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Ram Kumar And Another v. Union Of India
Structured Summary of the Opinion — M.P. Mehrotra, J.
Factual and Procedural Background
This application dated 21 July 1976 was presented purportedly under Order 22 Rule 10, Civil Procedure Code (though mis‑headed as Section 22 Rule 10). The applicant, Mahabir Prasad Gupta, claimed to be an assignee of the entire concern formerly owned by the dissolved firm Radha Krishna Sheo Datt Rai and sought to be impleaded as a party in a pending appeal in the place of the appellants.
The originating civil suit (giving rise to the second appeal) concerned an agreement of about 1917 between the predecessor‑in‑interest of the firm Radha Krishna Sheo Datt Rai and the Oudh & Rohil Khand Railway, whereby the firm was permitted to construct a siding to its mill premises. The firm constructed the siding at its own cost and claimed ownership. It was alleged that the railway was not entitled to connect any other spur siding to the firm's siding for another person's benefit. After the rival concern Shankar (or Shanker) Hydraulic Press was set up, it was alleged the railway improperly joined a spur siding for that rival concern to the firm's siding. The suit sought injunctive relief (prohibitory at first, then mandatory when the rival spur was constructed).
The applicant asserted that after the lower appellate court's decision in 1959 he became the assignee of the firm. The Union of India (respondent) served a notice dated 19 July 1976 alleging that the 1917 agreement and the subsequent 1944 agreement had been determined. The applicant therefore prayed to be permitted to continue the appeal and be impleaded as an appellant.
The Union of India opposed the application by counter‑affidavit, denying any valid assignment and contending that clause 13 of the 1944 agreement rendered any assignment void and ineffective. The Union also contended that the applicant had previously sought to be brought on record as a legal representative (heir) of the deceased Ram Kumar and that the court had refused that prayer; it argued the present application was an attempt to circumvent that earlier order. The applicant filed an affidavit‑in‑rejoinder.
Legal Issues Presented
- Whether an application under Order 22 Rule 10, C.P.C. is governed by any period of limitation, in particular whether the residuary Article 137 of the Limitation Act applies to such applications.
- Whether, on the facts before the court, the applicant is entitled to be impleaded as an assignee under Order 22 Rule 10 — specifically whether an assignment (said to have occurred in 1961) exists and whether it was legally possible in view of clause 13 of the 1944 agreement.
- Whether a court, in summary proceedings under Order 22 Rule 10, must examine ex facie both the factum and legal validity of the alleged assignment before allowing substitution or impleading.
Arguments of the Parties
Applicant's Arguments (Mahabir Prasad Gupta)
- The applicant claimed to be the assignee of the entire concern formerly owned by the dissolved firm and thus sought impleadment in the appeal in place of the appellants.
- He asserted that the assignment took place in 1961 (as the basis for his claim).
- Counsel for the applicant argued that applications under Order 22 Rule 10 are not governed by any rule of limitation and cited a long line of authorities and textbook commentary (Chitaley's Commentary) that treat the right to apply under the rule as accruing from day to day and hence not time‑barred.
- It was contended on the applicant's behalf that the validity of the assignment need not be scrutinised in detail in summary proceedings under Order 22 Rule 10 (because such proceedings are summary in nature).
Respondent's Arguments (Union of India)
- The Union of India denied that any valid assignment in favour of the applicant had taken place.
- It pointed to clause 13 of the 13 May 1944 agreement, contending that any assignment, transfer or permission was void and of no effect — and therefore an alleged assignment would be void.
- The Union contended the application was an attempt to circumvent the court's earlier refusal to bring the applicant on record as a legal representative (heir) of the deceased Ram Kumar; it relied on the procedural history to support that contention.
- On limitation, Union counsel relied on the residuary Article 137 of the Limitation Act and precedent (Chatdradeo Pandey v. Sukhaeo Rai) to contend that Article 137 applies to applications under the Civil Procedure Code and hence a period of limitation must be applied.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chatdradeo Pandey v. Sukhaeo Rai, A.I.R. 1972 All. 504 | Held that Article 137 of the Limitation Act (residuary article) applies to applications under the Code of Civil Procedure; Article 137 should be construed ejusdem generis with other articles dealing with applications under CPC. | The Union relied on this decision to argue that Article 137 governs applications under CPC. The court recorded this authority and its holding as part of the limitation debate. |
| State of U.P. v. Shaikh Asghar (single Judge decision) | Held that where plaintiff died heirless and property escheated to the Government, substitution bringing the State on record under O.22 R.10 is permissible within three years under the residuary article (cited in the opinion). | The Union relied on this single‑judge authority to support application of a three‑year residuary limitation period for substitution. The court noted the authority and its position in the limitation debate. |
| U.P. Sunni Central Board of Waqf v. Khursheed Haider, 1971 A.L.J. 1126 | Stated that Article 137 covers applications and objections under special laws and is not confined only to applications under CPC (per the citation in the opinion). | The court observed this authority but indicated it was not of direct assistance in the present controversy (as part of the discussion of conflicting authorities). |
| J. Lakshmi Bai v. P. Appa Rao, 1969 S.C. 1335 | Supreme Court rulings (along with two other SC cases) that Article 137 cannot be applied to applications under the Industrial Disputes Act because such applications are made to a Tribunal which is not a "court". | The court noted these Supreme Court cases and recorded that they were not of assistance to the present controversy (they speak to a distinct statutory context). |
| State of Bank Hyderabad v. U.A. Bhide, 1970 S.C. 196 | Same principle as above (Supreme Court decision regarding Article 137 and Industrial Disputes Act applications). | Noted by the court as part of authorities that are inapposite to the present question concerning Order 22 Rule 10 under CPC. |
| Nityanand v. L.J.C. of India, 1969 2 SCC 199 | Same principle as above (Supreme Court decision regarding Article 137 and applications to Tribunals). | Recorded by the court but held not to be directly helpful to the present issue. |
| Davisahai v. Govindrao, A.I.R. 1965 M.P. 275 | Recognised that although there may be no rule of limitation for an application under Order 22 Rule 10, an application showing unreasonable delay should not be allowed unless the delay is satisfactorily explained. | Cited by parties; the court accepted the proposition that unexplained delay can bar relief even if no specific limitation period exists. The opinion refers to this authority in support of the proposition that delay matters. |
| Gopalakrishna Naidu v. State, A.I.R. 1971 Mad. 463 | Discussed the question whether there is a period of limitation for an application under Section 151 CPC (cited in debate on limitation). | The court noted this authority among others that debate whether residuary limitation applies; it was part of the survey showing conflicting views in various courts. |
| Beeravu v. Kathiymma, A.I.R. 1973 Ker. 226 | Discussed whether there is a period of limitation for an application under Section 151 CPC (cited in the opinion). | Noted by the court as representing views contrary to the Full Bench decision in 1972 All. 504; included in the catalogue of conflicting authorities. |
| Baijnath v. Mt. Tunkowati, A.I.R. 1962 Pat. 285 | Cited by applicant's counsel as an authority supporting that Order 22 Rule 10 is not governed by limitation. | Included by the court among the cases relied upon by the applicant; the court acknowledged the preponderance of authorities favouring the applicant's contention. |
| Roshan Lal v. Kapur Chand, A.I.R. 1960 Punj. 382 | Cited by applicant's counsel in support of the proposition that there is no limitation for applications under Order 22 Rule 10. | Recorded by the court as one of the authorities relied on by the applicant in the limitation debate. |
| Basistha Narayan v. Sankar Dayal, A.I.R. 1952 Pat. 323 | Cited in the list of cases supporting absence of limitation for Order 22 Rule 10 applications. | Noted by the court as among the precedents advanced for the proposition that such applications are not time‑barred. |
| Binga Sarkar v. Raghbir Singh, A.I.R. 1951 Punj. (Simla) 297 | Cited by applicant's counsel as supporting no limitation for substitution under Order 22 Rule 10. | Recorded in the court's survey of authorities supporting the applicant's position. |
| Bajrang Bahadur Singh v. Rameshwar Baksh Singh, 1950 A.W.R. 563 | Cited among authorities on substitution/Order 22 Rule 10 and limitation (Division Bench authority noted as favouring the applicant's contention in the opinion). | The court observed this Division Bench authority as weighing in favour of the view that no limitation applies; it formed part of the court's consideration of precedent. |
| Naville v. Frasar, A.I.R. 1944 Nag. 137 | Listed among older decisions cited for the proposition that substitution applications under Order 22 Rule 10 are not governed by a specific limitation period. | Included by the court in the catalogue of precedents relied upon by applicant's counsel. |
| Surendra Keshuy Roy v. Khetro Kreshto Mittar, 1903 (30) Cal. 609 | Older authority cited in support of absence of limitation for substitution applications. | Noted among the precedents advanced for the applicant's position. |
| Raini Kanta v. Jyoti Prasad Singh, A.I.R. 1924 Cal. 90 | Cited by applicant's counsel as supporting the proposition that Order 22 Rule 10 applications are not time‑barred. | Recorded in the court's list of authorities favourable to the applicant's contention. |
| Tularam v. Tukalam, A.I.R. 1921 Nag. 32 | Part of the line of earlier cases cited to show that substitution applications may be made at any time. | Noted by the court as one of the authorities relied upon by the applicant. |
| Mst. Lakspati v. Daulat Singh, A.I.R. 1927 Oudh 156 | Included among historic authorities cited for the proposition that substitutions can be sought without a specified period of limitation. | Placed on the court's list of precedents that contributed to the preponderance of authority favouring the no‑limitation position. |
| 1963 All. 357 (single Judge decision referred to in the opinion) | A single Judge pronouncement that took a contrary view (implicitly applying limitation) — the opinion notes the single Judge did not advert to many of the other cases. | The court observed this decision but contrasted it with Division Bench and other precedents that supported the opposite view. |
Court's Reasoning and Analysis
The court proceeded in two broad stages: (1) it examined the preliminary legal question of limitation applicable to an application under Order 22 Rule 10, C.P.C.; and (2) it assessed the merits of the present application on the facts.
On limitation, the court summarized the opposing contentions. The Union's counsel relied on Article 137 of the Limitation Act (residuary article) and authorities such as Chatdradeo Pandey v. Sukhaeo Rai to argue that residuary limitation applies to applications under CPC. The applicant's counsel contended that Order 22 Rule 10 attracts no specific rule of limitation and placed reliance on a long line of decisions and a standard text (Chitaley's Commentary) that the right to move under the rule accrues day‑to‑day and therefore is not time‑barred.
The court candidly acknowledged that the question is not free from difficulty. On first principles the court found it not immediately obvious why the wide ambit of Article 137 should not capture an application under Order 22 Rule 10. The judge expressed doubts about some of the suggested rationales for treating substitution applications as having a recurring cause of action. Nevertheless, after surveying the authorities the court concluded that the preponderance of authorities favoured the view advanced by the applicant (i.e., that no fixed period of limitation applies).
Despite that judicial recognition of the weight of precedent favouring the applicant's contention on limitation, the court declined to alter settled law by referring the issue to a larger bench because, on the facts, the present application failed on its merits. The court emphasized that even though summary proceedings under Order 22 Rule 10 are not meant to be elaborate trials, the court must be ex facie satisfied both on facts and in law that an assignment exists and that it was legally possible. In other words, summary applications must show on their face that the putative substitution or assignment is genuine and legally effective.
Applying these principles to the present case, the court noted several decisive factual and legal points:
- The applicant alleged the assignment occurred in 1961 but produced no documentary proof to substantiate that claim.
- The applicant had sat on his alleged rights for about fifteen years without bringing the assignment to the court's notice, indicating long delay and laches.
- The Union's contention that the present application was an attempt to circumvent earlier orders refusing to bring the applicant on record as heir (the substitution application dated 7 July 1964 was dismissed by Ojha, J., and other subsequent applications to recall or modify that order in 1976 were rejected) was, in the court's view, a correct characterisation supported by the judicial record.
- Clause 13 of the agreement dated 13 May 1944 explicitly provided that any assignment, transfer or permission would be void and of no effect — a contractual bar which, on its face, negatived the possibility of a valid assignment unless shown otherwise.
- Given the absence of supporting documents and the presence of clause 13, the court concluded that the applicant had not established, even on a summary basis, that an assignment had been made and that it was legally possible.
On that basis the court found the application to be "highly belated" and lacking in strength. The court reiterated the standard: summary proceedings require ex facie satisfaction on fact and law before substitution can be permitted; the court therefore rejected the application.
Holding and Implications
HOLDING: The court rejected the application under Order 22 Rule 10, C.P.C. (the application dated 21 July 1976 by Mahabir Prasad Gupta to be impleaded as an appellant/assignee is dismissed). There will be no order as to costs.
Implications:
- Direct effect on the parties: The applicant is not impleaded in the appeal and his application is dismissed; the Union of India's opposition succeeded on the facts and the court's assessment of the legal bar under clause 13 and the applicant's unexplained delay.
- On precedent and broader law: The court recognized a preponderance of authorities favouring the proposition that Order 22 Rule 10 applications are not strictly governed by a specific limitation period, but did not decide the broader legal controversy finally or lay down a new precedent. The judge expressly declined to refer the limitation question to a larger bench because, on the merits, the present application failed. Thus no new legal rule was established by this order; the decision operates as a dismissal on the factual and summary legal basis presented.
Note: This summary is confined strictly to the material contained in the provided opinion and does not add information from outside sources.
M.P Mehrotra, J.:— This application dated 21st July, 1976 purports to be under Order 22 rule 10 C.P.C (though it is wrongly headed as section 22 rule 10 C.P.C). The application has been moved by one Mahabir Prasad Gupta s/o Late Shri Gopal Lal Gupta claiming that he is an assignee and, therefore, he seeks to be in pleaded as a party in the appeal in place of the appellants. The brief allegations in the application are these: The suit giving rise to the instant second appeal was filed on the allegations that on an agreement entered into the year 1917 between the predecessor-in-interest of firm Radha Krishna Sheo Datt Rai and Oudh and Ruhel Khand Railway the firm was permitted to construct an assistant and spur siding on the maim line to he Mill premises of the firm. The firm constructed the siding on its owe costs and was the owner thereof. The railway was not entitled to ??? any other spur siding with the said firm siding for the benefit of any other person Shankar hydraulic Press was a rival concern set up after the said agreement and the railway in contravention of the agreement afore the said joined the siding of the firm with a spur siding constructed for the benefit of the said rival firm, Shanker Hydraulic Press. The relief which was sought in the suit was for a prohibitory injunction in the beginning and when the disputed spur siding was constructed a relief of mandatory injunction was claimed for the removal of the spur siding. It is alleged that after the decision of the lower appellate court in 1959 certain developments took place, the effect of which was that the applicant became the assignee of the entire concern owned by the dissolved firm Radha Krishan Sheo Datta Rai. It is said that the respondent, Union of India, has served notice dated July 19, 1976. alleging’ that the agreement of 1917 and the subsequent agreement of 1944 stood determined. On the basis of the said facts the applicant prayed that he might be permitted to continue the appeal and he should be impleaded as an appellant in the appeal.
2. The application has been opposed by the Union of India. It has filed a counter-affidavit wherein it has been contended that in fact there was no assignment as claimed by the applicant and that no assignment was validly possibly in view of clause 13 of the agreement relating to the main siding. Therefore, the alleged assignment, even if a fact, would be void and ineffective.
3. It has also been contended that the applicant, Mahabir Prasad Gupta, sought to be brought on record as a legal representative of the deceased, Ram Kumar, but his prayer was rejected by the Court. This application is said to be an attempt to circumvent the order of the Court refusing to bring on record the applicant, Mahabir Prasad, as an heir of the deceased appellant, Shri Ram Kumar. An affidavit-in-rejoinder has been filed on behalf of the applicant.
4. The first question which has arisen in these proceedings is whether the afforesaid application under Order 22 rule 10 is hit by the rule of limitation. Learned counsel for the Union of India, Shri Vinod Swarup, contended that the residuary Article 137 would be applicable to every application under the Civil Procedure Code for which no specific period of limitation is prescribed under soine other article of the Limitation Act. He placed reliance on Chatdradeo Pandey v. Sukhaeo Rai . A.I.R 1972 All. 504. where is has been laid down as under:
“Article 137 of the limitation Act, 1963 being a residuary article must be construed ejusdem generis with other articles dealing with applications and ??? most of other articles deal with applications under the Code of Civil Procedure, Article 137 should also be held to apply to applications under that Code.
The application for substitution of heirs in a revision is an application under section 151 Civil Procedure Code and hence the period of Limitation or banging the heirs of deceased opposite party in revision is three years under this article.
5. Learned counsel also placed reliance on State of V.P v. Shaikh Asghar, 2 where a learned single Judge has laid down as under:
“Where it is found that the plaintiff died heirless and that the property has escheated to the Government the court should allow the substitution, bringing the State Government on record as plaintiff not as a legal representative but as a person upon whom the interest of the plaintiff devolved under O. 22 Rule 10, C.P.C This can be done within three years under the residuary article 181 and not within 90 days under article 176.”
6. Learned counsel also referred to U.P Sunni Central Board of Waqf v. Khursheed Haider . 1971 A.L.J 1126.; J. Lakshmi Bai v. P. Appa Rao . 1969 S.C 1335.; State of Bank Hyderabad v. U.A Bhide . 1970 S.C 196. and Nityanand v. L.J.C of India . 1969 2 SCC 199. They do not seem to be of assistance in the present controversy. In 1971 A.L.J 1126 it was laid down that Article 137 covers in its ambit applications and objections under special laws and that it is not confined only to applications under C.P.C In the aforesaid three Supreme Court cases the Supreme Court ruled that Article 137 cannot be applied to applications under the Industrial Disputes Act because these applications are made to Tribunal which cannot be deemed to be “court”. Shri Vinod Swarup lastly placed reliance on Davisahai v. Govindrao . A.I.R 1965 M.P 275. where it has been laid down that even though there is no rule of limitation in respect of an application under Order 22 rule 10 C.P.C, if the applicant has been guilty of unreasonable delay his application should not be allowed unless delay is satisfactorily explained. In fairness, learned counsel also brought to my notice Gopalakrishna Naidu v. State . A.I.R 1971 Mad. 463. Beeravu v. Kathiymma . A.I.R 1973 Ker. 226. which have discussed the question whether there is a period of limitation for an application under section 151 C.P.C and the said courts have taken the view contrary to the one which was laid down in the aforesaid Full Bench decision of this Court reported in 1972 All. 504 (supra). Learned senior counsel for the applicant, Shri Rajeshwari Prasad, contended that there was a long catena of case law which has consistently taken the view that an application under Order 22 rule 10 C.P.C is not governed by any rule of limitation and, therefore, Article 137 would not be applicable. He has placed before me Chitaley's Commentary on Civil Procedure Code, 8th Edn. 1972, Vol. III page 837, Note 22 where it has been laid down as under:
“The right to make an application under this rule is a right which accrues from day to-day. There is, therefore, no limitation for the applications which can be made at any time.”
The cases relied on are as follows:
1. Baijnathv. Mt. Tunkowati, A.I.R 1962 Pat. 285.
2. Davisahai v. Govindrao A.I.R 1965 M.P 275.
3. Roshan Lal v. Kapur Chand, A.I.R 1960 Punj. 382.
4. Basistha Narayan v. Sankar Dayal, A.I.R 1952 Pat. 323.
5. Binga Sarkar v. Raghbir Singh, A.I.R 1951 Punj. (Simla) 297.
6. Bajrang Bahadur Singh v. Rameshwar Baksh Singh, 1950 A.W.R 563.
7. Naville v. Frasar, A.I.R 1944 Nag. 137.
8. Surendra Keshuy Roy v. Khetro Kreshto Mittar, 1903 (30) Cal. 609.
9. Raini Kanta v. Jyoti Prasad Singh, A.I.R 1924 Cal. 90
10. Tularam v. Tukalam, A.I.R 1921 Nag. 32 and
11. Mst. Lakspati v. Daulat Singh, A.I.R 1927 Oudh 156.
7. It must be conceded that the matter is not free from difficulty. On first principles it may not be easily comprehensible as to why the wide am bit of Article 137 should not take in an application under Order 22 rule 10 C.P.C Some of the suggested reasons why there is no rule of limitation for such an application are also not easily comprehensible. To say that the cause of action acrues from day to day during the pendency of the suit or in other words, to suggest that there is recurring cause of action also is highly debatable. If a person claims on the basis of assignment, the cause of action is based on the particular transaction of assignment. It is difficult to say that the cause of action based on such assignment is a recurring cause of action. Such a view must lead to the position that if a sale deed is sought to be affirmed or questioned in a regular suit then it should be held that there is a recurring cause of action for such a suit. I do not think that in any case it has been so held that in a suit where a plaintiff seeks the affirmance or the repudiation of a sale-deed, the cause of action is a recurring one. Despite these doubts and misgivings in my mind, I must concede that the preponderance of authorities is in favour of the contention which has been raised by Shri Rajeswari Prasad. As against the single Judge pronouncement reported in 1963 All. 357 there is the Division Bench authority of Bajrang Bahadur Singh v. Rameshwar Baksh Singh, 10 In 1963 All. 357 the learned single Judge did not advert to these cases. It might be argued that it is a situation where the doctrine of stare decis is should be allowed to come into play and, therefore, no disturbance should be caused to the settled law by taking a contrary view. In a situation like this I would have thought of directing the papers of this case to be placed before the Hon. the Chief Justice for constituting a larger Bench to consider this controversy but as on merits I have felt that this application lacks in strength, I am not taking recourse to that course. It is obvious that the instant application is highly belated. The applicant's claim is that the assignment in question took place in 1961. Apart from the fact that no document has been placed before the Court which would substantiate the applicant's claim, it is obvious that he sat by for the last fifteen years and never thought of bringing it to the notice of the court that he was claiming on the basis of an assignment. The Union of India's allegation that this application has been moved only with a view to get rid off the Court's order refusing to allow the applicant to be brought on record as an heir of the deceased. Ram Kumar, seems to be correct. A reference to the order-sheet of the Court discloses that an attempt was made to get rid off the order dated 9th February 1976 whereb) the substitution application dated 7th July, 1964 was dismissed by Ojha, J. and the appeal was held to have abated against the appellant no. 1. An application dated 22nd, March, 1976 was made for recalling the aforesaid order dated 9th February, 1976. This applcation was, however, rejected by Ojha. J. on 30th March, 1976. Subsequently, another application dated 15th April, 1976 was made where by a modification of the order dated 9th February, 1976 was sought. The said application was also rejected on 18th May, 1976. Thereafter the instant application was moved by Mahabir Prasad Gupta seeking to be brought on record as an assignee under Order 22 rule 10 C.P.C after the applicant had failed in his aforesaid attempt to get rid off the Court's aforesaid order dated February 9, 1976. I do not think that in the facts and circumstances of the case, the applicant should be allowed to fall back on the alleged assignment which is said to have taken place in 1961 when his subsequent attempts to be brought on record as an heir of the appellant no. 1 failed. Further the agreement between the parties clearly shows that the assignment was possible. Clause 13 of the agreement dated 13th May, 1944 very clearly lays down that any assignment, transfer or permission shall be void and of no effect. It was contended on behalf of the applicant that the validity of the assignment was not to looked into while considering an application under Order 22 rule 10 C.P.C It is true that these proceedings under Order 22 rule 10 are not meant to be long-drawn out proceedings wherein the validity of a transaction is to be governed in detail. Such proceedings are summary in nature. Yet before an application can be allowed, the court must be ex facie satisfied both on fact and in law that an assignment has, in fact, been made and that it was in law possible for an assignment to be made. A summary decision under Order 22 rule 10 may not be final and conclusive and may be liable to be questioned in a regular suit. I am giving no concluded opinion on that point but it seems to me clear that before an application can be allowed the court is bound to look into the factum as well as the validity of the transaction. In my opinion, taking into consideration all these aforesaid facts and circumstances this application is liable to be rejected and I hereby reject the application. There will be no order as to costs.
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