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2008 DIGILAW 1255 (JHR)

Biru Sao v. Manoj Kumar Soni

2008-11-12

M.Y.EQBAL

body2008
JUDGMENT : M. Y. Eqbal, J. This application under Article 227 of the Constitution is directed against the order dated 08.3.2007 passed by Additional Munsif, Hazaribagh in Eviction Suit No.02 of 1999 whereby he has rejected the petitioner’s application purported to have been filed under Article XXII, Rule 10 read with Order I, Rule 10 C.P.C. seeking relief to prosecute the suit by adding him as plaintiff No.2 on the ground, inter alia, that during pendency of the suit he had purchased the suit property from the plaintiff-respondent No.2. 2. The facts of lie in a narrow compass: The plaintiff-respondent No.2 filed Eviction Suit No.02 of 1999 against the defendant-respondent No.1 for a decree of eviction on the alleged ground of default, personal necessity, damage and deterioration in the condition of the suit premises. The said suit was decreed ex parte by terms of judgment dated 20.8.1999. Thereafter, the plaintiff levied Execution Case No.02 of 1999 for executing the decree of eviction. In the meantime, defendant-respondent No.1 filed an application under Order IX, Rule 13 C.P.C. for setting aside the ex parte decree being Misc. Case No.06 of 1999. The said Misc. Case was eventually allowed and ex parte decree was set aside on 29.5.2004. In the meantime, the petitioner purchased the suit property from the plaintiff-respondent No.2 by virtue of registered deed of sale dated 03.5.2002. The original defendant-respondent No.1 after the ex parte decree was set aside, contested the suit disputing the facts alleged in the plaint. While the suit was pending, petitioner as a purchaser filed an application on 31.5.2006 purported to be under Order XXII, Rule 10 read with Order I, Rule 10 C.P.C. praying for leave of the Court to prosecute the suit as co-plaintiff by adding him as plaintiff No.2. The defendant did not file any rejoinder to the said application. However, after hearing the parties, in terms of the impugned order dated 08.3.2007, the Court below rejected the petition holding that the presence of the petitioner is not necessary for the purpose of deciding the matter in controversy and further that the provision of Order XXII, Rule 10 C.P.C. is not applicable in the suit. 3. I have heard Mr. P.K. Prasad, learned Senior Counsel appearing for the petitioner and, Mr. R.P. Gupta, learned counsel appearing for the respondent and perused the impugned order passed by the Court below. 4. Mr. 3. I have heard Mr. P.K. Prasad, learned Senior Counsel appearing for the petitioner and, Mr. R.P. Gupta, learned counsel appearing for the respondent and perused the impugned order passed by the Court below. 4. Mr. R.P. Gupta, learned counsel for the respondent, relied upon two decisions of the Supreme Court in the case of Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb and another [(2004) 1 SCC 191) and in the case of Sunil Gupta Vs. Kiran Girhotra and others [ (2007) 8 SCC 506 ]. 5. In the case of Bibi Zubaida Khatoon (supra), the suit for redemption of mortgage and a cross suit for specific performance of agreement to sale were filed in which two applications were filed – one for impleadment as co-plaintiff in one suit and, defendant in the other. Separate applications under Order I, Rule 10, Order XXII, Rule 10 and Order VI, Rule 17 C.P.C. were also filed by the petitioner on the ground, inter alia, that during pendency of the suit, she had purchased the suit property from the original plaintiff and thus, acquired in his place the right of redemption of the mortgage of suit property. The trial Court rejected the petition for joinder of the petitioner in the two suits observing that the property having been purchased during pendency of the suit, the decree passed in the suit shall bind the transferee pendente lite. The Supreme Court dismissed the appeal and observed as under: - “9. It is not disputed that the present petitioner purchased the property during pendency of the suit and without seeking leave of the court as required by Section 52 of the Transfer of Property Act. The petitioner being a transferee pendente lite without leave of the court cannot, as of right, seek impleadment as a party in the suits which are long pending since 1983. It is true that when the application for joinder based on transfer pendente lite is made, the transferee should ordinarily be joined as a party to enable him to protect his interest. But in the instant case, the trial court has assigned cogent reasons for rejecting such joinder stating that the suit is long pending since 1983 and prima facie the action of the alienation does not appear to be bona fide. But in the instant case, the trial court has assigned cogent reasons for rejecting such joinder stating that the suit is long pending since 1983 and prima facie the action of the alienation does not appear to be bona fide. The trial court saw an attempt on the part of the petitioner to complicate and delay the pending suits.” 6. In Sunil Gupta’s case (supra), the question that fell for consideration was as to whether a purchaser of a property belonging to the deceased testator should be impleaded as a party in a probate proceedings. Following the decision rendered in Bibi Zubaida Khatoon’s case (supra), the Supreme Court held that a transferee pendente lite without leave of the Court cannot be impleaded as a party. 7. Mr. P.K. Prasad, learned Senior Counsel appearing for the petitioner, on the other hand, relied upon the decisions of the Supreme Court in the case of Azra Abdulla (Smt) and another vs. M/s. Asiatic Oxygen & Acetylene Co. Ltd. [1995 Supp (4) S.C.C. 398] and in the case of Ram Tahal Modi Vs. Ratan Lal [AIR 1989 Patna 13]. In Azra Abdulla’s case (supra), a suit for eviction filed by the landlord was decreed by the trial Court, but in revision the finding of the trial Court was reversed. The landlord challenged the said order by preferring appeal in the Supreme Court. The ground for eviction inter alia was that the tenant has without the landlord’s consent, erected permanent structure on the suit premises. It appears that during pendency of the suit, the landlord transferred the property to her daughter by way of gift. A question was raised that the reversal of the judgment by the High Court on the ground that present owner of the building was not the owner at the time of filing of suit. Answering the question, the Supreme Court observed:- “4. The High Court in exercise of its revisional power under Section 50 of the Karnataka Rent Control Act reversed the findings of the trial court on two grounds. The High Court held that the present owner of the building was not the owner at the time of filing the suit. The cause of action, according to the High Court, perished with the transfer of property by the previous owner to the present owner. The High Court held that the present owner of the building was not the owner at the time of filing the suit. The cause of action, according to the High Court, perished with the transfer of property by the previous owner to the present owner. It is true that during the proceedings in the High Court, the “landlord”, namely, the mother transferred by a Deed of Gift the premises in question to her daughter who is, therefore, now the present “landlord”. The fact that during the proceedings the property in question was under a deed of gift transferred by the mother to the daughter does not on the facts of the case in any manner affect the cause of action pursued by the present landlord. She is entitled to urge all contentions open to the landlord in respect of her application for ejectment. The finding of the High Court to the contrary, in our view, was wrong. The fairness to counsel for the respondent, it must be stated that this question was not urged at the Bar.” 8. In Ram Tahal Modi’s case (supra), during the pendency of the suit for eviction, the property was transferred. The transferee was allowed to prosecute the suit on the ground of default committed by the tenant in paying rent for the period long before the date of transfer. The transferee also sought amendment of relief portion in respect of such arrears of rent. The Division Bench of the Patna High Court observed: - “14. Could the transferees obtain decree for eviction’? The answer could have been in the affirmative had they been suits to which the Rent Act was not attracted. The Rent Act has put impediment on the right of landlord to evict a tenant from a building. For obtaining decree for eviction, against a tenant it must be proved (1) that the plaintiff is landlord within the meaning of the Rent Act, and (2) must also prove any of the grounds enumerated in S.11(1) which are as many as six in number. From the perusal of the grounds, there is no difficulty in holding that some cause of action or occasion for filing suit are not available to a transferee-pendente lite, for instance eviction on the ground of personal necessity, i.e. S. 11(1)(c). From the perusal of the grounds, there is no difficulty in holding that some cause of action or occasion for filing suit are not available to a transferee-pendente lite, for instance eviction on the ground of personal necessity, i.e. S. 11(1)(c). Again there is no difficulty in holding that some cause of action may be said to be continuing, for instance, breach of condition of tenancy, or subletting without the consent of the landlord or where the condition of the building has materially deteriorated owing to acts of waste or negligence or default of the tenant or on the expiry of period of lease, i.e. Cls. (1), (b) and (e) of Sub-s. (1) of S. 11. The transferee-pendente lite may prosecute the suit if these grounds are available. But can such transferee take advantage of default in payment of rent by tenant, ground stated in S.11(1)(d)?” 9. In the case of Hukum Chand Vs. Om Chand and others [ (2001) 10 S.C.C. 715 ], the fact was that the landlord, after expiry of the period of lease, filed a suit against the tenant seeking relief for settling the amount of compensation of the structure or to remove the structure erected on the suit premises and also for a decree of eviction. The trial Court decreed the suit. In appeal filed by the defendant-tenant, the High Court confirmed the decree passed by the trial Court with certain modification. The tenant preferred a Letters Patent Appeal which was also dismissed. The tenant then moved the Supreme Court. However, during the pendency of the appeal before the high Court, it was brought on record that the landlord after having secured a decree of eviction had sold the property. The submission was made before the Supreme Court that the plaintiff-respondent having parted with his interest in the suit property during the pendency of the appeal, the decree passed in his favour by the trial Court and maintained by the high cannot be sustained and should be set aside. Answering the question, the Supreme Court held: - “9. The submission was made before the Supreme Court that the plaintiff-respondent having parted with his interest in the suit property during the pendency of the appeal, the decree passed in his favour by the trial Court and maintained by the high cannot be sustained and should be set aside. Answering the question, the Supreme Court held: - “9. As to the second contention, we have already pointed out that the appellant tenant has not taken any steps for bringing the transferee or the assignee of the respondent landlord on record in this appeal in spite of his having acquired knowledge as early as in November 1988, of the respondent having transferred his title in the suit property through sale deeds. The sale deeds are registered deeds. The appellant tenant could have obtained copies thereof and placed on record the terms and conditions of the transfer, which has not been done. In the absence of any application under Order 22 Rule 10 CPC having been filed by the appellant tenant and in the absence of the relevant transfer deeds having been brought on record, we are handicapped in determining the terms and conditions of the transfer effected by the respondent landlord. The situation is covered, and is taken care of, by Section 52 of the Transfer of Property Act and Order 22 Rule 10 CPC. The transfer is lis pendens. In case of any assignment or creation of any interest during the pendency of a suit, under Order 22 Rule 10 CPC, 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. The Rule is an enabling one and permissive in nature. A Full Bench of the Patna High Court has held in Mahanth Sukhdeo Das v. Kashi Prasad Tiwari that in spite of a devolution of interest having taken place during the pendency of a litigation, the same can continue. It is for the assignee to appear in the suit at any stage and defend himself with the leave of the court but he cannot seek to be brought on record as of right. The discretion vests in the court. Though ordinarily the leave will not be refused, nevertheless the court would exercise its discretion in granting the leave on the facts and circumstances of a given case. The discretion vests in the court. Though ordinarily the leave will not be refused, nevertheless the court would exercise its discretion in granting the leave on the facts and circumstances of a given case. The tenant having suffered a decree from the High Court, it was for him to make an appropriate application and seek leave of the court for prosecuting appeal against the person in whom the right and title in the suit property has come to vest. It was also open to such transferee pendente lite to seek leave of the court for coming on record. The Full Bench has opined in Sukhdeo Das case that such assignment or devolution of right during the pendency of the litigation did not arrest the progress of the litigation. We agree with the view taken by the Full Bench. In our opinion, the only exception is when the transfer of property forming the subject-matter of the suit, pendente lite, results in wiping out the cause of action itself or deprives the transferee of the right to decree, such as where the cause of action was personal to the original plaintiff. Otherwise the only result is that such transferee steps into the shoes of his predecessor-in-interest and remains bound by the result of the suit and would not, at a later stage, be permitted to raise the plea that he was not bound by the result of the litigation because he was not brought on record of the suit and impleaded as a party. The second contention of the learned counsel for the appellant also fails.” 10. In the instant case, the eviction suit was filed by plaintiff-respondent No.2 for eviction of defendant on the ground of default in payment of rent and also on the ground that he requires the suit premises reasonably in good faith for himself and his family members. Plaintiff also sought eviction on the ground that defendant damaged the major portion of the house in his occupation and thereby contravened the terms of the agreement and is, therefore, liable for eviction on this ground also. 11. So far the ground of non-payment of rent for the period prior to transfer of the suit property is concerned, the transferee cannot prosecute the suit on the same cause of action. 11. So far the ground of non-payment of rent for the period prior to transfer of the suit property is concerned, the transferee cannot prosecute the suit on the same cause of action. Similarly, the transferee cannot prosecute or continue the suit for eviction on the ground of bona fide personal necessity of the plaintiff-vendor. However, so far allegation of breach of terms of tenancy by damaging the building premises is concerned, the transferee pendente lite may with the leave of the Court prosecute the suit. In other words, where the cause of action was not personal to the original plaintiff, the transferee can step into shoes of the transferor. These aspects of the matter have not been considered by the Court below. The impugned order, therefore, cannot be sustained in law. 12. In the result, this application is allowed and the impugned order is set aside. The matter is remitted back to the Court below to consider the application afresh and pass appropriate order in accordance with law.