1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 254 OF 2009 Mumbai Internatiojnal Airpot Pvt. Ltd. ... Appellant. Vs. Edward alias Adward Paul Machado & Anr. ... Respondents. Mr. Virag Tulzapurkar, Birendra Saraf, AbhijeetMarathe i/b Wadia Ghandy & Co. for the Appellant. Mr. K.P. Tiwari for the Respondent No.1. Mr. Mayur Shetty i/b M.V. Kini & Co. for the Respondent No.2. CORAM: R.V. MORE, J. DATED : 17TH JULY, 2009 P.C.: 1 Heard. Admit. By consent of the learned counsel appearing for the respective parties matter is taken up for final hearing. 2 The respondent No.1 is the original plaintiff, he filed L.C. Suit No. 5890 of 2004 against respondent No.2 and 3 for protecting his possession over the suit properties more appropriately described in para No.2 of the plaint. The respondent No.1/plaintiff claims title to the suit property on the basis of adverse possession. 2 3 The appellant took out Chamber Summons No. 970 of 2007 before the trial court for impleading them as party respondents in the suit. The case of the appellant was that the part of the suit property was leased out to them by an agreement dated 26th April, 2006, therefore, they are having interest in the suit land and any order in the suit may affect their interest adversely. This Chamber Summons No. 970 of 2007 was objected by the respondents and the learned trial Judge by the impugned order dismissed the same. 4 Mr. Saraf learned counsel for the appellant invited my attention to the subsequent development brought on record by filing Civil Application No. 302 of 2009. Statement is made in this Civil Application that on 15th of May, 2009, the balance portion of the suit property is leased out to the appellant. He relied upon the decision of the Hon’ble Apex Court in Amit Kumar Shaw and another Vs. Farida Khatoon and another reported in AIR 2005 Supreme Court 2209 and submitted that the appellant deserves to be impleaded as a party respondent to the suit filed by the respondent/plaintiff. 5 Mr. Tiwari learned counsel appearing for the respondent/plaintiff per contra supported the impugned order. He submitted that the trial court rightly rejected the appellant’s Chamber Summons on the ground 3 that the lease deed dated 26th April, 2006 was executed when the order of status-quo was in force. He also submitted that this subsequent lease deed is executed after passing of the impugned order and therefore he had no opportunity to controvert the contentions made therein. Mr. Tiwari learned also counsel challenged the maintainability of the A.O. 6 Learned counsel Mr. Shetty appearing for the respondent No.2 admitted execution of earlier as well as subsequent lease deed in favour of the present appellant. 7 Having heard learned counsel for the respective parties and having gone through the compilation of the A.O. along-with impugned order and the ratio of the case law cited before me, I am of the considered opinion that there is merit in the contention of the appellant. Perusal of the impugned order discloses that the appellant’s Chamber Summons was referred on two grounds: Firstly, the lease deed dated 26th April, 2006 was executed inspite of the order of status-quo in force; and Secondly, under said lease deed all the suit properties were not leased to the appellant. So far as the first ground is concern, I have perused the Roznama of the suit. On 22.12.2004 the Court passed order as follows: “Adv. Thorat for plff, Adv. Gandhy for deft. B.G. Kamble surveyor of deft. Present. He submitted that 4 right now there is standing visitable crop of the plff. In about 6-7 ekar of land in dispute. He undertake to protect that much standing crop till next date. Heard argument for both sides. Adjd. For order to 13.1.05.” 8 This order was continued from time to time. The learned trial court construed this order as the order of status-quo and concluded that the lease deed could not have been executed when this order was in force. By the order dated 22.12.2004 protection only to the standing crop was given and this protection was continued from time to time. In that view of the matter, I find observation of the learned trial judge that the lease deed was executed during operation of the order of the status-quo is not correct. 9 So far as the second ground of objection is concern, the same will not survive, in view of the subsequent lease deed dated 15th May, 2009 by which balance of the suit properties were leased by respondent No.2 to the present appellant. This lease deed is admitted by Mr. Shetty learned counsel for the respondent No.2. Thus, I find no substance in the grounds of the objection that all the properties are not leased to the appellant. 5 10 Now let us consider learned counsel Mr. Tiwari’s objection regarding maintainability of the appeal. Appellant filed Chamber Summons for impleading themselves as party respondent on the ground that interest in the suit property is assigned in their favour. Chamber Summons thus can be considered under the provisions of Order I, Rule 10 as well as Order XXII, Rule 10 of the Code of Civil Procedure, 1908. Though the appeal is not maintainable against an order passed under Order I, Rule 10, same is maintainable against the order passed under Order XXII Rule 10 of the Code of Civil Procedure, in view of the provisions of the Order XLIII of the Code of Civil Procedure. Thus, I do not find any merit in the objection of Mr. Tiwari regarding maintainability of the present appeal. 11 Mr. Tiwari learned counsel also submitted that subsequent lease deed is executed after passing of the impugned order and therefore, trial court could not consider the same and requested for remand of the matter back to the trial court for consideration of Chamber Summons afresh. This submission also in my view is without any merit, for two reasons, firstly, lease deed is admitted by the respondent No.2 and secondly under the provisions of Order XXII, Rule 10, of the Code of Civil Procedure, 1908 no detailed inquiry is contemplated. What is required to be seen is whether court is prima facie satisfied regarding assignment of the interest 6 in the suit property. I am fortified in this regard by the ratio of the Apex Court in Amit Kumar Shaw case (supra). The Apex Court in para 12 observed as follows: “12. Under Order XXII, 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.” 12 The respondent No.1 has admitted ownership of respondent No.2 and claimed title to the suit property by adverse possession. Since I have come to the conclusion prima facie that the respondent No.2 has assigned lease hold rights to the present appellant, no prejudice will be caused to the respondent No.1 if the appellant is impleaded as a party respondent in this suit. The Apex Court in para 16 of Amit Kumar Shaw Vs. Farida Khatoon supra, observed as follows: 7 “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, whether 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 pendente lite may be joined as party.” 13 Thus, taking over all view of the matter, I am of the opinion that, the appellant deserves to be impleaded as a party respondent. The appeal therefore, succeeds, impugned order is quashed and set aside, the appellant’s Chamber Summons No. 970 of 2007 is allowed in terms of 8 prayer clause (a). The respondent No.1 is directed to carry out necessary amendment in his suit within a period of six weeks from today. 14 Mr. Tiwari learned counsel appearing for the respondent No.1 at this stage seeks stay of this order to enable him to challenge the order in appellate court. Mr. Saraf learned counsel appearing for the appellant opposed the said request. The respondent No.1 is granted time of six weeks to carry out necessary amendment hence this order need not be stayed. 15 The appeal is allowed and disposed of accordingly. [R.V. MORE, J.]