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2015 DIGILAW 1046 (KAR)

PUSHPAREKHA v. ABHIRAMI SRIKANTH

2015-09-04

A.N.VENUGOPALA GOWDA

body2015
ORDER : The respondent Nos.1 and 2, as the plaintiffs, have on 15.11.2010, filed a suit for ejectment, in respect of all that part and parcel of Flat No.2, eastern portion of the first floor, in the building known as “Kamakshi Kourt”, built on property bearing No.380, 13th Cross, Sadashivanagar, Bengaluru – 560 080 against the respondent No.3 – M/s. Concord Marketing and Services Pvt. Ltd., to pass a decree directing the defendant to quit, vacate and deliver the vacant physical possession of the suit premises and for payment of damages. 2. The respondent No.3, as the sole defendant, has filed the written statement. The respondent Nos.1 and 2 sold the suit property by a registered sale deed dated 18.09.2013 in favour of the petitioner. The petitioner filed an application on 07.01.2014, under Order XXII Rule 10 of the Civil Procedure Code, 1908 to permit her to continue the suit in place of the plaintiffs by stating that the interest in the plaint schedule property has devolved upon her by virtue of the purchase as per the said sale deed. The Trial Judge has dismissed the application filed for substitution of the name of the petitioner, in place of the plaintiffs. Assailing the said order this writ petition was filed. 3. The Trial Judge has rejected the application for substitution, mainly on the ground that the defendant has not only denied the jural relationship of landlord and tenant but also has challenged the important aspect of termination of tenancy and the burden is upon the plaintiff to prove the issues and the plaintiff having led the evidence, the suit is at the stage of defendant’s evidence and that the applicant has not produced any record except the sale deed to show the attornment of tenancy and in the absence of attornment of tenancy and in view of the recital in the registered sale deed regarding the delivery of the possession, the applicant cannot step into the shoes of the plaintiffs and that the purchaser, pendente lite, is bound by the decree passed against her vendors and she cannot as of right be impleaded in the suit for ejectment. 4. Sri D. Prabhakar, learned advocate, by placing reliance on the decisions in (1) (1990) 1 SCC 252 (Subhash Chandra Vs. Mohammad Shariff and others); (2) (2009) 5 KCCR 3816 (A.S. Krishna Murthy Vs. 4. Sri D. Prabhakar, learned advocate, by placing reliance on the decisions in (1) (1990) 1 SCC 252 (Subhash Chandra Vs. Mohammad Shariff and others); (2) (2009) 5 KCCR 3816 (A.S. Krishna Murthy Vs. C.N. Revanna) and (3) (2005) 11 SCC 403 (Amit Kumar Shaw and another Vs. Farida Khatoon and another), contended that the Trial Judge has fallen in grave error in refusing to allow the application for substitution of the petitioner in place of the plaintiffs. He contended that the impugned order being perverse and illegal is liable to be quashed and the application filed in the Trial Court allowed. 5. Sri Y.K. Narayana Sharma, learned advocate for the respondent No.3, on the other hand, made submissions in support of the impugned order and sought dismissal of the petition. 6. Perused the petition and considered the rival contentions. The point for consideration is, “whether the Trial Judge has committed error by rejecting the petitioner’s application for substitution?” 7. Order 22 Rule 10 CPC reads as under: “10. Procedure in case of assignment before final order in suit.- (1) In other cases of an 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. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of subrule (1).” 8. A simple reading of the above provision would show that in case 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. 9. In the present case, suit for ejectment was filed on 15.11.2010. Written Statement contesting the suit was filed on 10.02.2011. Plaintiffs sold the property to the petitioner, as per the registered sale deed dated 18.09.2013. Name of the petitioner has been entered in the revenue records of the BBMP and she has paid the property tax. Application under Order XXII Rule 10 CPC was filed by the petitioner on 07.01.2014. Thus, the petitioner has stepped into the shoes of the plaintiffs. Name of the petitioner has been entered in the revenue records of the BBMP and she has paid the property tax. Application under Order XXII Rule 10 CPC was filed by the petitioner on 07.01.2014. Thus, the petitioner has stepped into the shoes of the plaintiffs. The said assertion has not been denied by filing statement of objections to the application filed on 07.01.2014. 10. In Amit Kumar Shaw(supra), Apex Court has held, that under Order XXII Rule 10 CPC, “no detailed inquiry at the stage of granting leave is contemplated and the Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against person on whom the interest has devolved by assignment or devolution and that the question about existence of validity and assignment or devolution can be considered at the time of final hearing of the proceedings”. It has been made clear that “the Court has to only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit”. 11. It is trite that an alienee pendente lite is bound by the final decree that may be passed in the suit and that such alienee can be brought on record both under Order XXII Rule 10, as also under Order 1 Rule 10 of CPC. In the aforesaid decision, Apex Court has held that “Since under the doctrine of lis pendens, a decree passed in the suit during the pendency of which transfer is made bind the transferee, his application to be brought on record, should normally be allowed”. It has been further held therein, as under: “16. The doctrine of lis pendens applies only where the lisis pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendentelitecan be added as a proper party if his interest in the subject matter of the suit is substantial and not just peripheral. A transferee pendenteliteto the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. A transferee pendenteliteto the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order XXII Rule 10 an alienee pendentelitemay be joined as party. As already noticed, the Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The Court has held that a transferee pendenteliteof an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessorininterest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case. (emphasis is supplied) 12. In DHURANDHAR PRASAD SINGH Vs. JAI PRAKASH UNIVERSITY AND OTHERS, (2001) 6 SCC 534 , while considering the question, whether an application under Order XXII Rule 10 of CPC seeking leave of the Court is required to be filed by that person alone, upon whom interest has devolved during the pendency of the suit, nobody else?, Apex Court has held as follows: “26. The plain language of Rule 10 referred to above does not suggest that leave can be sought by that person alone upon whom the interest has devolved. It simply says that the suit may be continued by the person upon whom such an interest has devolved and this applies in a case where the interest of plaintiff has devolved. Likewise, in a case where interest of the defendant has devolved, the suit may be continued against such a person upon whom interest has devolved, but in either eventuality, for continuance of the suit against the persons upon whom the interest has devolved during the pendency of the suit, leave of the court has to be obtained. Likewise, in a case where interest of the defendant has devolved, the suit may be continued against such a person upon whom interest has devolved, but in either eventuality, for continuance of the suit against the persons upon whom the interest has devolved during the pendency of the suit, leave of the court has to be obtained. If it is laid down that leave can be obtained by that person alone upon whom interest of a party to the suit has devolved during its pendency, then there may be preposterous results as such a party might not be knowing about the litigation and consequently not feasible for him to apply for leave and if a duty is cast upon him then in such an eventuality he would be bound by the decree even in cases of failure to apply for leave. As a rule of prudence, initial duty lies upon the plaintiff to apply for leave in case the factum of devolution was within his knowledge or with due diligence could have been known by him. The person upon whom the interest has devolved may also apply for such a leave so that his interest may be properly represented as the original party, if it ceased to have an interest in the subjectmatter of dispute by virtue of devolution of interest upon another person, may not take interest therein, in ordinary course, which is but natural, or by colluding with the other side. If the submission of Shri Mishra is accepted, a party upon whom interest has devolved, upon his failure to apply for leave, would be deprived from challenging correctness of the decree by filing a properly constituted suit on the ground that the original party having lost interest in the subject of dispute, did not properly prosecute or defend the litigation or, in doing so, colluded with the adversary. Any other party, in our view, may also seek leave as, for example, where plaintiff filed a suit for partition and during its pendency he gifted away his undivided interest in the Mitakshara Coparcenary in favour of the contesting defendant, in that event the contesting defendant upon whom the interest of the original plaintiff has devolved has no cause of action to prosecute the suit, but if there is any other cosharer who is supporting the plaintiff, he may have a cause of action to continue with the suit by getting himself transposed to the category of plaintiff as it is well settled that in a partition suit every defendant is a plaintiff, provided he has cause of action for seeking partition. Thus, we do not find any substance in this submission of learned counsel appearing on behalf of the appellant and hold that prayer for leave can be made not only by the person upon whom interest has devolved, but also by the plaintiff or any other party or person interested.” (emphasis is supplied) 13. In the present case, the registered sale deed of the suit property having been produced and katha of the suit property having been transferred and the assertions made in the application with regard to the purchase of suit property and the devolution of interest having not been denied by filing statement of objections, the petitioner being a transferee, pendente lite, should be made as a party to the pending suit. The Trial Judge has committed a grave error in not allowing the application for substitution filed by the petitioner. 14. Presence of the petitioner is absolutely necessary in order to decide the suit in accordance with law. The impugned order is contrary to the propositions of law laid down by the Apex Court in the case of Amit Kumar Shaw (supra) and thus, cannot be sustained. In the result, petition is allowed and the impugned order is quashed. Application filed in the Trial Court on 07.01.2014, under Order XXII Rule 10 CPC is allowed. The cause title of the case be amended on the next hearing date of the suit. All the contentions of both parties in the suit are left open. No costs.