1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5822 OF 2009 1 Chhaya Govind Rasa 2 Bharat Chandrakant Sawant 3 Santosh Sitaram More ...Petitioners vs. 1 Bajirao Mahadu Potekar 2 Bhagwan Shivram Shinde (since deceasd through Lrs.) 2a Dattatraya Bhagwan Shinde 2b Laxman Bhagwan Shinde 2c Nana Bhagwan Shinde 2d Santosh Bhagwan Shinde 2e Kusum Baban Koratkar 2f Sushila Tanaji Ingavale-Deshmukh 2g Malan Madhukar Koratkar 2h Jayashree Sambhaji Jadhav 2i Sandeep Dolatrao Jadhav 2j Keshar Manikrao Gaikwad ...Respondents Mr.G.S.Godbole i/b Ms Pallavi Dabholkar for the petitioners Mr.K.B.Sonwalkar for respondent no.1 CORAM :A.S.OKA,J DATE ON WHICH SUBMISSIONS ARE HEARD :FEBRUARY 11, 2010 DATE ON WHICH JUDGMENT IS PRONOURNCED:MARCH 12, 2010. JUDGMENT: 1 By this writ petition under Article 227 of the Constitution of India, the petitioners who are the third parties in the pending Civil Appeal have taken an exception to the order dated 16th march 2009 passed by the learned District Judge. The Respondent Nos.2A to 2J are the legal 2 representatives of the original plaintiffs. The first respondent is the original defendant. The plaintiff filed a suit for partition and separate possession in respect of the immoveable property bearing Gat no.512 situated at Dahigaon, Taluka Malshiras, District Solapur. The suit was contested by the first respondent(original defendant) and the same was dismissed. The legal representatives of the plaintiff (Respondent nos.2A to 2J) preferred an Appeal before the District Court. In the pending appeal, petitioners made an application at Exhibit-34. The petitioners pointed out that on 17th February 2006 petitioners have purchased the share of the original plaintiff in the suit property. There were three separate sale deeds executed by the original plaintiff in favour of the petitioners. A prayer was made by the petitioners that they be impleaded as the appellants in the pending appeal in place of original plaintiffs (Respondent Nos.2A to 2J herein). By the impugned order, the learned District Judge held that the deceased original plaintiff did not seek any permission of the Court before selling his share during the pendency of the appeal. The learned District Judge observed that the transactions in favour of the petitioners were hit by section 52 of the Transfer of Property Act,1882 (hereinafter referred to as “the said Act of 1882”) and therefore they are not entitled to impleaded as parties. 2 The learned counsel for the petitioners in support of the petition submitted that the petitioners have stepped into shoes of the original plaintiff by virtue of sale deeds executed in their favour. He submitted that if the transfer had taken place during the pendency of the suit, the petitioners could have always applied under Rule 10 of Order XXII of the Code of Civil Procedure,1908 (hereinafter referred to as the said 3 Code) for substituting their names in place of the plaintiff. He also invited my attention to section 146 of the said Code. He placed reliance on the decision of the Apex Court in case of Smt.Saila Bala Dassi vs. Nirmala Sundari Dassi and another (AIR 1958 SC page 394). He also invited my attention to the decision of the Apex Court in case of Amit Kumar Shaw and another Vs. Farida Khatoon and another [(2005) 11 SCC 403]. He submitted that even assuming that bar of section 52 of the said Act of 1882 is attracted, there is no absolute prohibition on the transferees being joined as a proper party to the litigation if the interest of the transferee in the subject matter of the suit is substantial. He submitted that the Court has discretion to permit impleadment of such parties. He submitted that now the legal representatives of the original plaintiffs may not be interested in prosecuting the appeal as they have no right, title or interest in the suit property. He submitted that therefore, prayer was made for substituting the petitioners in their place. He also invited my attention to the certain observations made by this Court in case of Bakerbeg s/o Subhanbeg and another Vs. Shrikant s/o Laxminarayanan Zanwar and others [2008 (5) Mh.L.J. 883). He submitted that the legal representatives of the original plaintiff have not raised any objection to the application. He submitted that the application ought to have allowed. 3 The learned counsel for the first respondent relied upon the decision of the Apex Court in case of Bibi Zubaida Khatoon Khatoon Vs. Nabi Hussan Saheb and Another [(2004 1 SCC 191]. He submitted that the petitioners being transferees pendente lite , as a matter of right, they are not entitled to be impleaded as a party. Relying upon the decision of Allahabad High Court in the case of Shahzad Ahmad Khan and others 4 Vs. Mohammad Ahmad and others [2008 (3) ALJ 191], he submitted that the petitioners have taken the property with full knowledge of pendency of the appeal and of the fact that the suit filed by their predecessor has been dismissed. He submitted that even under Rule 10 of Order XXII of the said code impleadment cannot be allowed. He submitted that the Appellate Court has passed a discretionary order which calls for no interference in writ jurisdiction under Article 227 of the Constitution of India. 4 I have given careful consideration to the submissions. The original plaintiff Bhagwan filed a suit for partition claiming ½ share in the suit property. The suit was dismissed on merits by holding that the original plaintiff could not establish his ½ joint share in the suit property. The suit was dismissed on 29th June 2005. An appeal was preferred on 22nd November 2005. There were 3 sale deeds executed by the original plaintiff in favour of the petitioners herein on 17th February 2006. It must be noted that the first respondent (original defendant) filed a suit against the petitioners in the year 2006 alleging that on the basis of the sale deeds dated 17th February 2006, the present petitioners made an attempt on 26th March 2006 to dispossess the first respondent. Therefore, the prayer in the said suit filed by the first respondent is for perpetual injunction. It is alleged in the said suit that the sale deeds executed in favour of the petitioners are illegal in as much as the original plaintiff had no right, title or interest in the suit property. The said suit for injunction is pending. 5 Rule 10 of Order XXII of the said Code reads thus : 5 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 sub-rule (1). It must be stated here that Rules 2, 3 and 4 of Order XXII of the said Code deal with devolution of interest on the death of parties to the suit. Rule 10 deals with the cases assignment , creation and devolution of interest other than those mentioned in rules 2,3 and 4. By virtue of rule 11 thereof , the Order XXII is applicable to appeals and the word “plaintiff” shall be held to include an appellant, the word “defendant” a respondent ,and the word “suit” an appeal. 6 Reliance has been placed by the learned counsel for the petitioners on the decision of the Apex Court in case of Saila Bala Dassi (supra). This was a case where the suit on mortgage was filed. Preliminary decree was passed followed by a final decree. An appeal was preferred against the final decree. In the said appeal the appellant before the Apex Court applied to be brought on record as appellant on the basis of the allegation that she had purchased the suit property from the second respondent before the Apex Court. The said application was opposed. High Court dismissed the application. In the appeal before the Apex Court, it was 6 submitted that the application made by the appellant was maintainable under Rule 10 of Order XXII of the said Code. The Apex Court also considered the provision of section 146 of the said Code. Paragraphs 7 and 8 of the decision of the Apex Court read thus : “7. It is contended on behalf of the appellant that her ap- plication is maintainable under Order 22, Rule 10 of the Civil Procedure Code, because Suit No. 158 of 1935 must be con- sidered to have been pending until the decree therein was drawn up which was in 1954, and the transfer in her favour had been made prior thereto on May 12, 1952. The decision in Lakshan Chunder Dey v. Nikunjamoni Dassi 2 is relied on, in support of this position. But it is contended for the first re- spondent that even if Suit No. 158 of 1935 is considered as pending when the transfer in favour of the appellant was made, that would not affect the result as no application had been made by her to be brought on record in the original court during the pendency of the suit. Nor could the application made to the appellate court be sustained under Order 22, Rule 10, as the transfer in favour of the appellant was made prior to the filing of that appeal and not during its pendency. This contention appears to be well-founded; but that, however, does not conclude the matter. In our opinion, the application filed by the appellant falls within Section 146 of the Civil Pro- cedure Code, and she is entitled to be brought on record un- der that section. Section 146 provides that save as otherwise provided by the Code, any proceeding which can be taken by a person may also be taken by any person claiming under him. It has been held in Sitharamaswami v. Lakshmi 7 Narasimha 3 that an appeal is a proceeding for the purpose of this section, and that further the expression “claiming under” is wide enough to include cases of devolution and assignment mentioned in Order 22, Rule 10. This decision was quoted with approval by this Court in Jugal kishore Saraf v. Raw Cotton Co. Ltd. 4 wherein it was held that a transferee of a debt on which a suit was pending was entitled to execute the decree which was subsequently passed therein, under Section 146 of the Civil Procedure Code as a person claiming under the decree- holder, even though an application for execution by him would not lie under Order 21, Rule 16, and it was further observed that the words “save as otherwise provided” only barred pro- ceedings, which would be obnoxious to some provision of the Code. It would follow from the above authorities that whoever is entitled to be but has not been brought on record under Or- der 21, Rule 10 in a pending suit or proceeding would be en- titled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code, and that accord- ingly the appellant as an assignee of the second respondent of the mortgaged properties would have been entitled to prefer an appeal against the judgment of P.B. Mukharji, J. 8. It is next contended that Section 146 authorises only the initiation of any proceeding, and that though it would have been competent to the appellant to have preferred an appeal against the judgment of P.B. Mukharji, J., she not having done so was not entitled to be brought on record as an appellant to continue the appeal preferred by the second respondent. We are not disposed to construe Section 146 narrowly in the man- ner contended for by counsel for the first respondent. That section was introduced for the first time in the Civil Procedure 8 Code, 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be con- strued liberally and so as to advance justice and not in a re- stricted or technical sense. It has been held by a Full Bench of the Madras High Court in Muthiah Chettiar v. Govinddoss Krishnadoss 5 that the assignee of a part of a decree is en- titled to continue an execution application filed by the trans- feror-decree-holder. Vide also Moidin Rutty v. Doraiswami 6. The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims, and the petition of the appellant to be brought on record as an appellant in Appeal No. 152 of 1955 must be held to be maintainable under Section 146.” (Emphasis added) The Apex Court held that the right to file appeal must be held to be carry with it the right to continue the appeal which had been filed by a person under whom the applicant claims and therefore the application made must be held as maintainable under section 146 of the said Code. 7 The learned counsel for the petitioner relied upon another decision of the Apex Court in case of Khemchand Shankar Choudhary and another Vs. Vishnu Hari Patil and others (Air 1983 SC 124). This was a case where the decree was sent under section 54 of the said Code to the Collector for effecting partition of separate share. The question before the Apex Court was whether tranferees during the pendency of the partition suit can appear in such proceedings and claim 9 equitable partition though they were not parties to the suit in which decree for partition has been passed. The Apex Court considered section 52 of the said Act of 1882. The Apex Court held that the transferee during the pendecy of the suit of the property which is subject matter of the partition can exercise all rights of transferor. 8 Another Judgment relied upon by the learned counsel for the petitioner is in case of Amit kumar Shaw and another (supra). The Apex Court considered the issue of permissibility of joinder of a transferee pendente lite in a title suit. The Apex court also considered the provisions of Rule 10 of Order XXII of the said code as well as Rule 10 of Order I of the said Code. While dealing with Rule 10 of Order XXII of the said Code in paragraph 12 the Apex Court observed thus: “12 Under Order 22 Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The court has only 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. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit.” In paragraph 14 of the Judgment the Apex Court proceeded to observed thus: 10 “14. an alienee pendente lite is bound by the final decree that may be passed in the suit. Such an alienee can be brought on record both under this rule as also under Order 1 Rule 10. Since under the doctrine of lis pendens a decree passed in the suit during the pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed.” 9 After considering the doctrine of lis pendens , in paragraph 16 the Apex Court held thus : “16. The doctrine of lis pendens applies only where the lis is 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 pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to 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 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an 11 alienee would ordinarily be joined as a party to enable him to protect his interests. The court has held that a transferee pendente lite of 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 predecessor-in- interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.” (Emphasis added) 10 Therefore, there is no absolute rule that the transferee pendente lite cannot be impleaded as a party to the pending proceeding. After considering the aforesaid decision of the Apex Court, in the case of Baker Beg, the learned Single Judge of this Court held that bringing of transferee pendente lite on record is not a matter of right but is in the discretion of the Court. In the case of Satyanarayan s/o Swaroopnarayan Khandelwal and others Vs. Chandrakalabai w/o Ramssahay Chandelwal and others [2009 (4) Mh.L.J 541] this Court held that the transferee pendente lite can be added as a proper party to protect his interest. 11 In the case of Bibi Zubaida Khatoon (supra) relied upon by the learned counsel for the first respondent, the Apex Court has reiterated that the transferee pendente lite without leave of the court cannot, as of right, seek impleadment in the suit. This Court held that it is the discretion of the Court to implead such transferee as a party. The Apex Court proceeded to observe that there is no absolute rule that transferee pendente lite shall in all cases should be joined 12 and allowed to contest the suit. This decision relied upon by the learned counsel for the first respondent reiterates that in a given case the Court has a discretion of permitting the impleadment on the application made by the transferee pendente lite. In the case of Shahjad (supra) relied upon by the learned counsel for the first respondent, Allahabad High Court was dealing with the suit for specific performance of an agreement for sale. The question was whether the impleadment of subsequent purchaser during the pendency of the suit should be allowed. The Allahabad High Court held that the purchasers slept over the matter for 7 years without any cause and there was lack of bonafides in moving the court after 7 years. The application was made at a stage when the suit was fixed for hearing. That is why the Allahabad High Court upheld the order refusing the impleadment of such transferee. The attention of this Court was also invited to the decision of the Apex Court in case of Sumtibai and others Vs. Paras Finance Co. [(2007) 10 SCC 82]. The Apex Court held that if party can show a fair semblance of title or interest in the suit property, he can certainly file an application for impleadment. 12 Now turning to the facts of the case, the petitioners have acquired alleged share of the original plaintiff-appellant during the pendency of the Appeal. The suit filed by the plaintiff has been dismissed by holding that he has failed to establish that he has a share in the suit property. It is obvious that the legal representatives of the original plaintiff have no interest in the subject matter of the suit. There is already a finding recorded against the original plaintiff that he has failed to establish that he has a share in the suit property. Therefore, there is every possibility that the appeal may not 13 be prosecuted by the legal representatives of the original plaintiffs. Moreover, the legal representatives of the original plaintiffs have not objected to the application made by the petitioners. This is not a case where for the reasons recorded, the Appellate Court has exercised discretion against the petitioner. The Appellate Court seems to have proceeded on the footing that the petitioners have no locus as the transfer is hit by section 52 of the said Act of 1882. This was a case where the Court was having a discretion to allow the said application. The Appellate Court proceeded on the erroneous footing that the petitioners had no locus. The Court completely overlooked section 146 of the said Code and ignored its power under rule 10 of the XXII of the said Code. This was a case where there was a transfer of interest by the plaintiff. The district Court has proceeded on erroneous assumption that in view of section 52 of the said Act of 1882 the application made by the petitioners cannot be considered. Considering the facts of the case, this was a case where the petitioners should have been allowed to continue the Appeal by passing an order of substitution in place of the legal representatives of the original appellant. The view taken by the District Court is completely erroneous. In the circumstances, the petition must succeed. 13 Hence, I pass the following order : i) Impugned order dated 16th march 2009 is quashed and set aside. ii) The application made by the petitioners at Exhibit-34 in Civil Appeal no.41 of 2005 stands allowed. iii) Amendment to be carried out within two weeks from the date on which the writ of this order is received by the 14 Appellate Court. iv)It is made clear that no adjudication has been made on the issue of title claimed by the original plaintiff and this Court has considered the matter for limited purpose of deciding the prayer in application at Exhibit-34. v) All contentions on merits of the appeal are kept open. vi)Writ Petition is allowed in above terms with no order as to costs. JUDGE