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Shakti Chand v. Chamaru And Others
Factual and Procedural Background
The plaintiffs, the original owners, filed a suit for possession of a parcel of land alleging that the defendant Rirku (whose legal representative Chamaru was later brought on record) had executed a document dated 22-12-1964 (Ex. P.1) in which he undertook to relinquish tenancy rights after harvesting the Rabi crop of 1965. The plaintiffs contended that Rirku did not fulfil the terms of this document and retained possession contrary to his undertaking, and they sought a decree for possession.
In his written statement, Rirku denied executing such an agreement, asserted that he had signed a blank document on the representation that an objection had to be filed to prevent government acquisition, alleged the agreement was without consideration and void, and claimed to be an occupancy tenant under Punjab Act No. VIII of 1953 (and had thereby become the owner), arguing that the civil court lacked jurisdiction.
The trial court decreed the suit, finding it had jurisdiction, that the agreement dated 22-12-1964 had been executed by the defendant, that it had not been obtained by fraud, and that the defendant was not an occupancy tenant. Rirku appealed to the District Judge. While that appeal was pending, the plaintiffs obtained possession pursuant to the trial decree and sold the property to the present appellant and respondents 7 and 8; the vendees were put in possession.
On 30-9-1969 the Additional District Judge, Kangra, allowed Rirku's appeal and dismissed the suit, holding that the agreement had not been executed by Rirku, that fraud had been practised upon him, and that the transaction was void for want of consideration. A second appeal to this Court was dismissed by the learned single Judge, who observed that transferees could, but need not, apply under Order 22 Rule 10, C.P.C., and concluded there was nothing to show vendors had acted against the transferee's interests and that mere transfer during pendency did not entitle the transferee to be brought on record automatically.
The present Letters Patent Appeal was filed by the purchaser-appellant challenging the single Judge's dismissal of the second appeal. The appellant contended that the purchaser (and other vendees) should have been impleaded as respondents in the District Judge's appeal so they could defend their possession claim arising from the sale. The court ultimately affirmed the single Judge's view and dismissed the appeal.
Legal Issues Presented
- Whether a transferee (an assignee or purchaser of the property) who acquires interest during the pendency of a suit or appeal must be impleaded as a party under Order 22 Rule 10, C.P.C., or whether impleading is discretionary/enabling.
- Whether the absence of impleading of such a transferee during the pendency of an appeal vitiates the appellate proceedings or causes such prejudice as to require reversal.
Arguments of the Parties
Appellant's Arguments
- The appellant (purchaser of the disputed land) contended it was necessary that the appellant and respondents 7 and 8 be impleaded as respondents before the learned District Judge so they could defend their position and substantiate their claim to possession based on the sale made in their favour.
- The appellant argued that, for want of such impleading and an opportunity to be heard in the appeal before the District Judge, the appellant had been gravely prejudiced.
Defendant Rirku's / Respondent 1's Arguments and Defences at Trial and on Appeal
- In the written statement at trial, the defendant Rirku denied executing the alleged agreement dated 22-12-1964, contending he had signed a blank document on a representation related to objections against government acquisition.
- He maintained the agreement was without consideration and therefore void.
- He also asserted that he was an occupancy tenant under Punjab Act No. VIII of 1953 and had become the owner, which would oust civil court jurisdiction.
- Before this Court in the Letters Patent Appeal, counsel for respondent 1 supported the view that Order 22 Rule 10 is of enabling character and that a transferee is not necessarily required to be impleaded if the transferor is already on record and defending the transferee's interests; to this effect counsel relied on several precedents that were placed before the Court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Smt. Saila Bala Dassi v. Smt. Niramala Sundari Dassi, AIR 1958 SC 394 | The single Judge referred to this decision in considering whether the transferee must be brought on record where transfer took place during the pendency of proceedings. | The learned single Judge (and this Court) observed that in the present case there was nothing to show that the vendors had been acting against the interests of the transferee; the case was used to support the proposition that mere transfer during the pendency of an appeal does not automatically entitle the transferee to be brought on record. |
| Lakhsmi Narain v. Babu, AIR 1946 Lah 33 (Division Bench) | Order 22 Rules 10 & 11, C.P.C.: these provisions are enabling and do not make it incumbent on an assignee to apply to be brought on record during the pendency of a suit or appeal. | The Court extracted and relied on the passage that the provisions are of an enabling character; an assignee may apply but may also rely on the assignor to protect interests. This principle supported the view that impleading is not mandatory. |
| Bakhtawar Singh v. Nirmal Singh, AIR 1973 Punj & Har 448 | Order 22 Rule 10, C.P.C.: assignees who acquire interest during pendency can be allowed to continue proceedings by leave of court; the court should ordinarily grant such applications unless exceptional grounds exist. | The Court reproduced the decision's reasoning that while lis pendens binds the assignee, that is a reason to permit the assignee to be put on record so they may defend, and that O.22 R.10 is enabling and not mandatory; the decision was cited in support of when and how an assignee should be added. |
| Liaq Ram v. Mithan Lal, (1959) 61 Punj LR 8 | Order 22 Rule 10, C.P.C.: reiteration that the provision is enabling and does not compel an assignee to make an application during the pendency of suit or appeal. | The Court noted this authority to emphasize that if no application is made, the suit/appeal proceeds between the parties on record but will bind the assignee; use of this authority supported the Court's conclusion that absence of an assignee's application does not automatically invalidate proceedings. |
Court's Reasoning and Analysis
The Court examined whether the absence of the purchaser-appellant and other vendees as parties before the District Judge required setting aside the appellate decision. The analysis proceeded on these lines:
- The Court first noted the factual posture: the property had been transferred to the appellant and others during the pendency of the appeal before the District Judge, but no application under Order 22 Rule 10, C.P.C. was made by the appellant to be brought on the record in that appeal.
- The appellant's contention was that the transferees should have been impleaded by respondent 1 so that they could defend their possession claim; the Court analysed whether the law imposes such an obligation.
- The Court reviewed relevant authorities (including Saila Bala Dassi, Lakhsmi Narain v. Babu, Bakhtawar Singh v. Nirmal Singh, and Liaq Ram v. Mithan Lal) and distilled from them the governing principle: Order 22 Rule 10 is of an enabling (discretionary) character, not a mandatory provision that compels an assignee/transferee to be brought on the record merely because a transfer occurred during pendency. An assignee may apply to be brought on record but is not strictly obliged to do so; where an application is made, it should ordinarily be granted unless there are exceptional grounds to refuse it.
- The Court further noted the single Judge's observation that nothing in the record showed the transferors were acting against the interests of the transferee; if the transferors on record are defending the transferee's interests, there is less reason to require impleading of the transferee.
- Because the appellant had not applied under Order 22 Rule 10 to be brought on the record, and the appellant did not allege that the transferors had failed to defend their interests in the litigation, the Court found no legal basis to fault the learned single Judge's conclusion. The authorities cited supported treating impleading as permissive rather than mandatory and did not require reversal in these circumstances.
The Court therefore concluded that the learned single Judge had correctly decided the matter and that no error of law vitiated the judgment under challenge.
Holding and Implications
Holding: The Letters Patent Appeal is dismissed. Appeal dismissed.
Implications:
- Direct effect on the parties: the dismissal affirms the learned single Judge's decision and leaves the appellate outcome intact; the appellant's contention that the transferee had to be impleaded was rejected. The appeal was dismissed with no order as to costs.
- Broader legal implication: the Court affirmed the established view (as reflected in the cited authorities) that Order 22 Rule 10, C.P.C. is enabling and does not mandate that a transferee who acquires an interest during the pendency of suit or appeal must automatically be impleaded where the transferor remains on record and is defending the interests. The opinion does not purport to lay down any new precedent beyond application of those authorities to the facts of this case.
H.S Thakur, J.:— This letters patent appeal so preferred by the appellant (purchaser of the land in dispute) against the judgment and decree of the learned single Judge of this Court, D/- 11-12-1974: (reported in ILR (1974) Him Pra 1154).
2. A few facts relevant to decide this appeal may be stated. The plaintiffs (the original owners) filed a suit for possession of the land in dispute alleging that the defendant Rirku (whose legal representative Chamaru has been brought on record) executed a document D/- 22-12-1964 (Ex. P. 1) undertaking to relinquish tenancy rights after harvesting the Rabi Crop 1965. The defendant had not fulfilled the terms of the document and had retained the possession thereby contravening his undertaking. As such, it was prayed that a decree for possession of the land in dispute be granted in favour of the plaintiffs. In the written statement filed by Rirku, he denied that any such agreement had been entered into by him and it was asserted that a blank document had been signed by him on the representation that an objection had to be filed by him as tenant as the land would otherwise be acquired by the Government. It was further asserted that the agreement was without consideration and was a void transaction. It was also contended that the defendant was an occupancy tenant under the Punjab Act No. VIII of 1953 and that he had become owner of the land and, therefore, civil court had no jurisdiction to entertain the suit.
3. The trial court decreed the suit and also held that it had jurisdiction to entertain the suit, that the agreement dt. 22-12-1964 had in fact been executed by the defendant that the agreement had not been obtained by fraud and that the defendant was not an occupancy tenant of the land.
3A. Rirku defendant preferred an appeal before the learned District Judge. During the pendency of the appeal, the plaintiffs obtained possession pursuant to the decree of the trial court and sold the property to the present appellant and the respondents 7 and 8. The vendees were put in possession of the land. On 30-9-1969, the learned Additional District Judge, Kangra, allowed the appeal and dismissed the suit. It was held that the agreement had not been executed by Rirku and fraud had been practised upon him and that the transaction was void inasmuch as no consideration had passed.
4. A second appeal was preferred to this Court but the learned single Judge dismissed the same. In the second appeal, it was urged on behalf of the appellant that he should have had an opportunity of being heard in the appeal by the learned District Judge before it was disposed of and that for want of such hearing he had been gravely prejudiced. The learned single Judge observed in the judgment that it was open to the appellant or respondents in appeal to apply under O. 22 R. 10, C.P.C, for bringing on the record the transferee of a party to the appeal if during the pendency of that appeal the property in dispute had been sold to such transferee. It was further observed that no such application was made during the pendency of the appeal. The learned single Judge while considering the judgment in Smt. Saila Bala Dassi v. Smt. Niramala Sundari Dassi, AIR 1958 SC 394 observed that in the present case there was nothing to show that the vendors had been acting against the interests of the transferee in the appeal before the lower appellate court. It was also observed that the law does not require that if property is transferred during the pendency of an appeal and the transferors are already on the record, it is still necessary that the transferee should be brought on the record. It was further observed that mere circumstance that the property had been transferred during the pendency of the appeal did not give a right to the transferee to be brought on the record. Ultimately, the appeal was dismissed by the learned single Judge observing that he was not satisfied that the judgment under appeal was vitiated by any error of law.
5. In this Letters Patent Appeal, it has been reiterated by the learned counsel for the appellant that it was necessary that the appellant and respondents 7 and 8 were impleaded as respondents before the learned District Judge so that they could defend their cause and substantiate their claim to the possession of the land in dispute on the basis of the sale made in their favour. Mrs. P. Malhotra, learned counsel for the appellant, has drawn our attention to the decision in Saila Bala Dassi's case (supra). We have also perused the judgment but we have no hesitation in holding that the observations made by the learned single Judge are fully justified.
6. It is frankly pointed out by Miss Shyama Vasudeva vice Mrs. P. Malhotra that in spite of her best efforts she has not been able to find any direct authority to the effect that it is necessary under the law that a transferee during the pendency of a suit is inevitably to be impleaded as a party in a suit or an appeal.
7. Mr. O.P Sharma, learned counsel for respondent 1, has drawn our attention to certain decisions to support the view taken by the learned single Judge. He has referred to a Division Bench decision in Lakhsmi Narain v. Babu AIR 1946 Lah 33. The relevant observations of the said judgment may be extracted for a ready reference:
“The provisions contained in Rr. 10 and 11 do not make it incumbent upon an assignee to make an application during the pendency of the suit or appeal under the provisions of O. 22 Rr. 10 and 11. These provisions are of an enabling character and entitle him to do so if he so desires. He may not, however, choose to make an application if he finds that his interests are being well looked after by his assignor. As long as he is of that view, it is unnecessary for him to make an application for being brought on the record. But when he makes the application and the Court is not inclined to reject it either on the merits or in its exercise of proper judicial discretion, it cannot be turned down on the ground that it is not competent as the assignment was made in his favour during the pendency of the suit and he was making an application under Rr. 10 and 11 during the pendency of an appeal from the decree passed in that suit. He would be after all bound by the judgment and it is only right that he should be allowed to come on the record and protect his interests if he desires so to do.”
The other decision to which reference has been made by Mr. Sharma is in Bakhtawar Singh v. Nirmal Singh AIR 1973 Punj & Har 448. The relevant observations in this judgment may be reproduced for convenience (Paras 5 and 6):
“……It is common ground that the defendants in the suit had sold the property in dispute to the petitioners during the pendency of the litigation. By virtue of the provisions of O. 22, R. 10, C.P.C, the proceedings in the suit, by the leave of the Court, can be continued by the persons, on whom the interest either of the plaintiff or the defendant devolves. Therefore, under this provision, the petitioners could defend the suit. The learned Judge rejected their application, which they made under O. 22, Rr. 10 and 11, Civil P.C on two grounds. Firstly, it was said that the principle of lis pendens would apply and the petitioners would be bound by the result of the litigation that was already going on. In the second place, it was observed that if the petitioners were allowed to be added as parties, then further complications would arise, because “they might raise some other pleas”.
As regards the first ground, it is quite true that the principle of lis pendens would apply and the petitioners would be bound by the result of the litigation. It is precisely for that very reason that, in my view, the application filed by them should have been granted. If they have to suffer the consequences of the litigation that was going on, it is only proper that they should be given a chance of defending the suit, which had been filed against their transferors. The provisions of O. 22, R. 10 do not, however, compel an assignee to make an application in that behalf, but if he chooses to do so, the said application should ordinarily be granted, unless there are some exceptional grounds for rejecting it and such grounds, in my view, do not exist in the instant case.”
It is further observed in this judgment as under (Para 8):
“Another Bench of this Court in Liaq Ram v. Mithan Lal, (1959) 61 Punj LR 8, had observed that the provisions of O. 22, R. 10, Civil P.C, did not compel the assignee or party to a suit or appeal to make an application during the pendency thereof. The provision was merely of enabling character. If no application, was made, then the suit or appeal would be continued as heretofore and would be decided between the parties on the record, but the decision would bind the assignee on whom interest in the subject-matter in the litigation had devolved during the pendency of the suit. It could not be again said that an assignee so circumstanced should promptly take advantage of this statutory provision but if he did not do so, then he did so on his own peril and at his own risk.”
8. It is not the case of the appellant that he applied to the learned District Judge to be added as a respondent in terms of O. 22 R. 10, C.P.C The case of the appellant, however, is that it was incumbent on respondent 1 to implead the appellant as a respondent in the appeal before the learned District Judge. We are unable to agree with this contention of the learned counsel for the appellant in view of the decisions referred to above. It may be pointed out that it is also not the case of the appellant that the transferors-respondents had not been defending his interest in the litigation.
9. In view of the above discussion, we are fully satisfied that the learned single Judge has taken perfectly a correct view of the legal position involved in this case and we affirm the same. No other point has been canvassed before us.
10. Under the circumstances, there is no merit in this appeal and the same is dismissed with no order as to costs.
Appeal dismissed.
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