Order
1. The only question raised before this Court is whether the High Court has correctly upheld 2007 SCC OnLine Raj 52, AIR 2008 Raj 1 the order of the learned Single Judge allowing the application filed under Order 22 Rule 10 of the Code of Civil Procedure by Respondent 1 Society.
2. Mr Puneet Jain, learned counsel appearing on behalf of the petitioners submitted that the High Court ought to have dismissed the application since the application had been filed before the Court after long delay. In support of his submissions he relied upon the following decisions of this Court: Raj Kumar v. Sardari Lal (2004) 2 SCC 601, Amit Kumar Shaw v. Farida Khatoon (2005) 11 SCC 403, Vidur Impex & Traders (P) Ltd. v. Tosh Apartments (P) Ltd. (2012) 8 SCC 384, Bibi Zubaida Khatoon v. Nabi Hassan Saheb (2004) 1 SCC 191 and Thomson Press (India) Ltd. v. Nanak Builders & Investors (P) Ltd. (2013) 5 SCC 397
3. We have duly taken note of these decisions and it appears to us that in Raj Kumar v. Sardari Lal (2004) 2 SCC 601 this Court has held that in case of an assignment, creation or devolution of any interest during the pendency of any suit, Order 22 Rule 10 CPC confers a discretion on the court hearing the suit to grant leave to the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a lis pendens transferee on record is not as of right but is the discretion of the court.
4. We have also noticed that in Amit Kumar Shaw v. Farida Khatoon (2005) 11 SCC 403 this Court has held that it is not necessary to make a detailed enquiry at the stage of granting leave under Order 22 Rule 10 CPC. The Court at that point of time has 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. The question about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings.
5. In Vidur Impex & Traders (P) Ltd. (2012) 8 SCC 384, Bibi Zubaida Khatoon (2004) 1 SCC 191 and Thomson Press (India) Ltd. (2013) 5 SCC 397 this Court though dealt with impleadment under Order 22 Rule 10 CPC and Section 52 of the Transfer of Property Act the said decisions do not apply to the facts of this case. Therefore, the judgments cited by Mr Jain, in our opinion, cannot help him in the attendant facts and circumstances.
6. Mr Sanjib Sen, learned Senior Counsel appearing for Respondent 1 Society submitted that in a case under Order 22 Rule 10 CPC, where rights are derived by an assignee or a successor-in-interest pending litigation, it is for that assignee or transferee to come on record if he so chooses and to defend the suit. In support of his submission he relied on the decisions of this Court in State of Orissa v. Ashok Transport Agency (2005) 1 SCC 536 and Dhurandhar Prasad Singh v. Jai Prakash University (2001) 6 SCC 534 and pointed out that under Order 22 Rule 10, the right of the assignee and/or the successor-in-interest will continue when there has been a devolution of interest during the pendency of a suit. The suit can, by leave of the Court, be continued by or against the persons upon whom such interest has devolved and this entitles the person who has acquired interest in the subject-matter of a litigation by assignment or creation or devolution of interest pendente lite or any other person in interest, to apply to the Court for leave to continue the suit.
7. Mr Sanjib Sen further contended that no period of limitation is prescribed under Order 22 Rule 10 CPC. In fact the right to apply under this Rule is a continuous right and application can therefore be made at any time till the proceedings are pending. He further contended that the question of delay/laches or setting aside abatement of suit arises only where the case falls under Order 22 Rule 3 or Rule 4 and not where the case is covered by Rule 10. According to him, it is the discretion of the Court and if the Court is prima facie satisfied with the facts so pleaded before the Court, it can allow such application.
8. We have further noticed that in Baijnath Ram v. Tunkowati Kuer 1962 SCC OnLine Pat 5, AIR 1962 Pat 285 the Full Bench of the Patna High Court has held: (SCC OnLine Pat para 15)
“15. … Another thing to notice in connection with this rule is that a party on whom the interest of the deceased plaintiff or defendant devolves is not entitled to continue the suit or appeal as a matter of right, it is essential to obtain the leave of the Court. The granting of leave is within the discretion of the Court. The Court, however, is to exercise its discretion judicially and according to well-established principles. Further, unlike Rules 3 and 4, no limitation is prescribed for presentation of an application under this rule and no penalty is laid down for failure to substitute the person on whom the interest of the deceased plaintiff or defendant was devolved. Therefore, the right to make an application under this rule is a right which accrues from day to day and can be made at any time during the pendency of a suit. There is no abatement under this rule.”
(emphasis supplied)
9. Accordingly, we find that the High Court, after considering the facts and circumstances of this case, has correctly come to the conclusion in the matter and we do not have any room to interfere with the order so passed by the High Court. Accordingly, the special leave petition is dismissed.