Madhya Pradesh High Court
Sitaram Dua vs Saraswati Devi Sainy And Ors. on 6 January, 2000
Equivalent citations: AIR2000MP327, 2000(3)MPHT272, AIR 2000 MADHYA PRADESH 327, (2001) 1 JAB LJ 184, (2001) 1 MPLJ 672, (2002) 2 RECCIVR 230
Author: R.S. Garg
Bench: R.S. Garg
ORDER R.S. Garg, J.
1. By this petition Under Section 115 of the Code of Civil Procedure, the applicant seeks to challenge the correctness, validity and propriety of the order dated 17-7-1998 passed by the 6th A.D.J. Bilaspur in Misc. C.A. No. 8/97.
2. The facts necessary for disposal of the present revision are that one Gurdeo Singh filed a suit against the present applicant defendant inter alia pleading that the applicant defendant be restrained from flowing the dirty water in the lane and be also restrained from creating nuisance. The suit was contested by him up to the year 1995, though RS in the year 1992, the said Gurudeosingh transferred the property in favour of the present non-applicants. The factum of sale was not brought to the notice of the Court, nor the present applicant knew about it. The non-applicants, despite purchase of the property, did not come to the Court either under Order 1 rule 10 or under Order 22 rule 10 of the Code of Civil Procedure. The suit continued and after the death of the said Gurudeosingh, the present non-applicant filed an application under Order 22 rule 10 for their substitution on the strength of the assignment. The said application was opposed and contested by the present applicant. The learned trial Court rejected the application holding that the present non-applicants, if are aggrieved by the acts of the present applicant, can file a fresh suit, but they cannot be permitted to be brought on record as assignees of rights of the plaintiff. The non-applicants took up the matter In appeal. The appellate Court, agreeing with the contentions of the non-applicants, allowed the same. Being aggrieved by the said order, the applicant has filed this revision petition.
3. Shri B.P. Gupta, learned counsel for the applicant, vehemently argued that as the non-applicants do not have any interest nor any interest nor any interest has devolved upon them, they cannot be brought on record under Order 22, rule 10 of the C.P.C. According to him, the present non-applicants may have an absolute right in the property, but as no interest has devolved upon them, they cannot be permitted to continue the suit. On the other hand, learned counsel for the non-applicants submits that the Interest to continue with the suit is attached with the right and as the right/ ownership has been transferred/assigned in favour of the non-applicants, the rights which the deceased plaintiff had, have come to them so also the interest to continue the suit has devolved upon them. Therefore, the appellate Court was justified in directing their substitution on record.
4. I have heard the parties at length.
5. Order 22 rule 10 provides for substitution or for correction of the records in case of assignment, creation or devolution of any interest during the pendency of the suit. Order 22, rule 3 C.P.C. says that if the right to sue survives in favour of the remaining plaintiff/plaintiffs or the L.Rs. of the deceased plaintiff, then the suit can be continued by such L.Rs. Order 22 Rule 4 provides that if the plaintiff has a living right and the right to sue survives in the his favour against the remaining defendants and/or against the L.Rs. of the deceased defendant, then they can continue with the suit after substitution of the names of the L.Rs. Order 22, rule 10 C.P.C. talks of a different situation, order 22, rule 10 is not dependent upon the death of a plaintiff or a defendant. It simply provides that in cases of assignment, creation or devolution of any interest during the pendency of the suit, the suit may be continued by such assignee of the rights with the permission of the Court. If provisions of Order 22, rule 10 C.P.C. are appreciated in their true perspective, it would clearly appear that if certain rights are assigned in favour of somebody or an interest is created or an interest devolves upon a person in the property, then such person can continue with the suit with the leave of the Court. In the present case, right to own, possess and enjoy the property has been assigned by Gurudevsingh in favour of the present non applicant. The right would certainty include the interest for which deceased Gurudevsingh was contesting before the Civil Court. During the lifetime of Gurudevsingh, these assignees could always come to the court and seek leave of the court to continue with the suit. The fact would hardly make any difference if such persons who come to the Court after the death of Gurudevsingh. Unlike Order 22, rule 3 or Order 4 C.P.C. which provide for 9 days' limitation, Order 22, rule 10 C.P.C. does not provide for any limitation. It is the choice and sweet will of the assignee of the right to come and contest. If he conies and makes an application for his beingjoined as a party in the suit, the Court may grant the leave, but if he does not come and Join the proceedings, then the Court cannot compel the original plaintiff to bring them on record. The Court may dismiss the suit because at that stage, the plaintiff before the court who had already assigned his rights, would have no cause of action or interest in the property to continue with the suit. In the instant case, before the suit could be dismissed, the present non-applicants came to the Court and made an application for their substitution on the strength of the assignment. If they are the real assignees, they are certainly entitled to be brought on record under Order 22, rule 10 C.P.C.
6. The appellate court was certainly justified in granting the appeal in favour of the non-applicants. I find no reason to interfere.
7. The revision petition is dismissed.