IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.397 of 2006 1. Muni Lal Chaudhary 2. Shatrughan Chaudhary Both sons of Late Jang Bahadur Chaudhary, resident of Village- Godhna, Post Office-Anaith, Police Station-Udwant Nagar, District- Bhojpur. .................... (Defendants)----- Petitioners Versus ----------- 1. Smt. Sudha Devi, wife of Sri Bharat Prasad. 2. Ajay Kumar Singh, son of Sri Sudarshan Prasad Singh, Both residents of Mohalla-Nawada Arrah, Post Office and Police Station-Nawad Arrah, District-Bhojpur. 3. Moti Devi, wife of Jag Narain Chaudhary, resident of Village-Gorhana, Post office- Anaith, Police Station-Udwant Nagar, District-Bhojpur. 4. Nawal Kishore Pandey, son of Byash Pandey, resident of Village-Imadpur, Police Station-Imadpur and Tarari, District-Bhojpur. ................. (Substituted Plaintiffs) --- Opposite Parties. For the Petitioner : Mr. Shrawan Kumar, Senior Advocate with Mr. Rajiv Nayan Singh, Advocate For the Respondent : Mr. Ranjeet Tiwary, Advocate with Mr. Jitendra Kumar Tiwari, Advocate. P R E S E N T HON'BLE JUSTICE MIHIR KUMAR JHA --------------- 5 Mihir Kr. Jha, J. Heard counsel for the parties. This Civil Revision Application being barred by limitation, an application has been filed by the petitioners invoking the provisions of section 5 of the Limitation Act for condoning the delay in filing this Civil Revision Application. Considering the averments made in I.A. No. 1096 of 2006 as also the fact that this petition is barred by limitation of 18 days, only this Court would find that sufficient grounds have been made out for condoning the delay. As a matter of fact, the opposite parties have also not seriously contested the limitation matter and therefore the delay in filing of this Civil Revision Application is hereby condoned and to 2 that extent prayer made in I.A. No. 1096 of 2006 is allowed. Coming to the merits of this case, this Court would find that by the impugned order the court below has allowed the application filed by the opposite party nos. 1 to 4 under Order 22, rule 10 of the Civil Procedure Code (in short „C.P.C.‟) by holding that they were purchasers of the share of the suit property of the original plaintiff Most. Sheorato Kunwar. The court below in this regard has considered the facts and law in a very graphic manner, inasmuch as, it has been recorded therein that on 26.8.2003 Most. Sheorato Kunwar, the original plaintiff had filed a suit claiming 1/3rd share in the joint family property, being 2.52-3/4 acres of land. The court below has further recorded that Most. Sheorato Kunwar in her life time, of course after filing of the suit on 16.3.2004, had transferred the suit land by four separate sale deeds in favour of the opposite parties to the extent of 32 decimals, 26- 1/2 decimals, 7 decimals and 27-1/2 decimals. The said original plaintiff Most. Sheorato Kunwar had thereafter died on 22.7.2005 and as she was left with no Class-I heirs, the purchasers opposite parties claiming themselves to be the assignees and legal representatives of Sheorato Kunwar had filed an application on 20.8.2005 for being permitted to be added as plaintiffs in place of the deceased Sheorato Kunwar. Such prayer of the opposite parties was opposed by the petitioner by filing a rejoinder on 2.9.2005 and the Court below after considering the materials on record as also after hearing the parties had passed the impugned order on 3 10.11.2005 allowing prayer of the purchaser-opposite parties for their being made parties to the suit and substituted as plaintiffs in place of original plaintiff Smt. Sheorato Kunwar. Mr. Shrawan Kumar, learned Senior counsel appearing on behalf of the defendants-petitioners had basically assailed the impugned order by taking a plea that since the purchaser did not take permission from the Court below before getting the sale deed executed from Late Sheorato Kunwar, any such sale deed executed by Smt. Sheorato Kunwar was hit by the doctrine of Lispendence, a well settled concept in law under section 55 of the Transfer of Properties Act. Expanding his submission on the doctrine of Lispendence Mr. Kumar has also submitted that on the death of the original plaintiff Sheorato Kunwar who was having no Class-I heir, her interest could have devolved on the defendants themselves and as such when the purchaser had no capacity to represent entire estate of Sheorato Kunwar they being allowed to contest the suit as substituted plaintiff in place of Sheorato Kunwar, the original plaintiff, was against the concept of order 22, rule 3 of the C.P.C. In this context reliance was placed by him on the judgment of the Apex Court in the case of „Sanjay Verma Vs. Manik Rai & Ors‟ reported in 2006 (13) SCC 608 and in the case of Bibi Jubaida Khatoon Vs. Navi Hasan Saheb, reported in 2004 SC 173 as also in the case of Sri Ram Janki Sahkari Grih Nirman Samittee Ltd Vs. Maksudpur Institute of Research & Education in Natural & Social Sciences & Ors, reported in 2005 (1) PLJR 225. 4 On the other hand, Mr. Tiwary, learned counsel appearing on behalf of opposite party nos. 1 to 4 has submitted that four purchaser taken together had purchased the entire share of the land of the original plaintiff Sheorato Kunwar and therefore after death of Sheorato Kunwar the four purchasers were required to protect their interest as with regard to four sale deeds executed in their favour by Sheorato Kunwar, original plaintiff. Mr. Tiwary in this context has sought to make a distinction in the concept of substitution in a suit on the death of the sole plaintiff by his or her legal heir and legal representative. It was thus sought to be canvassed by him that the provisions under order 22, rule 3 of the C.P.C. cannot be made a mutual substitute for the provisions under Order 22, rule 10 of the C.P.C. as scope of two provisions are entirely different. He would, accordingly, submit that the suit filed by the sole plaintiff cannot be allowed to abate in absence of application under Order 22, rule 3 of the C.P.C by his legal heirs if there are assignees by way of legal representative who would qualify to be added as parties to the suit in place of original sole plaintiff in terms of order 22, rule 10 of the C.P.C. In this context Mr. Tiwary has also placed reliance on the judgment of the Apex Court in the case of Savitri Devi Vs. District Judge, Gorakhpur and others reported in AIR 1999 S.C. 976 as also„Dhurandhar Prasad Singh Vs. Jai Prakash University & Ors‟, reported in AIR 2001 SC 2552 and a judgment of this Court in the case of „Bharosi Sah Vs. Manik Chand Gupta & Ors‟, reported in AIR 1986 Patna 5 24. Upon considering the rival contentions of the parties, as noticed above, this Court at the very out set must record that the purpose of order 22 of the C.P.C. is to secure the sanguine object of justice that ordinarily death of plaintiff or defendant shall not cause the suit to abate if right to sue still survives. Right to sue being the touch stone for deciding substitution of the plaintiff or defendant, this Court must hold that if upon death of the original plaintiff Sheorato kunwar suit filed by her claiming 1/3rd share of the joint family property was to be dismissed on the ground of its being abated, while gainers of such dismissal of the suit could have been only the defendants-petitioners, the purchaser opposite parties could not have been looser because dismissal of suit on account of abatement due to non substitution of the original plaintiff Sheorato Kunwar could not have bound the four purchasers in any manner and they could have even then filed a fresh suit on the basis of the sale deeds executed by the Late Sheorato Kumar the original plaintiff. That by itself could have given rise to fresh set of litigation amongst the same parties, as with regard to right, title and interest in the land purchased by opposite parties from the original plaintiff. As a matter of fact, this multiplicity of litigation is sought to be avoided under the provisions of order 22, rule 10 of the C.P.C. which reads as follows:- "Procedure in case of assignment before final order in suit-(i) In other cases of an assignment, creation or 6 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(i)." The sanguine object of order 22, rule 10 of the C.P.C. therefore is to only avoid multiplicity of litigation because Order 22, rule 9 of the C.P.C. clearly lays down that where the suit abates or is dismissed under Order 22 of the C.P.C. no fresh suit shall be brought on the same cause of action. Judged in this background, this Court would find sufficient force in the submission of counsel for the opposite parties that four purchasers had a subsisting right to defend their sale deeds executed by Most. Sheorato Kunwar in her lifetime by which interest had been devolved on the four purchasers. This very aspect of comparative scope of order22, rules 3 and 10 of the C.P.C. was considered by the Apex Court in the case of Dhurandhar Prasad Singh (Supra) wherein it had been held that:- "In order to appreciate the points involved, it would be necessary to refer to the provisions of Order 22 of the Code, Rule 3 and 4 whereof prescribe procedure in case of devolution of interest on the death of a party to a suit. Under these Rules, if a party dies and right to sue survives, the Court on an application made in that behalf is required to substitute legal representatives of the deceased party for proceeding with a suit but if such an application is not filed within the time prescribed by law, the suit 7 shall abate so far as the deceased party is concerned. Rule 7 deals with the case of creation of an interest in a husband on marriage and Rule 8 deals with the case of assignment on the insolvency of a plaintiff, Rule 10 provides for cases of assignment, creation and devolution of interest during the pendency of a suit other than those referred to in the foregoing Rules and is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of suit is devolved upon another during its pendency but such a suit may be continued with the leave of the Court by or against the person upon whom such interest has devolved. But, if no such a step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by an can have the benefit of the decree, as the case may be, unless it is shown in a properly constituted proceeding that the original party being no longer interested in the proceeding did not vigorously prosecute or colluded with the adversary resulting in decision adverse to the party upon whom interest had devolved. The legislature while enacting Rules 3,4 and 10 has made clear cut distinction. In cases covered by Rules 3 and 4, if right to sue survives and no application for bringing legal representatives of a deceased party is filed within the time prescribed, there is automatic abatement of the suit and procedure has been prescribed for setting aside abatement under Rule 9 on the ground is postulated therein. In cases covered by Rule 10, the legislature has not prescribed any such procedure in the event of failure to apply for leave of the Court to continue the proceeding by or against the person upon whom interest has devolved during the pendency of a suit which shows that the legislature was conscious of this eventually and yet has not prescribed that failure would entail dismissal of the suit as it was intended that the proceeding would continue by or against the original party although he ceased to have any interest in the subject of dispute in the event of failure to supply for leave to continue by or against the person upon whom the interest has devolved for bringing him on the record. 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 pendentelite or suitor or any 8 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, (1898) ILR 25 Cal. 179. he will be bound by the result of the litigation even through he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or the 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 Vs. Rookea Begum, (1851-59)? Moo Ind App 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. The effect of failure to seek leave or bring on record the person upon whom the interest has devolved during the pendency of the suit was subject matter of consideration before this Court in various decisions. In the case of Sm. Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi, AIR 1958 SC 394. T.L. Venkatarama Aiyar, J. speaking for himself and on behalf of S.R. Das, C.J. and A. K. Sarkar and Vevlan Bose, JJ. laid down the law and if a suit is pending when the transfer in favour of a party was made, that would not affect the result when no application had been made to be brought on the record in the original Court during the pendency of the suit. ----------------------------------------------------- --------------------------------------------------- ----------------------------------------------------- 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 defendant has devolved, the suit may be continued against such a person upon whom interest has devolved, but in either eventually, 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 9 leave can be obtained by that person alone upon whom interest of 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 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 property 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 even 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, 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 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. " Thus, applying the aforesaid ratio of judgment of the Apex Court in the case of Dhurandhar Prasad Singh (Supra), this 10 Court must hold that the recourse taken by the court below by allowing the four purchasers opposite parties to be added as parties to the suit in exercise of power under Order 22, rule 10 of the C.P.C. as also transposing them as plaintiffs does not suffer from any infirmity, muchless, jurisdictional error. This Court, having found applicability of ratio of the judgment in the case of Dhurandhar Prasad Singh (Supra) to the facts of the present case, is not required to also examine the ratio of the judgment of this Court in the case of Savitri Devi (Supra) which with reference to order 1 Rule 10 C.P.C. only lays down that the purchasers are necessary parties to the suit in terms of Order 1, rule 10 of the C.P.C. This Court however must clarify that the concept and rationale of necessary parties under order 1, rule 10 of the C.P.C. cannot be ipsofacto made applicable to the special provisions under Order 22, rule 10 of the C.P.C and therefore judgment cited by learned counsel for the petitioner on the issue of Order 1, rule 10 of the C.P.C. will not strictly apply in this case where only issue is as to whether purchaser should be left to rue their fate and forced to contest yet another fresh suit on the death of the sole plaintiff through whom they had acquired interest in the suit property during pendency of the suit. This Court, would infact find that the ratio of judgment in the case of Bharosi Sah (Supra) also supports the contention of counsel for the opposite party, in as much as, there also the plaintiff had died during pendency of the suit. In that case 11 also the purchasers were impleaded as co-plaintiffs in the life time of the plaintiff himself and after his death, during pendency of the suit, they were allowed to prosecute the suit in the capacity of the plaintiff and when this aspect was challenged before this Court it was held that the addition of the transferee as a co-plaintiff, who subsequently became the sole plaintiff, had the effect of avoiding the multiplicity of the suits and that the trial court did not act illegally in allowing the transferee to be added as a plaintiff. This Court, however must take note of submission of Mr. Shrawan Kumar, learned Senior counsel of the petitioners who would place not only reliance on section 52 of the Transfer of Property Act but also on the statement of law laid down in the judgment of the Apex Court in the case of Sanjay Verma (Supra). It has to be noted that the Apex Court in the Sanjay Verma‟s case was literally dealing with the provisions of Order 1, rule 10 of the C.P.C and had examined the effect of section 52 of the Transfer of Property Act only in that background. It is equally important to note here that the Apex Court in the case of Sanjay Verma had also considered the judgment in the case of Dhurandhar Prasad Singh (Supra) and had neither distinguished nor dissented with the same holding that the same covered the cases arising out of order 22, rule 10 of the C.P.C. In fact, paragraph 12 of the judgment of the Apex Court in the case of Sanjay Verma (Supra) would only go to show that the principle of Lispendence under section 52 of the Transfer of Property Act was held to be in accordance with 12 equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. The Apex Court in the said paragraph has also held that mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject- matter of the suit. Section 52 of T.P. Act therefore in Sanjai Verma's case (supra) was held to be provision postulating a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court. This Court, therefore, would read into the ratio in the case of Sanjay Verma (Supra) to mean that the provisions of Order 22, rule 10 of the C.P.C. will not be affected by the provisions of Section 52 of the Transfer of Property Act and in a given case even if the purchaser or the person claiming alienation in interest is added as party in the suit in terms of Order 22, rule 10 of the C.P.C. and he can still walk into the shoes of the original plaintiff and in case it can be demonstrated that any alienation made in his favour was affecting the right of other party and without permission of the Court, the same will not stand as a cloud to the rights of the contesting parties. To make the things very clear in the present case merely because the purchasers have been added as parties as substituted plaintiffs in place of original plaintiff Most. Sheorato Kunwar that will not mean that if Sheorato Kunwar was 13 not entitled to her share or 1/3rd share, even then the purchasers by virtue of their sale deeds executed by Most. Sheorato Kunwar would be getting perfect title to the land conveyed to them by Sheorato Kunwar. The defendants-petitioners, therefore, in no way are going tobe prejudiced on account of addition of purchasers- opposite parties as the substituted plaintiffs,