Koley Properties P Ltd. v. Methai Lal Shaw — 1983 DIGILAW 156 (CAL)

JUDGMENT 1. THIS rule arises out of a judgment and order passed by thee additional District Judge, Alipore on 29.6.82 dismissing an appeal from an order dated 4.11.81 passed by the learned Munsif, Second Court, Sealdah. 2. I may state the facts here in below which led to the passing of the said order by the learned Munsif dismissed in appeal by the 1st Add. District Judge M/s. Koley Properties (Pvt. Ltd.) was the landlord of one batjnath Shaw who was the thika tenant in respect of the premises no. 2/2, Canal east Road, Ultadanga measuring more or less 3 Cottahs and 8 Chittacks of land. He for more then 50 years at a rent of Rs. 73. 70 and the present plaintiffs namely, methailal Shaw Bejoy Kumar Shaw Raj Kumar shaw and Shew Kumar Shaw hereinafter to be referred to as "the said Shaws" are the sons of the said Baijnath. The case of the koley Properties Pvt. Ltd. is that "the said shaws voluntarily abandoned the thicka holding within the meaning of Section 9 of the Thicka Tenancy Act and on 10th November, 1979 an order was made permitting the landlord to re-enter on the said holding in view of voluntary abandonment of the thicka tenant after having defaulted in payment of rent. On 3rd January, 1980 the landlord made an application for execution of the order referred to hereinbefore. On 21st of January, 1980 "the said Shaws" appeared and prayed for filing objection to the said execution. On 28th January, 1980 writ of possession was issued under Order 21, rule 35 of the Code of Civil Procedure. On 30th January, 1980, Nazir handed over the writ of possession to the Bailif of the Court and at 12 noon he made over the possession of the said Premises to the Koley Properties' representative. An application however was made under Section 47 of the code of Civil Procedure for stay of execution by the judgment debtor and an order to that effect was made and the said order was received by the said Nazir at 5 PM on the same date. On 13.12.80 a title suit was filed by Smt. Jasoda Shaw wife of baijnath Shaw and his sons "the said shaws" for declaration and permanent injunction against the Koley Properties Pvt. Lid., the petitioner herein. The said Title Suit no. On 13.12.80 a title suit was filed by Smt. Jasoda Shaw wife of baijnath Shaw and his sons "the said shaws" for declaration and permanent injunction against the Koley Properties Pvt. Lid., the petitioner herein. The said Title Suit no. 45 of 1980 that was filed by "the said shaws and their mother Jasoda was for a declaration that the decree obtained in the thicka tenancy case for possession (Misc. Case No. 99 of 1979) was void on the ground that it was procured by fraud and also for being vitiated by non-service of notice and collusion with the Bailiff "the said Shaws" also prayed for permanent injunction restraining the Koley Properties Pvt. Ltd. from disturbing the possession by the said Koley Properties. 3. ON 30th November, 1980 it is stated that the opposite parties nos. 6, 7 and 8 purchased 5/6th undivided share of the property in suit from the opposite parties nos. 1 to 5 by a registered conveyance. On 17th February, 1981 the said purchasers whose names will appear in the petition filed herein by the Koley Properties as added plaintiffs/opposite parties nos. 6, 7 and 8. The said purchasers made an application under Order 1, Rule 10 of the Code of Civil Procedure for being added as plaintiffs in the said suit No. 45 of 1980. The said application was contested by the Koley properties the learned Munsif, 2nd Court, sealdah who heard the said application allowed the prayer and added them as plaintiffs. It may be mentioned here that the application was made under Order 1, Rule 10 of the Code of Civil Procedure for adding them as parties on the ground of their being assignees by purchase of the said property of the thicka tenancy right, the learned munsif observed "it is the cardinal principle of law that the assignee should be brought on record under Order 22 Rule 10 when applied for though the petitioners have applied for adding them as plaintiffs within the fold of Order 1, Rule 10 I do not find that the other party will be adversely affected if the petitioners' brought on record as plaintiffs under Order 22 Rule 10 of the Code of Civil Procedure. " When objected to by the Koley Properties on the ground that the possession had already vested with them the learned Munsif observed "that it is to be considered on merit during trial. But it cannot debar the petitioners from being parties to the suit at this stage." This order was appealed from and before the learned Additional Judge also it was contended on behalf of the Koley Properties that possession having already been delivered on 30.1.80 to the defendant, the petitioners' prayer for proceeding with the suit should not be entertained and could not be considered. The learned Judge observed "at the time of the trial it will be quiets open to the defendant to challenge the plaintiffs case for declaration and permanent injunction on merits. Parties will be bound by the decision or the suit". He further observed the learned Munsif has rightly allowed the petition for adding the petitioners as plaintiffs nos. 7, 8 and 9 and he dismissed the appeal with costs. 4. MR. Ghosh, learned Counsel for the koley Properties contended before me that the order of the learned Additional District judge affirming the order of the learned munsif is wrong on the following grounds :- "(a) The application under Order 1, Rule 110 of the Code of Civil Procedure is not maintainable in the facts and circumstances of the case. (b) The learned Munsif and the: additional District Judge were wrong for converting the application under order 1, Rule 10 of the Code of Civil procedure to an application under order 22 Rules 10 of the Code of Civil procedure. (c) An application under Order 22, Rule 10 of the Code of Civil Procedure also is not maintainable in the facts and circumstances of this case." The principal point of argument of Mr. Ghosh is that Order 1, Rule 10 of the Code of Civil Procedure excludes the Order 22, rule 10 and as such an application under order 1 Rule 10 cannot be effectively converted to an application under Order 22 rule 10. 5. Ghosh is that Order 1, Rule 10 of the Code of Civil Procedure excludes the Order 22, rule 10 and as such an application under order 1 Rule 10 cannot be effectively converted to an application under Order 22 rule 10. 5. HE contends by analysing the provision of Order 1, Rule 10 that these three subsequent purchasers, becoming so after delivery of possession was given cannot be parties made on the principle that their presence before the Court would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit - He further contended that the real dispute between the parties as made out in the plaint is confined to the fraud perpetuated by the koley Properties against the original plaintiffs Jasoda Shaw and her sons and as such the petitioners cannot in any event be said to be parties necessary or proper and as such the application should have been in limine dismissed. He further contends that the learned Munsif had no right/jurisdiction to convert it to an application under Order 22, Rule 10 of the Code of Civil Procedure as the Order 22 Rule 10 contemplates assignment of any interest during the pendency of the suit. Mr. Ghosh argues that no interest was left in the suit inasmuch as no sooner had delivery of possession was given the proceedings came to an end and as such it cannot be said that assignment was made during the 'pendency of the suit as delivery of possession was given before that date. He further argued that there cannot be any assignment of any interest in view of the fact as soon as delivery of possession was given the judgment debtors ceased to have any interest in the said property which could be assigned and in the absence of such assignable interest Order 22, Rule 10 of the Code of Civil Procedure is not attracted. Mr. Ghosh referred to a division Bench Judgment reported in 42 cwn page 1183 (Jitendra Nath v. Harindra nath) to support his case. It has been observed in the said judgment that Order 22 rule 10 of the Code of Civil Procedure can only apply before a final decree or order has been passed or made in the suit. Therefore, Mr. Ghosh referred to a division Bench Judgment reported in 42 cwn page 1183 (Jitendra Nath v. Harindra nath) to support his case. It has been observed in the said judgment that Order 22 rule 10 of the Code of Civil Procedure can only apply before a final decree or order has been passed or made in the suit. Therefore, Mr. Ghosh contended that as the delivery of possession was given and as nothing was left in the suit question of attracting the provisions of Order 22, Rule 10 of the Code of Civil Procedure does not apply. But in the same judgment Chief justice Derbyshire observed that in a case under order 22, Rule 10, the Court has to look at the position and see what is contemplated and what is likely to happen. In my opinion, that is the cardinal principle in granting or refusing an order in such cases. In the present case under consideration 5/6th interest has been assigned and if the suit filed by "said Shaws" succeed then they would be entitled to get their transferred share in property; moreover, they are very much interested in the suit being properly conducted to safe guard and protect their own interest. If the entire position is viewed with proper perspective in the background of the ultimate result the assignees appear to have substantial and vital interest in the proper continuance of the suit. Mr. Ghosh also referred to me another judgment reported in AIR 1926 Cal. page 173 (Surendra Narain Deo vs. Nityendra Narein and Ors.). In that case however, the assignment was challenged but inspite of that the Division Bench allowed the assignee to be made parties. The Division bench held that under the provisions of order 22, Rule 10 the Court had power to decide the question as to the validity or otherwise of the assignment when an application for substitution was made to the court under Order 22, Rule 10 and Mr. Ghosh contended that the learned Additional District Judge as also the learned munsif acted wrongly and erroneously In adding them as plaintiffs without going through the validity of assignment when the very factum of assignment had been challenged. 6. MR. Ghosh also relied on another Division Bench judgment reported in AIR 1919 (Cal.) p. 323 (Endayali v. Benodini Dutt). Ghosh contended that the learned Additional District Judge as also the learned munsif acted wrongly and erroneously In adding them as plaintiffs without going through the validity of assignment when the very factum of assignment had been challenged. 6. MR. Ghosh also relied on another Division Bench judgment reported in AIR 1919 (Cal.) p. 323 (Endayali v. Benodini Dutt). As a matter of fact that judgment does not lay down that only undisputed assignments are to be recognised under Order 22, Rule 10 of Civil Procedure Code. It only enunciates that primary court has the power to inquire into the question or validity on otherwise assignment. In my view all these judgments enunciate the principle that validity of assignments may be enquired into before leave under Order 22, Rule 10 is given but it is not imperative for the court to do so whenever an assignment is challenged or disputed. The validity of the same may be decided at the time of the trial. The argument of Mr. Ghosh that the learned Munsif and the learned Additional district Judge erred in passing the orders and were not exercising their jurisdiction properly by not making an enquiry into the validity of the said assignment before allowing their application is not also maintainable. In my view the said judgments of the division Bench reported in AIR 1919 and 1926 Calcutta (supra) only hold that Court had power to decide the question of the validity or otherwise of the Assignment but does not say that the Court has got to hold or it must hold an enquiry before such an order impleading them as parties on assignment is made. The Court may direct them to implead as parties subject to their validity of assignment to be proved at the time of the trial. The same principle has been enunciated in another judgment referred to by Mr. Ghosh reported in AIR 1944 Nagpur, page 137 (Neville vs. Preset). Mr. Ghosh further argued that after the delivery of possession was given there was no interest left for assignment except the mere right to sue which cannot be assigned under the provisions of Section 6 of the transfer of Property Act. 7. I cannot reconcile with the argument of Mr. Ghosh. Mr. Ghosh further argued that after the delivery of possession was given there was no interest left for assignment except the mere right to sue which cannot be assigned under the provisions of Section 6 of the transfer of Property Act. 7. I cannot reconcile with the argument of Mr. Ghosh. A transited which is ultimately meant for defeating or delaying the conditions of the transfer is voidable at the option of any person so defeated or delayed but there is nothing in Section 23 of the contract Act which impairs the rights of any transferee in good faith and for consideration. In the present case the transferors have themselves filed suit challenging the decree itself for and the transferees (there is nothing to show that they did not take it bonafide or without consideration) have the right of interest to the property itself and not the suit. Moreover, the validity of such assignment may be gone into the suit itself and Kolay Properties may very well raise that question during the trial. 8. AFTER hearing the rival contentions of the learned Advocates, I am of the view that although Order 22, Rule 10 and Order 1, Rule 10 are the provisions made for different purposes, still Court has the discretion to treat any application under Order 1, Rule 10 as application under Order 22, Rule 10 if it finds that the ingredients of Order 22, Rule 10 are endemic in the application made under Order 1 Rule 10 of civil Procedure Code the Court cannot be said to be without jurisdiction if Court for the interest of justice judicially exercising its mind passes such an order in proper cases. I find here that the learned Munsif has considered the position fully before treating the application under Order 1, Rule 10 to an application under Order 22, Rule 10 of C. P. C. and there is nothing in this to question his jurisdiction under Section 115 of the Code of Civil Procedure as this order cannot be said to be erroneous or defective. The second point of Mr. The second point of Mr. Ghosh is that there is no interest left after delivery of possession excepting the right to sue which also cannot be transferred does not apply in this case in view of the fact that if a decree is passed in favour of the plaintiffs thika tenants in the suit then the transferees (opposite parties herein), have a substantial right in the property itself, and are vitally interested in continuance of the suit in a proper manner and their right to be present in the suit to safeguard their Interest cannot be brushed aside by saying that it was a mere "right to sue" that was assigned. In my view it was not a mere right to sue within the meaning of Section 6 of the transfer of Property Act that was assigned and the tenants had the substantial legal interest in the (property) suit itself to be added as parties. M. Ghosh argued even if the assignees (the present petitioners) are added they must be impleaded as defendants but assignees in my view once added under Order 22, rule 10 of C. P. C. must be on the same side with their assignors in the suit unless the transferees themselves seek to be added as defendants for good cause shown. 9. IN sum, my view is that the order of the learned Munsif and the Additional District Judge affirming the order of the learned Munsif are not without jurisdiction. They have not fallen into error or any defect or irregularity by converting an application under Order 1, Rule 10 of the Code of Civil procedure to an application "under Order 22, rule 10 of the Code of Civil Procedure and one does not exclude the other as argued by Mr. Ghosh but only supplements and the orders are also not vitiated generally by such defects e. g. irregularity, error or lack of jurisdiction either. 10. HENCE it is ordered: The application is rejected. Rule is discharged. No order as to costs. Records be sent down immediately to the Court below; leave under Article 133 (i) of the constitution is prayed for and refused. Mr. Chakraborty asks for stay of the operation of the order as he wants to prefer an appeal, to the Supreme Court. Let "the operation of the order be i stayed for six" weeks. Rule discharged.