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Phul Chand v. Khwaja Tahir Husain
Factual and Procedural Background
The appeal arises from a suit for sale on a mortgage executed in 1926 by Tahir Husain in favour of Chharang Ram, who died leaving two sons, Phul Chand and Hansraj. Phul Chand son of Chharang Ram filed the suit, impleading Tahir Husain and Hansraj as defendants, claiming equal shares of the mortgage debt and naming Hansraj as a pro forma defendant. During the suit, another individual named Phul Chand (the applicant) purchased Hansraj's rights in the mortgage and sought to be added as a defendant. The lower court initially granted this application on conditions involving cost payments, but the applicant failed to comply fully and the application was dismissed. Subsequently, a decree was passed in favour of the plaintiff. Tahir Husain appealed, impleading both sons of Chharang Ram as respondents. The applicant then filed an application in this appeal to be made a respondent.
Legal Issues Presented
- Whether the Court has jurisdiction under Rule 10, Order 22 of the Code of Civil Procedure (CPC) to allow the applicant to be impleaded as a respondent in the appeal when the assignment of interest occurred during the pendency of the suit below and not during the appeal.
- Whether the inherent jurisdiction of the Court under Section 151 CPC can be invoked to allow the applicant to be made a respondent despite the procedural bar under Rule 10.
Arguments of the Parties
Applicant's Arguments
- The applicant contended that since a mortgage suit remains pending until the final decree, the pendency of the appeal should be deemed equivalent to the pendency of the suit, thus granting jurisdiction under Rule 10 to implead him as a respondent.
- The applicant further argued that the Court should exercise its inherent jurisdiction under Section 151 CPC to allow him to be made a respondent in the appeal.
Respondent's Arguments
- The learned counsel for the plaintiff-respondent opposed the application on the ground that Rule 10, Order 22 CPC does not permit the Court to entertain the application since the assignment occurred during the pendency of the suit below and not during the appeal.
- It was argued that allowing the application would amount to revising the lower court's order rejecting the application, which was not properly challenged.
- The respondent also contended that the inherent jurisdiction under Section 151 CPC cannot be invoked where a specific remedy exists and where exercising such jurisdiction would complicate the proceedings by introducing issues requiring additional evidence.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court examined the provisions of Rule 10 and Rule 11 of Order 22 CPC, which govern the continuation of suits or appeals by or against persons to whom interests have devolved during the pendency of the suit or appeal. Rule 10 allows continuance only if the assignment occurs during the pendency of the suit, and Rule 11 extends this principle to appeals by substituting the word "appeal" for "suit."
In this case, the assignment to the applicant occurred during the pendency of the suit in the lower court, not during the pendency of the appeal in this Court. Therefore, the Court found no jurisdiction under Rule 10 to implead the applicant as a party to the appeal.
The Court rejected the applicant's argument that the pendency of the appeal should be considered equivalent to the pendency of the suit, noting that the legislature deliberately distinguished between suits and appeals, as evidenced by Rule 11. The appeal is a distinct proceeding aimed at challenging the decree passed in the suit, not a continuation of the suit itself.
The Court further held that the lower court had proper jurisdiction to consider and conditionally grant the applicant's application to be made a defendant in the suit, and the applicant's failure to comply with cost conditions justified dismissal of his application.
Regarding the invocation of inherent jurisdiction under Section 151 CPC, the Court observed that this jurisdiction cannot be exercised where the applicant has an adequate remedy under the Code and has failed to avail it. Additionally, exercising inherent jurisdiction to introduce the applicant as a party would complicate the appeal by raising complex questions requiring additional evidence, which are better suited for separate proceedings.
Holding and Implications
The application by Phul Chand to be made a respondent in the appeal is dismissed with costs.
This decision directly affects the parties by denying the applicant's request to be impleaded as a respondent in the appeal. No new legal precedent has been established, and the ruling reinforces the procedural limitations under Rules 10 and 11 of Order 22 CPC regarding the timing and jurisdiction for adding parties in appeals.
Iqbal Ahmad, J.:— This is an application by one Phul Chand for being arrayed as respondent in first appeal No. 249 of 1933. The appeal arises out of a suit for sale on a mortgage executed in 1926 by Tahir Husain, appellant, in favour of one Chharang Ram. Chharang Ram died leaving two sons, Phul Chand and Hansraj. Phul Chand, the applicant before us, is a person other than Phul Chand son of Chharang Ram.
2. Phul Chand son of Chharang Ram filed the suit giving rise to the present appeal and he impleaded Tahir Husain and his brother Hansraj as defendants to the suit. He alleged in the plaint that he and Hansraj were entitled to the mortgage debt in equal shares and, that Hansraj was being impleaded as a pro forma defendant. During the pendency of the suit in the Court below, Phul Chand, applicant, purchased the rights and interests of Hansraj in the mortgage deed in suit and filed an application in the Court below for being added as a defendant to the suit. On 26th February 1933, the Court ordered that the application be granted on payment of Rs. 50 by Phul Chand applicant to Phul Chand plaintiff on account of the costs of the day. By a subsequent order on the same date, the Court further ordered that Phul Chand be made a defendant to the suit on condition of his paying half of the total costs incurred by Phul Chand plaintiff in filing the suit. The Court fixed 12th April 1933 for the payment of half the costs.
3. Phul Chand, applicant deposited the sum of Rs. 50 but failed to deposit half the costs incurred by Phul Chand plaintiff by 12th April 1933. The Court then dismissed the application of Phul Chand and after recording evidence passed a decree in the plaintiff's favour on the same date, viz., 12th April 1933. Tahir Husain has come up in appeal to this Court and has impleaded Phul Chand and Hansraj, the sons of Chharang Ram as respondents to the appeal. Phul Chand applicant, has, as already observed, filed an application in the appeal to be made a respondent in the appeal.
4. The learned counsel for Phul Chand plaintiff-respondent opposes the application on the ground that in accordance with the provisions of R. 10, O. 22 of the CPC, the application cannot be entertained by this Court, as the assignment in favour of Phul Chand, applicant, by Hansraj was made during the pendency of the suit in the Court below and prior to the filing of the appeal, in this Court. It is further urged by him that to grant the application of Phul Chand applicant, would be in substance to revise the order passed by the Court below rejecting his application, though no appropriate steps to have that order set aside were taken by Phul Chand, applicant. In our judgment the contention of the learned counsel for Phul Chand respondent is well founded and ought to prevail. It is provided by R. 10 that in cases of 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. By R. 11 of O. 22 it is provided that in the application of O. 22 to appeals, so far as may be, the word “plaintiff” shall be held to include an appellant, the word “defendant” a respondent, and the word “suit” an appeal. If we substitute the word “appeal” for the word “suit” in R. 10, the rule runs thus:
“In other cases of assignment, creation or devolution of any interest during the pendency of an appeal, the appeal may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.”
5. In the case before us the assignment in favour of the applicant was during the pendency of the suit in the Court below and not during the pendency of the appeal in this Court. As the assignment in favour of the applicant was not during the pendency of the appeal we have no jurisdiction under R. 10 to implead the applicant as a party to the appeal.
6. It is however argued by the learned counsel for the applicant that as a mortgage suit remans pending till the passing of the final decree in the suit, the pendency of the appeal must the deemed to be tantamout to the pendency of the suit, and as such it is contended by him that we have jurisdiction under R. 10 to implead the applicant as a respondent to the appeal. The obvious answer to this contention is that the word “suit” in R. 10 has been used in contraction to the word “appeal.” That this is so is demonstrated by the provisions of R. 11 that the words “appeal” shall, so far as a may be, be substituted for the word “suit” in the application of the provisions of O. 22 to appeals. If the legislature had intended that the word “suit” in O. 22 should be deemed to include an appeal, it would have been wholly superfluous to enact the provisions of R. 11, O. 22. The appeal before us is not a continuance of the suit filed in the Court below, but is a proceeding taken by the party aggrieved by the decree passed in the suit by the Court below with a view to get rid of that decree.
7. Moreover it cannot be disputed that the Court below had jurisdiction to deal with the application that was filed by the applicant to be made a defendant in the suit. The propriety of the order of the Court below directing that the application be granted conditional on the payment by the applicant of half of the costs incurred by Phul Chand plaintiff also cannot be questioned. To accede to the application of the applicant would be to set aside the order of the Court below rejecting the application of the applicant in consequence of the non-compliance by him of the direction to pay the costs, and this obviously would be unjust.
8. The learned counsel for the applicant further contended that the application should be treated as an application under S. 151 of the Code and that we should, in exercise of our inherent jurisdiction, order the applicant to be made a respondent in the appeal. There are two answers to this contention. In the first place it is not permissible to invoke the inherent jurisdiction of the Court as defined by S. 151, in cases where the applicant has his remedy provided elsewhere in the Code and has neglected to avail himself, of it. In the second place the inherent jurisdiction vested in Courts is to be exercised only to further the ends of justice and not to create complications in a cause by introducing matters, the adjudication of which may be impossible without reception of additional evidence. In the case before us it is alleged by Phul Chand, plaintiff, that he holds a charge over the half share of the mortgage debt due to Hansraj from Tahir Husain and, that in a suit filed by Hansraj against Phul Chand plaintiff it has been decided that he is entitled to realise the mortgage debt due to Hansraj in satisfaction of his claim on the charge created by Hansraj in his favour. The questions whether or not Phul Chand applicant is bound by that decision and, whether or not he is entitled to realise half of the mortgage debt due to Hansraj from Tahair Husain, are questions that are not free from difficulty and cannot, in the absence of adequate materials, be adjudicated in the present appeal. The rights of Phul Chand plaintiff and Phul Chand applicant inter se can appropriately be decided in separate proceedings. It is not permissible therefore in support of the present application, to appeal to the inherent jurisdiction of this Court as defined by S. 151 of the Code. For the reasons given above we dismiss this application with costs.
R.K
9. Application dismissed.
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