Bai Rabiabai Wd/O Ebrahimmia Mohammad ... vs The Official Assignee And Kalpataru ... on 23 February, 2018
10. One more important aspect, which bears a mention here, is that
when the Court allows an applicant to represent the interest of a party, on
an application under Order 22 Rule 10, it is not as if the contest on the
entitlement of the party to do so is fully and finally decided. All contentions
on merits concerning such entitlement are still a matter of trial. It is just
that on a prima facie assessment of the applicant's locus to do so, the Court
permits him to defend or prosecute the suit. The merit of his defence or
prosecution itself is open to debate in the trial and that includes the
assessment of his right on the basis of which he claims to defend or
prosecute the suit. This Court in the case of Mah-Hill Properties Pvt. Ltd. -
Applicant in the matter of Behram Nawrosji Gamadia vs. Babli
Samarthlal Seth5 has laid down that the Court has only to be prima facie
satisfied for exercising its discretion in granting leave for continuing or
defending the suit by the applicant under Order 22 Rule 10 on assignment
or devolution and the validity of the assignment or devolution can be
considered at the trial of the suit on merits. In the present suit, the
questions such as whether the documents executed by Madiwale family are
documents of transfer or they do or do not invest the Applicant with the
right to claim the transferor's interest in the division of the suit property or
5 CHS55-15 dated 22 June 2017
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whether these documents can be relied on due to insufficiency of stamp, etc.
are all matters of trial. This Court may not decide them finally at this stage.