kbp 1 3308-97.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBA CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3308 OF 1997 M/s.Sun Knitting Works ..Petitioners Vs. Mrs.Sumanben Veerkumar Shah and ors. ..Respondents ......... Mr.Rajesh Patil i/b.Miss.Mayuri Gosar, for petitioners. ....... CORAM : A.S.OKA, J.. DATE : 12 th OCTOBER, 2009. JUDGMENT:- 1] The submissions of the learned counsel for the petitioners were heard on earlier date. None appears for the respondent. 2] The petitioners are the original plaintiffs. The third respondent is the original defendant. The petitioners filed a suit against the third respondent for declaration that the petitioners are tenants in respect of the suit premises more particularly described in the plaint. The suit was contested by the third respondent by filing a written statement. Various issues were framed by the trial court. The trial Court decreed the suit on 3 rd December, 1988. 3] An application for setting aside the said decree was filed by the first and second respondents. In the said application, it was contended that the third kbp 2 3308-97.sxw respondent surrendered its lease hold rights on 27th March, 1981 in favour of M/s.Bole Brothers and on that date, M/s.Bole Brothers conveyed the suit property to the first and second respondents. It is contended that by a communication dated 27 th/31 st March, 1981, the third respondent informed all tenants including the petitioners regarding surrendering of leasehold rights to M/s.Bole Brothers and on the same day M/s.Bole Brothers, by a communication, informed the tenants including the petitioners that they have sold the suit property to the first and second respondents. It is contended that by suppressing these material facts, the petitioners proceeded with the suit and the Court passed a decree against the third respondent though the third respondent was no longer the landlord. It is alleged that after the first and second respondents came to know about the decree, they filed an application for setting the ex-parte decree. The said application came to be allowed by the impugned judgment and order and the ex-parte decree has been set aside. This is the order which is the subject matter of challenge in this writ petition under Article 227 of the Constitution of India. 4] Learned counsel for the petitioners has invited my attention to the averments made in the application for setting aside the ex-parte decree as well as the impugned order. It is submitted that the application under Rule 13 of Order IX read with Section 146 of the Code of Civil Procedure, 1908 was not maintainable at the instance of the first and second respondents. He submitted kbp 3 3308-97.sxw that the tenancy of the petitioners was not at all attorned to the first and second respondents, and therefore, the first and second respondents cannot become landlord of the petitioners. He submitted that there is no material on record to show that the petitioners were served any the letter of allotment. He submitted that in view of the law laid down by the Apex Court in the case of Dhurandhar Prasad Singh Vs.Jai Prakash University and ors. [(2001)6 SCC 534], it was not obligatory for the petitioners to implead the 1st and 2nd respondents as a parties to the suit. He submitted that even the first and second respondents were aware of the pendency of the suit and they did not take any steps. He invited my attention to the letter dated 2 nd June, 1987 send by the advocate for the petitioners to the advocate for the first and second respondents in response to the letter dated 2 nd May, 1987 send by the advocate for the first and second respondents. He pointed out that inspection of the documents was demanded by the advocate for the petitioners to the advocate for first and second respondents, however, inspection was not given. He urged that there is no authentic communication from landlord about the transfer in favour of the first and second respondents. He submitted that first and second respondents are bound by the decree. It is, therefore, submitted that the application for setting aside the ex-parte decree ought not to have been entertained and allowed. 5] I have carefully considered the submissions. The case of the petitioners is that they were not served with letter of attornment issued by the original kbp 4 3308-97.sxw landlord. The advocate for first and second respondents addressed a notice to the petitioners on 2 nd May, 1997 in which a demand was made for payment of arrears of rent. The said notice was replied by the advocate for petitioners on 2 nd June, 1997 in which specific reference to the suit subject matter of this petition was made. It was pointed out that even address of the first and second respondent was not mentioned in the notice. The first and second respondents were called upon to give inspection of the documents relating to their title of the suit property. Reliance was placed on a communication dated 3 rd September, 1982 by which the tenants were informed that the third respondent have surrendered their leasehold rights in favour of the original owner M/s.Bole Brothers. By a communication dated 27th/31st March, 1981, M/s.Bole Brother informed the petitioner and other tenants that they have sold the suit property by a registered conveyance in favour of the first and second respondents. Thus, the petitioners were made aware that the first and second respondents had purchased the suit property. Similarly, the first and second respondents were made aware of the pendancy of the suit. 6] Learned counsel for the petitioners relied upon a decision the case of Dhurandhar (Supra). The Apex Court considered relevant provisions of the Code of Civil Procedure, 1908 including Rule 10 of Order XXII of the said Code. Two questions were framed for determination which reads thus:- "1. Whether in a case of devolution of interest during the pendency kbp 5 3308-97.sxw of a suit as postulated under Order 22 Rule 10 of the Code, decree passed against the predecessor-in-interest without bringing the successor-in-interest on the record would make the decree a nullity and the same can be executed against such a person who was not impleaded as party? 2. Whether application under Order 22 Rule 10 seeking leave of the court is required under law to be filed by that person alone upon whom interest has devolved during the pendency of the suit and by nobody else? After considering the law, in paragraph 7 the Apex Court observed thus:- 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, be leave of the court, be continued by or against persons upon whom such interest has evolved 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. In paragraph 24 the Apex Court observed thus:- 24. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it s plain that executing court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the kbp 6 3308-97.sxw same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the sake was passed in ignorance of such a provision of law or the law was promulgated making a decree in executable after its passing. In the case on hand, the decree was passed against the Governing Body of the College which was the defendant without seeking leave of the court to continue the suit against the University upon whom the interest of the original defendant devolved and impleading it. Such an omission would not make the decree void ab initio so as to invoke application of Section 47 of the Code and entail dismissal of execution. The validity or otherwise of a decree may be challenged by filing a properly constituted suit or taking any other remedy available under law on the ground that the original defendant absented himself from the proceeding of the suit after appearance as he had no longer any interest in the subject of dispute or did not purposely take interest in the proceeding or colluded with the adversary or any other ground permissible under law. (underline supplied) As far as second question is concerned, the Apex Court answered the same in paragraph 26. The Apex Court observed thus:- ............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 kbp 7 3308-97.sxw 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 subject-matter 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 the 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 co-sharer 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. (underline supplied) kbp 8 3308-97.sxw 7] In the present case, the petitioners were fully aware regarding surrender of leasehold rights by the third respondent in favour of M/s.Bole Brothers. The petitioners were posted with the knowledge of the conveyance executed by M/s.Bole Brothers in favour of the 1st and 2nd respondents at least in May, 1997 when a notice was served to then. In fact the said notice was replied by the advocate for petitioners stating that the first and second respondent can apply to the trial Court for impleading themselves as parties to the suit. The petitioners have therefore taken a risk of continuing the suit against the third defendant though to their knowledge the third respondent had ceased to be their landlord. The result of the impugned order is that the trial Court has set aside the decree passed in favour of the petitioner. The trial Court has set aside the ex-parte decree passed against the third respondent who was not a landlord of the petitioner on that day on which the decree was passed. Though the petitioners had knowledge that the third respondent was no longer the landlord and the first and second respondents are claiming assignment from the third respondent, the petitioners took the risk of prosecuting the suit against the third respondent without impleading the first and second respondents. To the knowledge of the petitioner, the third respondent had no subsisting interest in the suit premises. Considering this conduct of the petitioners, this is not a case where interference can be made in writ jurisdiction under Article 227 of the Constitution of India. By setting aside the decree there is no prejudice to the petitioners in as much as the kbp 9 3308-97.sxw petitioners had obtained the decree against a person was no longer their landlord. The petitioners have an option available of seeking leave to proceed with the suit against the first and second respondents. It must be stated here that this Court while issuing Rule has stayed the proceedings of the suit which was restored. Even if the petitioners still desire to prosecute the suit against the first and second respondents, they can do so even as of today, provided they make an application before the trial Court within a period of four months from today. If such an application is made by the petitioners within four months from today, the trial Court shall grant the same and shall permit the petitioners to prosecute the suit as against the first and second respondents by impleading the said respondents as parties to the suit. 8] Subject to the directions issued as aforesaid, no interference can be made in writ jurisdiction. The petition is, accordingly, dismissed. ( A.S.OKA, J. )