Document Fragment View

Matching Fragments

8. On behalf of the plaintiffs, it is submitted that the application is liable to be allowed under Rule 10(1) read with Order 22 Rule 10 since there has been a or devolution of interest and transfer of title in the property from plaintiff nos.1 to 3 to proposed plaintiff no.4. It is contended that at the interim stage and in the written submissions, defendant no.1 dated 28 th March, 2020 has stated that they are concerned with the property bearing survey no.120 Hissa no.2B and not the suit property which bears Hissa no.1 and Hissa no.2A. This is recorded in the ad-interim order dated 21st November, 2012 and interim Ial-3211-20 wadhwa order dated 4th April, 2014. It is contended that the title of the suit property has devolved on respondent no.1 upon execution of Conveyance dated 21st July 2013 and during the pendency of the suit. Respondent no.1 is vitally interested in the litigation and any orders passed would affect the respondent no.1. The applicants have therefore invoked the courts jurisdiction to permit the amendment. Reliance is placed by the applicants on the following judgments;

1) Amit Kumar Shaw v/s. Farida Khatoon (2005) 11 SCC 403;

2) Shardamma v/s. Mohammed Pyrejan (Dead) through LRs and another (2016) 1 SCC 730;

3) Dhurandhar Prasad Singh v/s. Jai Prakash University (2001) 6 SCC 534;

9. On behalf of defendant no.1, it is contended that the interim application seeks deletion of three original plaintiffs' and substitution of respondent no.1 as the sole plaintiff. The averments in the application are to the effect that the plaintiffs interest has devolved upon respondent no.1 during the pendency of the suit and that the suit be continued by the respondent no.1.

Ial-3211-20 wadhwa

10. According to the defendant, no application for joinder as a party has been filed by defendant no.1 and therefore this application ought not to be permitted. Order 22 Rule 10 provides that the suit may be continued by order against the person to or upon whom such interest has come or devolved. Reliance is placed on the observations of the Supreme Court in Shardamma (supra) which records that it is at the option of the assignee to move an application for impleadment. Secondly, in the case of Kripal Kaur v/s. Jitender Pal Singh and others (2015) 9 SCC 356 the Supreme Court observed that leave can be obtained by that person upon whom interest has devolved during the pendency of the suit and that the initial duty lies upon the person on whom such an interest has devolved upon any such property must apply for leave. In the case at hand, respondent no.1 had not filed any application therefore the application is misconceived. It is contended that by transfer in favour of respondent no.1 was made during the pendency of the suit but without leave of the court and under Section 52 of the Transfer of Property Act, the subject matter of suit cannot be transferred except under the authority of the Court. Ial-3211-20 wadhwa

19. I have considered the maintainability of the application under the provisions of Order 22 Rule 10. Rule 10 contemplates three different forms under which a party who claims a interest in the property may continue the suit by him or for a plaintiff to continue to suit against such party in whom interest has come or devolved. The interest in such a recipient comes into being either by assignment or some other mode of creation of such interest or by devolution of interest during the pendency of the suit. In the present case it appears that the Ial-3211-20 wadhwa respondent no.1 is an assignee and therefore although the applicants have chosen to use the expression of "devolution of interest", the term devolution means an act of transferring rights, duties and powers to another although in legal terms "to devolve" would indicate passing of rights by transmission or succession. Assignment appears to be the mode by which the rights in the property have been transferred thereby creating, prima facie, rights in favour of the first respondent. In the light of the fact that none of the respondents are today in a position to question the fact of assignment and in fact admit that substantial amounts may have been paid over under the Deed of Conveyance, the opposition is largely based on the fact that the first respondent is not applicant herein but it is the original plaintiff who seeks to bring to add the respondent no.1 as a party plaintiff. Rule 10 of Order 22 empowers the Court to grant leave to enable party in whose favour interest has been assigned, created or devolves to continue as a suit and in the instant case such interest is said to have assigned, created and devolved in favour of respondent no.1.