the respondent.
22. The other decision relied on by the learned counsel for the petitioner is reported in Smt. Saila Bala Dassi Vs. Smt Nirmala Sundari Dassi and Another (AIR 1958 SC 394). In the said decision the Apex Court has observed that the application filed by the appellant falls within Section 146 of the Civil Procedure Code and she was entitled to be brought on record under that Section. It is also observed therein that Section 146 provides that save as otherwise provided by the Code, any proceeding which can be taken by a person may also be taken by any person claiming under him. A perusal of the facts of the said case would show that the appellant before the Apex Court therein made an application before the Court below for being brought on record as additional appellant in an appeal and the said application was dismissed against which the appeal was filed before the Apex Court. Thus, the facts of that case reveal that the appellant therein sought permission of the Court to bring the appellant on record as an additional appellant in Appeal No. 152 of 1955. Therefore, such facts of the said case being totally different and distinguishable and especially when the fact remains that the appropriate application to come on record was filed by the appellant therein, the said decision will not support the case of the petitioner in any way.
23. With regard to the contention of the learned counsel for the petitioner that consideration of the preliminary issue would arise only in the main suit proceedings and not in interim applications, I am unable to appreciate the said contention for the simple reason that the application filed by the respondent herein is under Section 151 CPC, wherein the inherent power is conferred on the Court make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Therefore, the application seeking to decide the preliminary issue of maintainability can be filed even as against an application filed by the other side and if it is pleaded and established that the application is not maintainable, then the Court can entertain such application seeking for deciding the preliminary issue of maintainability first, even as against any application made by the other side. As already pointed out, the inherent power conferred on the Court under Section 151 CPC is not only to meet the ends of justice and also to prevent abuse of the process of the Court. Therefore, the contention of the learned counsel for the petitioner in this aspect is liable to be rejected. It is also seen that the petitioner himself has already filed a suit against the respondent in O.S.No. 651 of 2008 seeking for permanent injunction in respect of the same property and the same is said to be still pending.
24. Considering all these facts and circumstances as well as the case laws discussed therein, I am of the view that the petitioner herein certainly is not entitled to maintain the application in I.A.No. 471 of 2009 without there being any leave granted to him by the Court below. No doubt the present Civil Revision Petition is filed against the order to decide the preliminary issue of maintainability alone. Since the Court below has also observed in the said order that Section 5 Limitation application is not maintainable, in respect of the said finding rendered by the Court below, this Court has to necessarily go into the same and give a finding as to whether the such finding rendered is valid or not.
25. Thus, the first question is answered by holding that a person who is not a party to the suit cannot question the correctness or otherwise of the decree passed therein without seeking leave of the Court. The second question is answered by holding that any such application filed by such person without seeking leave of the Court is not maintainable. The third question is answered by holding that the issue of maintainability of any application can be raised by the other side, if such application is filed by a person who is not a party to the proceedings and has not obtained leave of the Court. Consequently, I find no merits in this Civil Revision Petition. Accordingly, the Civil Revision Petition is dismissed. The connected M.P. is closed. No costs.
12.06.2013 Index:Yes Internet:Yes krr/ To The Principal District Munsif, Vellore.
K.RAVICHANDRABAABU,J.
Krr/ Pre-Delivery Order in C.R.P.(NPD) No. 1940 of 2011 Dated:- 12 -06-2013