Civil Revision No.5436 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.5436 of 2010(O&M) Date of Decision: June 2, 2011 Gurmukh Singh and others .....Petitioners v. Janmeja Singh and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.H.S.Diwana, Advocate for the petitioners. Mr.Arvind Kashyap, Advocate for the respondents. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India read with Section 115 and Section 151 of the Code of Civil Procedure (for short `the Code') for quashing/setting aside order dated 9.4.2010, Annexure P12, passed by learned Additional District Judge, Fatehgarh Sahib, vide which application filed by Janmeja Singh, respondent no.1 under Order I Rule 10 and Order XXII Rule 10 read with Section 151 of the Code was allowed by accepting the appeal filed by him. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned appellate Court. Facts relevant for the decision of present revision petition are that Gurkesh Singh (predecessor in interest of petitioners no. 6 to 8) and others filed a suit for declaration that they are sole owners in actual and cultivating possession of the suit land and challenged the impugned order Civil Revision No.5436 of 2010(O&M) -2- dated 15.12.1993 passed in Missal No.D.D.D.P.(II) 525 dated 14.8.1989, titled as `Mewa Singh v. Gram Panchayat Deeva Ganduan' and impugned order of review dated 28.1.1994 and has also challenged the mutation and the revenue entries on the basis of aforesaid order and also challenged order dated 24.10.2002 in Missal No.D.D.D.P.(II) 516 dated 14.8.1989 passed by the Deputy Additional Director Panchayats, Patiala, in exercising powers of Collector under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961, (for short `the Act 1961') alongwith relief of permanent injunction against respondent-defendant Mewa Singh. Notice of the suit was given to respondent-Mewa Singh, who appeared and filed written statement. The case was at the initial stage when an application was moved by respondent-applicant- Janmeja Singh, for impleading him as a party in the suit under Order I Rule 10 and under Order XXII Rule 10 read with Section 151 of the Code on the plea that he had purchased property in dispute from Mewa Singh vide sale deed 3.10.2006 during pendency of the suit and he has acquired the interest in the property in dispute and hence, he is a necessary party to be impleaded. Application was dismissed by learned trial Court and, however, on appeal filed by respondent-applicant- Janmeja Singh, the same was accepted by learned Additional District Judge, Fatehgarh Sahib, vide impugned order dated 9.4.2010, while setting aside order of trial Court dated 1.8.2007. He was allowed to join the proceedings and defend the case. It has been contended by learned counsel for the petitioners- plaintiffs that subsequent vendee during the pendency of the suit without permission of the Court is not a necessary party to be impleaded in the suit Civil Revision No.5436 of 2010(O&M) -3- as transfer of the property in dispute during pendency of the suit is hit by doctrine of lis pendence. Hence, it is contended that learned first Appellate Court has committed illegality in allowing the application filed by respondent-applicant- Janmeja Singh for impleading him as a party in the proceedings. He has placed reliance upon Sarvinder Singh v. Dalip Singh and others, 1997(suppl.) Civil Court Cases 50 (S.C.) and Sanjay Verma v. Manik Roy and others, 2007(1) Civil Court Cases 401 (S.C.). On the other hand, it has been contended by learned counsel for the contesting respondent-applicant- Janmeja Singh that he has acquired the right in the property in dispute during pendency of the suit and that Mewa Singh, his vendor, has lost interest in the suit and rather he has been proceeded ex parte and is not contesting the suit. It has further been contended that contesting respondent-applicant intends to contest the suit on the same grounds on which written statement has been filed by Mewa Singh, the original defendant and that he does not want to take any other fresh plea. It is further contended that in case he is not allowed to defend the case by substituting himself in place of Mewa Singh, who has stopped contesting the suit, it would amount to decreeing the suit filed by petitioners-plaintiffs, without any contest. Hence, it is contended that Sarvinder Singh's case and Sanjay Verma's case (supra), on which reliance has been placed by learned counsel for the petitioners, are not applicable to the peculiar facts of this case. He has also placed reliance upon a judgment of this Court rendered in Gopal Singh v. Raghbir Singh and another, 2010 PLR Vol.CLXI 145. The fact that original respondent-defendant has stopped contesting the suit and has been proceeded ex parte, after selling the land in Civil Revision No.5436 of 2010(O&M) -4- dispute in favour of respondent-applicant-Janmeja Singh, has not been disputed by counsel for the petitioners. Hence, if respondent-applicant-Janmeja Singh, who is subsequent vendee is not permitted to be impleaded as a party to contest the suit on the same ground, on which the suit was being contested by Mewa Singh, the same would amount to decreeing the suit filed by petitioners- plaintiffs without any contest. In Dhurandhar Prasad Singh v. Jai Parkash University and others 2001(3) Civil Court Cases 205 (S.C.): 2001(2) Apex Court Journal 65 (S.C.): 2001(6) SCC 534, which was also referred by Hon'ble Apex Court while deciding Sanjay Verma's case (supra), on which reliance has been placed by learned counsel for the petitioners, it was observed as under: “7. Under Rule 10, Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against persons upon whom such interest has devolved and this entitles, the person who has acquired an interest in the subject matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the Court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the Plaintiff on record, and yet, as pointed out by their Lordships of the Judicial Committee in Moti Lal v. Karab- ud-Din (ILR (1898) 25 Cal. 179) he will be bound by the Civil Revision No.5436 of 2010(O&M) -5- result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. It is also plain that 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, as Lord Kingsdown of the Judicial Committee said in Prannath Roy Chowdry v. Rookea Begum [(1857-60) 7 MIA. 323], a cause of action is not prolonged by mere transfer of the title. 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.” In the present case, respondent-applicant claims to the purchaser of the suit property from defendant during pendency of the suit. Hence, as has been held by Hon'ble Apex court in Dhurandhar Prasad Singh's case (supra) that under Order XXII Rule 10 of the Code, the suit may with the leave of the Court be continued by or against transferee. The defendant having sold the suit property to respondent-applicant during the pendency of the suit, has stopped to defend the suit as he is not left with any right, title or interest in the suit property. Hence, in view of these peculiar facts, it has become necessary to implead respondent-applicant-Janmeja Singh as a party to the suit to replace the contesting defendant under Order XXII Rule 10 of the Code. Moreover, it has been contended by learned counsel for the respondent- applicant that he would not raise any new plea and that he would contest the suit on the pleas already taken by his vendor, i.e., Mewa Singh-the Civil Revision No.5436 of 2010(O&M) -6- defendant and that he would be bound by the pleadings taken by Mewa Singh-defendant. Hence, in view of these facts, it cannot be said that any illegality or material irregularity has been committed by learned first appellate Court in allowing the application filed by respondent-applicant- Janmeja Singh to join the proceedings and to defend the case or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others, 2003(6) SCC 675 : AIR 2003 SC 3044: 2004(1) RCR (Civil) 147, that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:- “Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.” Hence, the present revision petition is, hereby, dismissed being devoid of any merit. However, as already discussed above, it is made clear that respondent-applicant-Janmeja Singh would be bound by the pleadings already taken by Mewa Singh-defendant and that he would contest the same on the same pleadings from the stage Mewa Singh-defendant stopped Civil Revision No.5436 of 2010(O&M) -7- defending the suit. 2.6.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.