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Jawaharlal v. Saraswatibai Babulal Joshi
Structured Summary of the Opinion
Factual and Procedural Background
This revision application was filed by the original defendant challenging an order of the trial Court which permitted Non‑applicant No. 5 (who claimed to be the assignee of the interests of Opponents Nos. 1 to 4, the original plaintiffs) to continue a pending suit under Order 22, Rule 10 of the Code of Civil Procedure.
Opponents Nos. 1 to 4 had instituted Small Cause Suit No. 684 of 1981 for possession against the applicant, alleging that they had obtained permission from the Rent Controller to determine the applicant's lease and had issued a notice to determine the lease. The applicant resisted the suit, contending that the notice had been waived by Opponents Nos. 1 to 4 and that the lease had been agreed to be continued.
Opponent No. 5 applied under Order 22, Rule 10, Civil Procedure Code for leave to continue the suit by being added as a plaintiff, claiming that Opponents Nos. 1 to 4 had assigned their interest and the right to continue the suit to him by a sale deed dated 29‑01‑1982. The applicant opposed that application on the ground that, because the notice had been waived, the Rent Controller's permission to determine the lease could not benefit Opponent No. 5. The trial Court, relying on a certified copy of the sale deed produced by Opponent No. 5 and his affidavit, granted leave to Opponent No. 5 to continue the suit. This revision challenges that order.
Legal Issues Presented
- Whether a trial Court must conduct a full or detailed enquiry into the existence and validity of an assignment (or devolution of interest) before granting leave under Order 22, Rule 10, Civil Procedure Code to allow the assignee to continue a suit pendente lite.
- Whether the mere denial or dispute of an assignment by the opposite party is sufficient ground for refusing leave under Order 22, Rule 10.
- Whether the consequences of assignment pendente lite (and the procedural distinctions between Rule 10 and Rules 1–9 of Order 22) require a different approach to enquiry before granting leave.
Arguments of the Parties
Applicant (Revision Applicant) / Shri G.B. Lohia
- Contended that the trial Court granted leave to Opponent No. 5 without conducting any enquiry; argued that such an enquiry is necessary before leave can be granted.
- Submitted that a full enquiry into the existence and validity of an assignment (similar to inquiries required under Rules 1–9 of Order 22 in cases of legal representatives) is required, because Rule 5 specifically provides for determination of whether a person is a legal representative.
- Argued that if the notice to determine the lease was waived by Opponents Nos. 1 to 4, there was nothing left to be assigned to Opponent No. 5; thus the purported assignment could not confer the claimed rights.
- Relied on authority (Devkinandan Lal v. Jogendra Prasad) to argue the assignee was not entitled to continue where, in that case, the assignee was held not entitled because the suit had abated.
Opponent No. 5 (Claimed Assignee)
- Claimed by affidavit and production of a certified copy of a sale deed dated 29‑01‑1982 that Opponents Nos. 1 to 4 had assigned their interest and the right to continue the suit to him.
- Applied for leave under Order 22, Rule 10 to be added as a plaintiff and to continue the suit on the basis of that assignment.
Trial Court / Respondent Position (as recorded)
- The trial Court accepted the certified sale deed and the affidavit of Opponent No. 5 as establishing an assignment sufficient to grant leave under Order 22, Rule 10, and therefore allowed Opponent No. 5 to continue the suit.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Seethai Achi v. Meyappa Chettiar, AIR 1934 Mah 337 | Recognises that Order 22, Rule 10 is not confined to undisputed assignments; the Court may make an inquiry and allow a stranger to be made a party so that common questions can be tried once for all. | Court relied on it to show that while inquiry is open, a full‑scale enquiry into existence/validity is not necessarily required at the leave stage; exercise of discretion by trial Court in making an inquiry is not easily interfered with on revision. |
| Goutami Devi Sitamony v. Madhavan Sivarajan, AIR 1977 Kerala 83 (Full Bench) | Holds that an assignee can apply for leave to continue a suit so long as the suit subsists; if the suit has abated (e.g., by death) the assignee cannot be added thereafter. | Used to distinguish abatement scenarios from the present facts; Court observed that the Full Bench's point about abatement does not govern this case where the suit was subsisting. |
| Krishna Behari Goel v. Raj Mangal Persad, AIR 1954 All 182 | Establishes that at the leave stage the Court is concerned only with whether permission to continue should be granted to claimed assignees; validity of assignment and entitlement to relief are separate questions for trial. | Cited to support the proposition that granting leave is permissible where the applicants claim to be assignees; the question whether assignment is valid can be decided after trial. |
| Ebrahim Mulla v. Chhatrasinhji, AIR 1954 Saurashtra 20 | Holds that mere denial of assignment by opposite party is not sufficient to refuse leave; where prima facie right of applicant is established, validity should be decided in the suit rather than in the leave application. | Applied to justify that a prima facie showing suffices at the leave stage and detailed adjudication on validity belongs to the trial on merits. |
| Devkinandan Lal v. Jogendra Prasad, AIR 1980 Patna 71 | An authority relied on by the applicant where the assignee was held not entitled to continue because the suit had abated. | Court found this authority inapplicable to the present case because here the suit was subsisting and the abatement rationale did not arise. |
| C. Wright Neville v. E.H. Freserf, AIR 1944 Nag 137 | States that an assignee pendente lite need not always apply to be added; only where the assignee's interest is in jeopardy must he apply; mere dispute of assignment is not a ground for refusing leave, though Court may enquire. | Cited to support that an assignment disputed by the opposite party does not automatically preclude grant of leave and that leave may be granted where prima facie entitlement exists. |
Court's Reasoning and Analysis
The Court began with the text of Order 22, Rule 10, Civil P.C. and framed the central question as whether a detailed enquiry into the existence and validity of an assignment is required at the stage of granting leave to an assignee to continue a suit pendente lite.
The Court reasoned as follows (reflecting the sequence in the opinion):
- Construction of Rule 10: The words in sub‑rule (1) describing the person "to or upon whom such interest has come or devolved" are descriptive of who may be granted leave; the phraseology does not mandate a full adjudication of the validity of the assignment before leave is granted.
- Distinction from Rules 1–9: Rules 1–9 of Order 22 (which deal with legal representatives and abatement) and Rule 5's provision for determining who is a legal representative establish a different procedural posture; assignments pendente lite form a distinct class under Rule 10 and do not produce the same consequences as non‑continuance by reason of death or abatement.
- Policy and practical consequences: As explained in Mulla's commentary (cited in the opinion), an assignment pendente lite does not render a suit defective and does not preclude recovery by the assignee; the assignor retains the right to continue the suit. Given these consequences, a full‑scale enquiry at the leave stage is not necessary.
- Authority and precedent: The Court relied on several authorities (summarised above) that establish the practical rule — when a claimant shows a prima facie right to be added as an assignee, denial or dispute of assignment by the opposite party is not of itself sufficient to refuse leave; the validity of the assignment and entitlement to relief are matters to be tried on the merits.
- Standard at leave stage: The Court concluded that the correct standard is a prima facie satisfaction — the trial Court must be prima facie satisfied when exercising its discretion to grant leave under Order 22, Rule 10. A detailed enquiry into all defenses and countercases is not required at that interlocutory stage.
- Application to facts: The trial Judge had before him a certified copy of the sale deed and an affidavit from Opponent No. 5 asserting assignment; on that material the trial Court was entitled to exercise its discretion to grant leave. Accordingly, there was no basis for interference by revision.
The Court therefore held that the trial Court's order granting leave was correct in law and fact and that the question of the ultimate validity of the assignment should be dealt with at trial on the merits.
Holding and Implications
Core Ruling: Rule discharged; the trial Court's order permitting Opponent No. 5 to continue the suit under Order 22, Rule 10 is upheld.
Direct consequences on the parties:
- Opponents Nos. 1 to 4's alleged assignee (Opponent No. 5) remains entitled, on the leave granted by the trial Court, to continue the suit as a plaintiff; the trial Court's grant of leave will not be set aside by this revision.
- The substantive question whether the assignment is valid (and whether Opponent No. 5 can ultimately obtain the relief sought) remains open and is to be decided at the trial on merits.
- The revision rule was discharged with costs, meaning the challenge to the trial Court's interlocutory order failed and costs were awarded against the revision applicant as recorded.
Broader legal implication:
The opinion applies established principles concerning Order 22, Rule 10 — namely, that the leave‑granting stage requires prima facie satisfaction rather than a full‑scale adjudication of the assignment's validity. The decision does not purport to depart from or announce a novel legal rule beyond the authorities cited; it upholds the established approach of reserving detailed adjudication of assignment validity for trial.
Rule discharged.
1. This revision application by the original defendant is directed against the order passed by the trial Court permitting non-applicant No. 5 who claimed to be the assignee of the interest of the opponents Nos. 1 to 4 original plaintiffs to continue the suit under O. 22, R. 10 of the Code of Civil Procedure.
2. The Opponents Nos. 1 to 4 brought 1 Small Cause Suit No. 684 of 1981 for possession against the applicant on the ground that permission to determine the lease of the applicant was obtained by the Opponents Nos. 1 to 4 from the Rent Controller and pursuant to that permission a notice to determine the lease was issued. The suit was resisted by the applicant contending that the notice had been waived by the Opponents Nos. 1 to 4 and they agreed to continue the lease. The Opponent No. 5 filed an application under O. 22, R. 10, Civil Procedure Code for leave to continue that suit by being added as plaintiff No. 4. According to him, the Opponents Nos. 1 to 4 assigned their interest as well as the right to continue the suit to him by the sale deed dated 29-1-1982 and in view of the assignment and devolution of interest upon him, he was entitled to continue the suit.
3. The application was resisted by the revision applicant on the ground that the notice had been waived by the opponents Nos. 1 to 4 and so the permission granted by the Rent Controller to determine the lease would not enure for the benefit of the Opponent No. 5. The trial Court held on the basis of the certified copy of the sale deed produced by the Opponent No. 5 and his affidavit that there was an assignment of the interest of Opponents Nos. 1 to 4 in favour of Opponent No. 5 and granted him leave to continue the suit.
4. The first contention of Shri G.B Lohia, learned counsel for the applicant, was that as there was no enquiry by the trial Court before granting leave to the Opponent No. 5 to continue the suit, the order allowing the application was bad. Order 22, R. 10, Civil P.C is as follows:
“10.(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 therefrom shall be deemed to be an: interest entitling the person who procured such attachment to the benefit of sub-r. (1).”
5. The contention is that before the leave can be granted the Court must ascertain whether the interest has come or devolved on the person claiming to be the assignee and that unless there is an enquiry in respect of the right and the right is established after a full hearing, leave cannot be granted. Now the object of granting leave is to enable proceedings to be continued by or against the person acquiring interest in the subject-matter, the words “upon whom such interest has come or devolved” being merely descriptive of the person in respect of whom such leave may be granted. The phraseology of sub-r. (1) of R. 10 does not indicate that before the leave is granted there has to be a finding regarding the validity of the assignment or devolution.
6. Shri Lohia urged that such an enquiry is necessary in respect of the categories mentioned in Rr. 1 to 9 of O. 22, Civil P.C, before legal representatives are allowed to be brought on record so that the suit can be continued when a party to the suit dies and there is no reason why an exception should be made in the case of persons covered by R. 10. Now R. 5 requires that where a question arises as to whether any person is or is not a legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court. The opening words of sub-r. (1) make it clear that the cases covered by R. 10 are a class apart from the cases covered by Rules 1 to 9 and the option to continue the suit is dependent upon the leave of the Court which the party does not have an absolute right to ask for. Another difference as pointed out in Mulla's Commentary on Civil Procedure Code, Eleventh Edition, at page 720, lies in the consequences of not bringing the assignee or transferee on record. The suit does not become defective by an assignment pendente lite and the assignee is not precluded from recovering the debt due. The trial of a suit cannot be arrested merely by reason of the devolution of the interest of the plaintiff. The successor-in-interest may with the leave of the Court continue the suit. If he does not, the original plaintiff may. The assignor does not by reason of the assignment lose his right to continue the proceedings. This position does not obtain in respect of the categories which are covered by Rr. 1 to 9 of O. 22, Civil P.C In view of this difference a full-scale; enquiry about the existence and validity of the assignment or devolution would not be necessary at the stage of granting leave. It is not expected that the existence or otherwise of the rights or attacks or defences, which may be open to other parties on merits should be gone into at the stage of granting leave. These have to be dealt with at a later stage when the suit comes for trial.
7. In Seethai Achi v. Meyappa Chettiar, AIR 1934 Mah 337, it was observed:
“If there is a question common to the parties on record and a stranger, as regards the subject-matter of the suit or any portion thereof, it should be tried once for all by allowing the stranger to be made a party….. Moreover O. 22, R. 10, Civil P.C is not confined only to cases of undisputed assignment, creation or devolution of interest. It is open to the Court to make an inquiry and pass the necessary order.”
In that case the lower Court had thought it fit to make that enquiry and it was held that the exercise of that discretion cannot be easily interfered with in revision but the proposition that full-scale enquiry into the existence or validity of the assignment be gone is not necessary at the stage of granting leave was never in question.
8. Shri Lohia urged that the Full Bench of the Kerala High Court in Goutami Devi Sitamony v. Madhavan Sivarajan, AIR 1977 Kerala 83 after considering the scheme of O. 22 of the Civil P.C observed that an assignee can make an application for leave to continue the suit so long as there is a suit, so far it concerns the assignee on the file of the Court. The suit there had abated by death of a party and it was observed that in a suit which is not subsisting there is no scope for seeking continuance. It was only logical that in a case where the suit has abated the assignee cannot thereafter seek to be added as a party to the action. It is difficult to see how this observation can have relevance to the facts of the present case Shri Lohia's contention was that if the notice is waived there is nothing which could be assigned. This contention will have to be examined on merits. Clearly it does not have the same effect as abatement on account of the death of a party as then there will be no suit in subsistence.
9. I am fortified in this view by the observations of the Allahabad High Court in Krishna Behari Goel v. Raj Mangal Persad, AIR 1954 All 182 where the contention was that the assignment in favour of the opposite: parties was invalid. That question had been raised before the trial Court but it had not given a finding on it and the appellate Court had not mentioned the objection. The Court observed:—
“At the moment it was concerned only with the question whether the opposite parties should be given permission to continue the suit or not. They claimed to be assignees and as assignees they could be granted permission. Whether they could get the relief or not was a different question to be answered after the suit was tried.
At that time the question would arise whether the assignment in their favour was valid or not. If the assignment was found to be invalid they would not be granted the relief even if they were added as plaintiffs.”
10. In Ebrahim Mulla v. Chhatrasinhji, AIR 1954 Saurashtra 20 it was held that the mere fact that the assignment is denied by the opposite party is not a sufficient ground alone to enable the Court to refuse leave and where ‘prima facie’ the right of the applicant to be brought on record is established, the question as to the validity of the transfer should be decided in the suit itself rather than in an application under O. 22, R. 10. Devkinandan Lal v. Jogendra Prasad, AIR 1980 Patna 71 on which the applicant relied is of no assistance because there the assignee was held not entitled to continue the suit, which had abated.
11. In. C. Wright Neville v. E.H Freserf AIR 1944 Nag 137 it was pointed out that an assignee pendente lite is not bound to file an application during the pendency of the suit if his interest is protected. It is only when he finds that his interest is in jeopardy and not likely to be protected by the assignor that it is necessary for him to apply for leave to continue the suit by or against him. It was held that the mere fact that the assignment was disputed was no ground for refusing leave and the Court could enquire into the factum and validity of the assignment.
12. Having regard to the provisions of O. 22, R. 10, Civil P.C and the authorities to which I have referred, it is apparent that no detailed enquiry 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 and the question about the existence and validity of the assignment or devolution can be considered at the trial of the suit on merits. This being the legal position the order passed by the learned trial Judge was correct and no interference with the discretion exercised by him is called for.
13. In the result, rule is discharged with costs.
Rule discharged.
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