Muni Lal Chaudhary & Anr vs Smt.Sudha Devi & Ors on 30 April, 2009

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Patna High Court - Orders

Muni Lal Chaudhary & Anr vs Smt.Sudha Devi & Ors on 30 April, 2009

IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.397 of 2006
1. Muni Lal Chaudhary
2. Shatrughan Chaudhary
Both sons of Late Jang Bahadur Chaudhary, resident of Village-
Godhna, Post Office-Anaith, Police Station-Udwant Nagar, District-
Bhojpur.
.................... (Defendants)----- Petitioners
Versus
-----------
1. Smt. Sudha Devi, wife of Sri Bharat Prasad.
2. Ajay Kumar Singh, son of Sri Sudarshan Prasad Singh,
Both residents of Mohalla-Nawada Arrah, Post Office and Police
Station-Nawad Arrah, District-Bhojpur.
3. Moti Devi, wife of Jag Narain Chaudhary, resident of Village-Gorhana, Post office-
Anaith, Police Station-Udwant Nagar, District-Bhojpur.
4. Nawal Kishore Pandey, son of Byash Pandey, resident of Village-Imadpur, Police
Station-Imadpur and Tarari, District-Bhojpur.
................. (Substituted Plaintiffs) --- Opposite Parties.
For the Petitioner : Mr. Shrawan Kumar, Senior Advocate with
Mr. Rajiv Nayan Singh, Advocate
For the Respondent : Mr. Ranjeet Tiwary, Advocate with
Mr. Jitendra Kumar Tiwari, Advocate.
PRESENT
HON'BLE JUSTICE MIHIR KUMAR JHA
---------------
5 Mihir Kr. Jha, J. Heard counsel for the parties.

This Civil Revision Application being barred by

limitation, an application has been filed by the petitioners invoking

the provisions of section 5 of the Limitation Act for condoning the

delay in filing this Civil Revision Application.

Considering the averments made in I.A. No. 1096 of

2006 as also the fact that this petition is barred by limitation of 18

days, only this Court would find that sufficient grounds have been

made out for condoning the delay.

As a matter of fact, the opposite parties have also not

seriously contested the limitation matter and therefore the delay in

filing of this Civil Revision Application is hereby condoned and to
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that extent prayer made in I.A. No. 1096 of 2006 is allowed.

Coming to the merits of this case, this Court would

find that by the impugned order the court below has allowed the

application filed by the opposite party nos. 1 to 4 under Order 22,

rule 10 of the Civil Procedure Code (in short „C.P.C.‟) by holding

that they were purchasers of the share of the suit property of the

original plaintiff Most. Sheorato Kunwar. The court below in this

regard has considered the facts and law in a very graphic manner,

inasmuch as, it has been recorded therein that on 26.8.2003 Most.

Sheorato Kunwar, the original plaintiff had filed a suit claiming

1/3rd share in the joint family property, being 2.52-3/4 acres of

land. The court below has further recorded that Most. Sheorato

Kunwar in her life time, of course after filing of the suit on

16.3.2004, had transferred the suit land by four separate sale deeds

in favour of the opposite parties to the extent of 32 decimals, 26-

1/2 decimals, 7 decimals and 27-1/2 decimals. The said original

plaintiff Most. Sheorato Kunwar had thereafter died on 22.7.2005

and as she was left with no Class-I heirs, the purchasers opposite

parties claiming themselves to be the assignees and legal

representatives of Sheorato Kunwar had filed an application on

20.8.2005 for being permitted to be added as plaintiffs in place of

the deceased Sheorato Kunwar. Such prayer of the opposite parties

was opposed by the petitioner by filing a rejoinder on 2.9.2005

and the Court below after considering the materials on record as

also after hearing the parties had passed the impugned order on
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10.11.2005 allowing prayer of the purchaser-opposite parties for

their being made parties to the suit and substituted as plaintiffs in

place of original plaintiff Smt. Sheorato Kunwar.

Mr. Shrawan Kumar, learned Senior counsel appearing

on behalf of the defendants-petitioners had basically assailed the

impugned order by taking a plea that since the purchaser did not

take permission from the Court below before getting the sale deed

executed from Late Sheorato Kunwar, any such sale deed executed

by Smt. Sheorato Kunwar was hit by the doctrine of Lispendence,

a well settled concept in law under section 55 of the Transfer of

Properties Act. Expanding his submission on the doctrine of

Lispendence Mr. Kumar has also submitted that on the death of

the original plaintiff Sheorato Kunwar who was having no Class-I

heir, her interest could have devolved on the defendants

themselves and as such when the purchaser had no capacity to

represent entire estate of Sheorato Kunwar they being allowed to

contest the suit as substituted plaintiff in place of Sheorato

Kunwar, the original plaintiff, was against the concept of order 22,

rule 3 of the C.P.C. In this context reliance was placed by him on

the judgment of the Apex Court in the case of „Sanjay Verma Vs.

Manik Rai & Ors‟ reported in 2006 (13) SCC 608 and in the case

of Bibi Jubaida Khatoon Vs. Navi Hasan Saheb, reported in 2004

SC 173 as also in the case of Sri Ram Janki Sahkari Grih Nirman

Samittee Ltd Vs. Maksudpur Institute of Research & Education in

Natural & Social Sciences & Ors, reported in 2005 (1) PLJR 225.
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On the other hand, Mr. Tiwary, learned counsel

appearing on behalf of opposite party nos. 1 to 4 has submitted

that four purchaser taken together had purchased the entire share

of the land of the original plaintiff Sheorato Kunwar and therefore

after death of Sheorato Kunwar the four purchasers were required

to protect their interest as with regard to four sale deeds executed

in their favour by Sheorato Kunwar, original plaintiff. Mr. Tiwary

in this context has sought to make a distinction in the concept of

substitution in a suit on the death of the sole plaintiff by his or her

legal heir and legal representative. It was thus sought to be

canvassed by him that the provisions under order 22, rule 3 of the

C.P.C. cannot be made a mutual substitute for the provisions under

Order 22, rule 10 of the C.P.C. as scope of two provisions are

entirely different. He would, accordingly, submit that the suit filed

by the sole plaintiff cannot be allowed to abate in absence of

application under Order 22, rule 3 of the C.P.C by his legal heirs if

there are assignees by way of legal representative who would

qualify to be added as parties to the suit in place of original sole

plaintiff in terms of order 22, rule 10 of the C.P.C. In this context

Mr. Tiwary has also placed reliance on the judgment of the Apex

Court in the case of Savitri Devi Vs. District Judge, Gorakhpur

and others reported in AIR 1999 S.C. 976 as also„Dhurandhar

Prasad Singh Vs. Jai Prakash University & Ors‟, reported in AIR

2001 SC 2552 and a judgment of this Court in the case of „Bharosi

Sah Vs. Manik Chand Gupta & Ors‟, reported in AIR 1986 Patna
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24.

Upon considering the rival contentions of the parties,

as noticed above, this Court at the very out set must record that the

purpose of order 22 of the C.P.C. is to secure the sanguine object

of justice that ordinarily death of plaintiff or defendant shall not

cause the suit to abate if right to sue still survives. Right to sue

being the touch stone for deciding substitution of the plaintiff or

defendant, this Court must hold that if upon death of the original

plaintiff Sheorato kunwar suit filed by her claiming 1/3rd share of

the joint family property was to be dismissed on the ground of its

being abated, while gainers of such dismissal of the suit could

have been only the defendants-petitioners, the purchaser opposite

parties could not have been looser because dismissal of suit on

account of abatement due to non substitution of the original

plaintiff Sheorato Kunwar could not have bound the four

purchasers in any manner and they could have even then filed a

fresh suit on the basis of the sale deeds executed by the Late

Sheorato Kumar the original plaintiff. That by itself could have

given rise to fresh set of litigation amongst the same parties, as

with regard to right, title and interest in the land purchased by

opposite parties from the original plaintiff. As a matter of fact, this

multiplicity of litigation is sought to be avoided under the

provisions of order 22, rule 10 of the C.P.C. which reads as

follows:-

"Procedure in case of assignment before final order in
suit-(i) In other cases of an assignment, creation or
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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

therefrom shall be deemed to be an interest entitling

the person who procured such attachment to the

benefit of sub-rule(i)."

The sanguine object of order 22, rule 10 of the C.P.C.

therefore is to only avoid multiplicity of litigation because Order

22, rule 9 of the C.P.C. clearly lays down that where the suit

abates or is dismissed under Order 22 of the C.P.C. no fresh suit

shall be brought on the same cause of action.

Judged in this background, this Court would find

sufficient force in the submission of counsel for the opposite

parties that four purchasers had a subsisting right to defend their

sale deeds executed by Most. Sheorato Kunwar in her lifetime by

which interest had been devolved on the four purchasers. This

very aspect of comparative scope of order22, rules 3 and 10 of the

C.P.C. was considered by the Apex Court in the case of

Dhurandhar Prasad Singh (Supra) wherein it had been held that:-

"In order to appreciate the points involved, it
would be necessary to refer to the provisions of Order
22 of the Code, Rule 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
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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 an end merely because the interest of a
party in the subject matter of suit is 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 a 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 an 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 interest had devolved. The
legislature while enacting Rules 3,4 and 10 has made
clear cut distinction. In cases covered by Rules 3 and
4, if right to sue survives and no application for
bringing 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 ground is 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 eventually 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 supply for leave to
continue by or against the person upon whom the
interest has devolved for bringing him on the record.
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 pendentelite or suitor or any
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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. Karab-ud-Din,
(1898) ILR 25 Cal. 179. he will be bound by the
result of the litigation even through he is not
represented at the hearing unless it is shown that the
litigation was not properly conducted by the original
party or the 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 Vs. Rookea Begum, (1851-59)? Moo Ind
App 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.
The effect of failure to seek leave or bring on
record the person upon whom the interest has
devolved during the pendency of the suit was subject
matter of consideration before this Court in various
decisions. In the case of Sm. Saila Bala Dassi Vs. Sm.
Nirmala Sundari Dassi, AIR 1958 SC 394. T.L.
Venkatarama Aiyar, J. speaking for himself and on
behalf of S.R. Das, C.J. and A. K. Sarkar and Vevlan
Bose, JJ. laid down the law and if a suit is pending
when the transfer in favour of a party was made, that
would not affect the result when no application had
been made to be brought on the record in the original
Court during the pendency of the suit.
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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 eventually, 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
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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 property 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 even 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. "

Thus, applying the aforesaid ratio of judgment of the

Apex Court in the case of Dhurandhar Prasad Singh (Supra), this
10

Court must hold that the recourse taken by the court below by

allowing the four purchasers opposite parties to be added as parties

to the suit in exercise of power under Order 22, rule 10 of the

C.P.C. as also transposing them as plaintiffs does not suffer from

any infirmity, muchless, jurisdictional error.

This Court, having found applicability of ratio of the

judgment in the case of Dhurandhar Prasad Singh (Supra) to the

facts of the present case, is not required to also examine the ratio

of the judgment of this Court in the case of Savitri Devi (Supra)

which with reference to order 1 Rule 10 C.P.C. only lays down

that the purchasers are necessary parties to the suit in terms of

Order 1, rule 10 of the C.P.C. This Court however must clarify

that the concept and rationale of necessary parties under order 1,

rule 10 of the C.P.C. cannot be ipsofacto made applicable to the

special provisions under Order 22, rule 10 of the C.P.C and

therefore judgment cited by learned counsel for the petitioner on

the issue of Order 1, rule 10 of the C.P.C. will not strictly apply in

this case where only issue is as to whether purchaser should be left

to rue their fate and forced to contest yet another fresh suit on the

death of the sole plaintiff through whom they had acquired interest

in the suit property during pendency of the suit.

This Court, would infact find that the ratio of

judgment in the case of Bharosi Sah (Supra) also supports the

contention of counsel for the opposite party, in as much as, there

also the plaintiff had died during pendency of the suit. In that case
11

also the purchasers were impleaded as co-plaintiffs in the life time

of the plaintiff himself and after his death, during pendency of the

suit, they were allowed to prosecute the suit in the capacity of the

plaintiff and when this aspect was challenged before this Court it

was held that the addition of the transferee as a co-plaintiff, who

subsequently became the sole plaintiff, had the effect of avoiding

the multiplicity of the suits and that the trial court did not act

illegally in allowing the transferee to be added as a plaintiff.

This Court, however must take note of submission of

Mr. Shrawan Kumar, learned Senior counsel of the petitioners

who would place not only reliance on section 52 of the Transfer of

Property Act but also on the statement of law laid down in the

judgment of the Apex Court in the case of Sanjay Verma (Supra).

It has to be noted that the Apex Court in the Sanjay Verma‟s case

was literally dealing with the provisions of Order 1, rule 10 of the

C.P.C and had examined the effect of section 52 of the Transfer of

Property Act only in that background. It is equally important to

note here that the Apex Court in the case of Sanjay Verma had

also considered the judgment in the case of Dhurandhar Prasad

Singh (Supra) and had neither distinguished nor dissented with the

same holding that the same covered the cases arising out of order

22, rule 10 of the C.P.C. In fact, paragraph 12 of the judgment of

the Apex Court in the case of Sanjay Verma (Supra) would only

go to show that the principle of Lispendence under section 52 of

the Transfer of Property Act was held to be in accordance with
12

equity, good conscience or justice because they rest upon an

equitable and just foundation that it will be impossible to bring an

action or suit to a successful termination if alienations are

permitted to prevail. The Apex Court in the said paragraph has

also held that mere pendency of a suit does not prevent one of the

parties from dealing with the property constituting the subject-

matter of the suit. Section 52 of T.P. Act therefore in Sanjai

Verma's case (supra) was held to be provision postulating 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.

This Court, therefore, would read into the ratio in the

case of Sanjay Verma (Supra) to mean that the provisions of Order

22, rule 10 of the C.P.C. will not be affected by the provisions of

Section 52 of the Transfer of Property Act and in a given case

even if the purchaser or the person claiming alienation in interest

is added as party in the suit in terms of Order 22, rule 10 of the

C.P.C. and he can still walk into the shoes of the original plaintiff

and in case it can be demonstrated that any alienation made in his

favour was affecting the right of other party and without

permission of the Court, the same will not stand as a cloud to the

rights of the contesting parties. To make the things very clear in

the present case merely because the purchasers have been added as

parties as substituted plaintiffs in place of original plaintiff Most.

Sheorato Kunwar that will not mean that if Sheorato Kunwar was
13

not entitled to her share or 1/3rd share, even then the purchasers by

virtue of their sale deeds executed by Most. Sheorato Kunwar

would be getting perfect title to the land conveyed to them by

Sheorato Kunwar. The defendants-petitioners, therefore, in no way

are going tobe prejudiced on account of addition of purchasers-

opposite parties as the substituted plaintiffs, since under the

doctrine of Lispendence the decree passed in the suit during

pendency of a proceeding binds that the application of the

transferee to be brought on record should ordinarily be allowed as

was held in the case of "Bakhtawar Singh & Ors. Vs. Nirmal

Singh & Ors", reported in AIR 1973 Punjab and Hariyana 448.

It has also to be kept in mind that at the stage of

granting leave under Order 22, rule 10 of the C.P.C. no detailed

enquiry has to be conducted and the Court has to be only prima-

facie satisfied in exercising its discretion in granting leave for

continuing the suit by or against the person on whom interest has

devolved by alienation made by a party to the suit. The merits of

such alienation however can still be gone into if raised by any

party to the suit at the time of trial of the suit. This aspect of the

matter has also been settled by Bombay High Court in the case of

"Jawaharlal Vs. Smt. Saraswatibai Babulal Joshi & Ors", reported

in AIR 1987 Bombay 276.

Reliance placed on the case of „Bibi Zubaida Khatoon

Vs. Nabi Hassan Saheb & Anr‟, reported in AIR 2004 SC 173, in

fact having been explained in the subsequent judgment in the case
14

of Sanjay Verma (Supra) to have applied to the cases under Order

1, rule 10 of the C.P.C, would have no application to the facts of

this case.

Finally, reliance placed by learned counsel for the

petitioner on the judgment in the case of „Sri Ram Janki Sahkari

Grih Nirman Samiti Ltd. Vs. Maksudpur Institute of Research‟,

reported in 2005 (1) PLJR 225 far from supporting his submission

goes to support the contention of Mr. Tiwary because this Court in

the aforesaid case having noticed the similar situation of death of

the sole plaintiff had held that the order of the court below

allowing impleadment of the interveners-opposite parties in place

of the original plaintiff on the basis of deed of assignment in terms

of Order 23, rule 10 of the C.P.C. was quite proper and justified.

Thus, on an over all analysis, this Court would find

that the impugned order allowing impleadment of the purchasers-

opposite parties as substituted plaintiffs to the suit, does not suffer

from any infirmity and as such this Civil Revision Application

being devoid of any merits must be and is hereby dismissed.

There would be, however, no order as to costs.

Patna High Court (Mihir Kumar Jha, J.)
Dated the 16th September 2009

Abhay Kumar

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