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2013 DIGILAW 5 (CAL)

Raj Grihi Ram v. Anand Kumar Shaw

2013-01-04

ASHOKE KUMAR DASADHIKARI, Subhro Kamal Mukherjee

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Judgment Subhro Kamal Mukherjee, J. The application for review is not in form. Still, we decided to consider the application for review on merits as we feel that it has no substance. 2. Admittedly, the property belongs to a trust. The original plaintiff was the trustee of a trust estate. He died leaving behind him his last will and testament appointing two persons as the trustees to the trust estate. 3. The plaintiff is dead. Therefore, the newly appointed trustees applied for their additions invoking the provisions under Order 22, rule 10 of the Code of Civil Procedure. 4. The learned trial judge allowed such application and directed addition of those newly appointed trustees by order dated March 13, 2009. 5. The appeal against such order of addition by the defendant was dismissed summarily under Order XLI, rule 11 of the Code of Civil Procedure. 6. The defendant files this application for review. 7. Mr. Shyam Sundar Manna, learned advocate for the appellant, strenuously, argues that the application under Order 22, rule 10 of the Code of Civil Procedure was filed after abatement of such suit and, therefore, this was not maintainable. He heavily relies upon a decision in Kedarnath Kanoria and others versus Khaitan Sons and Company reported in AIR 1959 Calcutta 368. 8. He, further, relies upon a single bench decision of the Patna High Court in the case of Devkinandan Lal versus Jogendra Prasad and others reported in AIR 1980 Patna 71. In Devkinandan Lal (supra) the decision of Kedarnath Kanoria (supra) was only followed. 9. The reliance placed on Kedarnath Kanoria (supra) is misplaced. A Division Bench of this Court held where the case was covered by rules 3 or 4 and rule 10 had no application. However, it was observed that the application under Order 22, rule 10 could not be made after the suit has abated. In the case in hand there was no order recording abatement of the suit. Mr. Manna, however, submits that the abatement is automatic and, thus, the application was not maintainable. 10. Rule 10 applies to cases of creation of interest. When there is creation of interest during the pendency of the suit, the suit may be continued by or against the person upon whom such interest has devolved. Such person can apply to the Court for leave to continue the proceedings. 11. 10. Rule 10 applies to cases of creation of interest. When there is creation of interest during the pendency of the suit, the suit may be continued by or against the person upon whom such interest has devolved. Such person can apply to the Court for leave to continue the proceedings. 11. An application for substitution can be made under rule 10 of Order 22 at any time during the pendency of the suit. In such application, it is incumbent on the applicant to state the nature of assignment, transfer, devolution and the party or parties from whom it is claimed. No period of limitation is prescribed for making an application under the said rule. In fact, right to apply under this rule is a continuous right, which accrues every day. An application, therefore, can be made at any time till the proceedings are pending. 12. We may, profitably, refer to the decision of the Supreme Court of India in the case of Shri Rikhu Dev, Chela Bawa Harjug Dass versus Som Dass (deceased) through his Chela Shiam Dass reported in (1976) 1 Supreme Court Cases 103, where the Supreme Court holds that Order 22, rule 10 of the Code of Civil Procedure is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject-matter of the suit has devolved upon another during its pendency, but such a suit may be continued with the leave of the Court by or against the person upon whom such interest has devolved. 13. In Rikha Dev (supra) the Supreme Court of India quoted with approval the decision of the High Court at Madras in the case of Thirumalai Pillai and others –versus- Arunachella Padayachi and others reported in AIR 1926 Madras 540 that a succeeding trustee of a trustee, who filed a suit and, thereafter, died during the pendency of such suit, was not a legal representative of the predecessor in office. It was a case of devolution of interest during the pendency of a suit and the elected person could be added as a party under Order 22, rule 10 of the Code of Civil Procedure notwithstanding that the period of limitation for impleading him had expired 14. It was a case of devolution of interest during the pendency of a suit and the elected person could be added as a party under Order 22, rule 10 of the Code of Civil Procedure notwithstanding that the period of limitation for impleading him had expired 14. The Supreme Court of India in Dhurandhar Prasad Singh versus Jai Prakash University and others reported in (2001) 6 Supreme Court Cases 534 holds that the legislature while enacting rules 3, 4 and 10 has made a clear-cut distinction. In cases covered by rules 3 and 4, if right to sue survives and no application for bringing the legal representatives of a deceased party is filed within the time prescribed the suit abates. The procedure for setting aside abatement of the suit has been prescribed under rule 9 on the grounds postulated therein. In cases covered by rule 10, the legislature has not prescribed any such procedure in the event of failure to apply for leave of the court to continue the proceeding by or against the person upon whom interest has developed during the pendency of a suit, which shows that the legislature was conscious of this eventuality and, yet, has not prescribed that failure would entail dismissal of the suit as it was intended that the proceeding would continue by or against the original party although he ceased to have any interest in the subject of dispute in the event of failure to apply for leave to continue by or against the person upon whom the interest has devolved for bringing him on the record. 15. If the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit, for, mere transfer of the title does not prolong a cause of action. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings. 16. A suit for eviction was instituted. The plaintiff is dead. The new trustees came up with an application under Order 22, rule 10 of the Code of Civil Procedure explaining the circumstances as to how the interest had devolved upon them. 17. The learned trial court, rightly, allowed such application. 16. A suit for eviction was instituted. The plaintiff is dead. The new trustees came up with an application under Order 22, rule 10 of the Code of Civil Procedure explaining the circumstances as to how the interest had devolved upon them. 17. The learned trial court, rightly, allowed such application. There is no limitation to take out an application under Order 22, rule 10 of the Code of Civil Procedure or in the Limitations Act, 1963. 18. In view of the aforementioned discussions we do not find any substance in the application for review. We are of the considered opinion that the petitioner has failed to make out any ground for reviewing the order dated March 13, 2009. 19. The application for review is, therefore, rejected with cost assessed at Rs.5,000/- (rupees five thousand) only. 20. However, we request the learned trial judge to dispose of the suit as expeditiously as possible preferably by June, 2013. Urgent Photostat certified copies of this order be supplied to parties, if applied for. Ashoke Kumar Dasadhikari, J.: I agree.